title: Case C-64/01: Action brought on 13 February 2001 by the Commission of the European Communities against the Hellenic Republic

text:
C 108/10                EN                    Official Journal of the European Communities                                       7.4.2001
            —     annul the express rejection of the complaint           Pleas in law and main arguments
                  lodged by the appellant on 18 May 1998,
                  notified to him by registered letter of
                                                                         The Member States are required by the binding character of
                  10 December 1998;
                                                                         the third paragraph of Article 249 and Article 10 EC (ex third
                                                                         paragraph of Article 189 and Article 5 of the EC Treaty) to
      (c)   order, in any event, the defendant to pay all the            adopt the measures needed to transpose directives into national
            costs both at first instance and in the present appeal.      law before the expiry of the time-limit laid down for that
                                                                         purpose and to communicate those measures immediately to
                                                                         the Commission. That time-limit expired on 30 October
                                                                         1999 without the Hellenic Republic having notified to the
                                                                         Commission the provisions transposing the directive in ques-
Pleas and main arguments                                                 tion into national law.
                                                                         (1) OJ L 257, 10.10.1996, p. 26.
Infringement of Community law, in particular Article 33 of
the Statute of the Court of Justice, given that the obligation to
provide reasons implies, in particular, that the grounds relied
on are admissible in law, that is to say adequate, relevant, free
of errors of law and fact and consistent.
                                                                         Appeal brought on 14 February 2001 by Committee of
                                                                         the Cotton and Allied Textile Industries of the European
                                                                         Union (Eurocoton) and others against the judgment
                                                                         delivered on 29 November 2000 by the Second Chamber,
                                                                         Extended Composition, of the Court of First Instance of
                                                                         the European Communities in case T-213/97 (1) between
                                                                         Committee of the Cotton and Allied Textile Industries of
                                                                         the European Union (Eurocoton) and others and Council
                                                                           of the European Union, supported by United Kingdom
Action brought on 13 February 2001 by the Commission
of the European Communities against the Hellenic Repub-
                                  lic                                                            (Case C-76/01 P)
                                                                                (2001/C 108/15)
                           (Case C-64/01)
                                                                         An appeal against the judgment delivered on 29 November
                          (2001/C 108/14)                                2009 by the Second Chamber, Extended Composition, of the
                                                                         Court of First Instance of the European Communities in case
                                                                         T-213/97 between Committee of the Cotton and Allied Textile
                                                                         Industries of the European Union (Eurocoton) and others and
An action against the Hellenic Republic was brought before               Council of the European Union, supported by United Kingdom,
the Court of Justice of the European Communities on 13 Febru-            was brought before the Court of Justice of the European
ary 2001 by the Commission of the European Communities,                  Communities on 14 February 2001 by Committee of the
represented by Richard Wainwright, Principal Legal Adviser,              Cotton and Allied Textile Industries of the European Union
and Panagiotis Panagiotopoulos, a national civil servant on              (Eurocoton), established in Brussels, Belgium, Ettlin Gesell-
secondment to its Legal Service.                                         schaft für Spinnerei und Weberei AG, established in Ettlingen,
                                                                         Germany, Textil Hof Weberei GmbH & Co. KG, established in
                                                                         Hof, Germany, H. Hecking Söhne GmbH & Co., established in
The Commission claims that the Court should:                             Stadtlohn, Germany, Spinnweberei Uhingen GmbH, estab-
                                                                         lished in Uhingen, Germany, F.A. Kümpers GmbH & Co.,
                                                                         established in Rheine, Germany, Tenthorey SA, established in
1.    declare that, by failing to adopt and to notify to the             Eloyes, France, Les Tissages des Héritiers de G. Perrin —
      Commission, within the time-limit laid down, the laws,             Groupe Alain Thirion (HPG-GAT Tissages), established in
      regulations and administrative provisions necessary to             Comimont, France, Établissements des Fils de Victor Perrin
      comply fully with Council Directive 96/61/EC of 24 Sep-            SARL, established in Thiéfosse, France, Filatures et Tissages de
      tember 1996 (1) concerning integrated pollution preven-            Saulxures-sur-Moselotte, established in Saulxures-sur-Moselot-
      tion and control, the Hellenic Republic has failed to fulfil       te, France, Tissage Mouline Thillot, established in Thillot,
      its obligations under the EC Treaty;                               France, Filature Niggeler & Küpfer SpA, established in Capriolo,
                                                                         Italy, Standardtela SpA, established in Milan, Italy, represented
                                                                         by Clive Stanbrook QC and Philip Bentley QC, with an address
2.    order the Hellenic Republic to pay the costs.                      for service in Luxembourg.


title: Order of the Court of 11 January 2000 in Case C-295/98: Italian Republic v Commission of the European Communities (EAGGF — Clearance of accounts — Belated nature of the action — Inadmissibility)

text:
8.4.2000                 EN                     Official Journal of the European Communities                                            C 102/9
                 JUDGMENT OF THE COURT                                                         ORDER OF THE COURT
                          (Fifth Chamber)
                                                                                of 11 January 2000
                        of 24 February 2000
                                                                           in Case C-295/98: Italian Republic v Commission of the
in Case C-434/97: Commission of the European Communi-                                         European Communities (1)
                     ties v French Republic (1)
                                                                           (EAGGF — Clearance of accounts — Belated nature of the
(Action for failure to fulfil obligations — Directive
92/12/EEC — Specific tax levied on beverages with a high                                        action — Inadmissibility)
                           alcohol content)
                                                                                (2000/C 102/14)
                          (2000/C 102/13)
                    (Language of the case: French)
                                                                                (Language of the case: Italian)
(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-434/97: Commission of the European Communities
(Agents: H. Michard and E. Traversa) v French Republic (Agents
K. Rispal-Bellanger and G. Mignot) — application for a declar-
ation that, by maintaining in force the provisions of Article 26           In Case C-295/98: Italian Republic (Agent: U. Leanza, assisted
of Law No 83-25 of 19 January 1983 on the scope and tax                    by D. Del Gaizo and G. Castellani Pastoris) v Commission of
base of the ‘social security’ contribution levied on alcoholic             the European Communities (Agent: F.P. Ruggeri Laderchi) —
beverages, the French Republic has failed to fulfil its obligations        application for partial annulment of Commission Decision
under Article 3(2) of Council Directive 92/12/EEC of 25 Febru-             98/358/EC of 6 May 1998 on the clearance of the accounts
ary 1992 on the general arrangements for products subject to               presented by the Member States in respect of the expenditure
excise duty and on the holding, movement and monitoring of                 for 1994 of the Guarantee Section of the European Agricultural
such products (OJ 1992 L 76, p. 1), read in conjunction with,              Guidance and Guarantee Fund (EAGGF) (OJ 1998 L 163,
in particular, Article 20 of Council Directive 92/83/EEC of                p. 28), in so far as it makes financial adjustments to certain
19 October 1992 on the harmonisation of the structures of                  expenditure declared by the Italian Republic — the Court,
excise duties on alcohol and alcoholic beverages (OJ 1992                  composed of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho
L 316, p. 21) — the Court (Fifth Chamber), composed of:                    de Almeida, D.A.O. Edward, L. Sevón and R. Schintgen, Presi-
J.C. Moitinho de Almeida, President of the Sixth Chamber,                  dents of Chambers, P.J.G. Kapteyn, C. Gulmann, J.-P. Puis-
acting as President of the Fifth Chamber, L. Sevón, C. Gulmann,           sochet, G. Hirsch, P. Jann, H. Ragnemalm, M. Wathelet (Rap-
J.-P. Puissochet and M. Wathelet (Rapporteur), Judges; A. Sag-             porteur) and V. Skouris, Judges; S. Alber, Advocate General;
gio, Advocate General; D. Louterman-Hubeau, Principal                      R. Grass, Registrar, has made an order on 11 January 2000,
Administrator, for the Registrar, has given a judgment on                  the operative part of which is as follows:
24 February 2000, in which it:
                                                                           1. The application is dismissed as manifestly inadmissible.
1. Dismisses the application;
                                                                           2. The Italian Republic is ordered to pay the costs.
2. Orders the Commission of the European Communities to pay the
     costs.
                                                                           (1) OJ C 327 of 24.10.1998.
( 1) OJ C 94 of 28.3.1998.


title: Case T-285/02: Action brought on 20 September 2002 by Eva Vega Rodríguez against Commission of the European Communities

text:
23.11.2002             EN                      Official Journal of the European Communities                                      C 289/31
Action brought on 20 September 2002 by Eva Vega                           Action brought on 23 September 2002 by Oriental
Rodríguez against Commission of the European Com-                         Kitchen SARL against Office for the Harmonisation of
                             munities                                        the Internal Market (trade marks and designs) (OHIM)
                                                                                (Case T-286/02)
                         (Case T-285/02)
                                                                                (2002/C 289/58)
                         (2002/C 289/57)
                                                                                (Language of the case: French)
                   (Language of the case: French)
                                                                          An action against Office for Harmonisation in the Internal
                                                                          Market (trade marks and designs (OHIM) was brought before
                                                                          the Court of First Instance of the European Communities on
An action against the Commission of the European Communi-                 23 September 2002 by Oriental Kitchen SARL, whose regis-
ties was brought before the Court of First Instance of the                tered office is in Choisy-le-Roi (France), represented by Jean-
European Communities on 20 September 2002 by Eva Vega                     Jacques Sebag, lawyer. Mou Dybfros A/S, Esbjerg (Denmark)
Rodríguez, residing in Brussels, represented by Juan Ramón                was also an intervener in the proceedings before the Board of
Iturriagagoitia Bassas, lawyer.                                           Appeal.
                                                                          The applicant claims that the Court should:
The applicant claims that the Court should:
                                                                          —     annul the appeal decision of 28 June 2002 of the Office
—     annul the decision of the Commission of 25 June 2002;                     for the Harmonisation of the Internal Market;
                                                                          —     vary the decision of the Office for the Harmonisation of
—     order that she be paid compensation to make good the                      the Internal Market of 11 December 2000;
      damage suffered by her in the amount of EUR 72 292,36,
      subject to all manner of reservations, together with
      default interest at the statutory rate;                             —     reject the opposition made by Mou Dybfros A/S;
                                                                          —     uphold the registration of the trade mark KIAP MOU
—     order the defendant to pay the costs.                                     sought by Oriental Kitchen;
                                                                          —     order Mou Dybfros A/S to pay all the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
The applicant in the present case, who applied to take part               Applicant for the Com-        the applicant
in Competition COM/A/10/01, challenges the removal of                     munity trade mark:
question 25 from Test A of the selection procedure, following
the discovery of an alleged error in it. That decision prevented          The Community trade           the word mark ‘KIAP MOU’ regis-
her from obtaining the minimum requisite number of marks                  mark concerned:               tered for goods in Classes 29 and
and led to her failing that part of the test.                                                           30 (including meat and prepared
                                                                                dishes) — application No 950667
                                                                          Proprietor of the right to    Mou Dybfros A/S
In support of her arguments, and with regard to the content               the trade mark or sign
of the abovementioned question, the applicant claims that the             asserted by way of oppo-
Protocol incorporating the Schengen acquis into the European              sition in the opposition
Union is indeed the Second Protocol attached to the Treaty of
                                                                          proceedings:
Amsterdam and not, as the Commission claims, Decision
1999/436/EC.
                                                                          Trade mark or sign            the national trade mark ‘MOU’,
                                                                          asserted by way of oppo-      registered for goods in Classes 29
                                                                          sition in the opposition      and 30
                                                                          proceedings:


title: Case T-143/01: Action brought on 22 June 2001 by Raymond Maxwell against Commission of the European Communities

text:
1.9.2001                 EN                      Official Journal of the European Communities                                     C 245/29
—      Lack of legal basis                                                  Pleas in law and main arguments
       Commission Regulation (EC) No 142/98 of 21 January                   The applicant took part in Competition COM/TB/99. He
       1998 (5), which contains the provisions in force concern-            challenges his not being placed on the reserve list for the
       ing compensatory allowances, does not lay down any                   recruitment of Administrative Assistants, Senior Administrat-
       specific rule on which the Commission might base itself              ive Assistants and Principal Administrative Assistants.
       in order to ’revise downwards’ the production averages
       for the last three fishing years in the event that one of the
       members leaves a producers’ organisation.                            In support of his application, the applicant claims breach of:
—      Breach of the principle of legitimate expectations                   —     the principle of equal treatment;
                                                                            —     the procedural guarantees afforded by the Community
       According to the legislation in force when the contested                   legal system;
       regulations were adopted and entered into force, the
       applicant legitimately expected to receive higher com-               —     essential procedural requirements and, in particular,
       pensatory allowances. Such expectations were dashed                        infringement of the rules governing the running of
       when the applicable rules were changed under the                           competitions such as those laid down in Article 3(1) of
       contested provisions.                                                      Annex II to the Staff Regulations and in the ’Guide for
                                                                                selection boards and committees’;
( 1) OJ 2001 L 86, p 4.                                                     —     the legal framework of the competition notice; and
( 2) OJ 2001 L 86, p. 8.
( 3) OJ 2001 L 118, p. 12.
                                                                            —     the obligation to provide a statement of reasons.
( 4) OJ 2001 L 159, p. 10.
( 5) Commission Regulation (EC) No 142/98 of 21 January 1998
     laying down detailed rules for granting the compensatory allow-
     ance for tuna intended for the processing industry (OJ 1998 L 17,
     p. 8).
                                                                            Action brought on 20 June 2001 by Benito Latino against
                                                                                Commission of the European Communities
                                                                                (Case T-145/01)
Action brought on 22 June 2001 by Raymond Maxwell
      against Commission of the European Communities
                                                                                (2001/C 245/47)
                           (Case T-143/01)
                                                                                (Language of the case: French)
                           (2001/C 245/46)
                                                                            An action against the Commission of the European Communi-
                                                                            ties was brought before the Court of First Instance of the
                     (Language of the case: French)                         European Communities on 20 June 2001 by Benito Latino,
                                                                            residing in Lauzun (France), represented by George Vander-
                                                                            sanden and Laure Levi, lawyers.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 June 2001 by Raymond                             The applicant claims that the Court should:
Maxwell, residing in Lasne (Belgium), represented by Jean-Noël
Louis and Véronique Peere, lawyers.                                         —     annul the decision of the appointing authority of
                                                                                10 August 2000 not to acknowledge the occupational
                                                                                origin of his arthritic symptoms;
The applicant claims that the Court should:
                                                                            —     annul the consequential decisions to charge to the
—      annul the decision of the selection board for competition                  applicant the fees and incidental expenses of the doctor
       COM/TB/99 to award to the applicant for the oral test a                    appointed by the applicant to the Medical Committee
       mark too low to allow him to be placed on the reserve                      and half of the fees and incidental expenses of the third
       list;                                                                      doctor;
—      order the defendant to pay the costs.                                —     order the defendant to pay all the costs.


title: Action brought on 4 February 1997 by the Federal Republic of Germany against the Commission of the European Communities (Case C-44/97)

text:
5 . 4 . 97          FENI                    Official Journal of the European Communities                                     No C 108/9
A decision rendered in divorce proceedings ordering                    Article 9 of the Sixth Council Directive 77/388/EEC of
payment of a lump sum and transfer of ownership in                     17 May 1977 on the harmonization of the laws of the
certain property by one party to his or her former spouse              Member States relating to turnover taxes — Common
must be regarded as relating to maintenance and therefore              system of value added tax: uniform basis of assessment
as falling within the scope of the Convention of                       must be interpreted as meaning that the place where the
27 September 1968 on Jurisdiction and the Enforcement                  services principally and habitually carried out by a
of Judgments in Civil and Commercial Matters, as                       veterinary surgeon should be deemed to be supplied is the
amended by the Convention of 9 October 1978 on the                     place where the supplier has established his business or
accession of the Kingdom of Denmark, Ireland and the                   has a fixed establishment from which the services are
United Kingdom of Great Britain and Northern Ireland                   supplied or, in the absence of such a place of business or
and by the Convention of 25 October 1982 on the                        fixed establishment, the place where he has his permanent
accession of the Hellenic Republic, if its purpose is to               address or usually resides.
ensure the former spouse 's maintenance. The fact that in
its decision the court of origin disregarded a marriage                ( l ) OJ No C 208 , 12 . 8 . 1995 .
contract is of no account in this regard.
(') OJ No C 208, 12 . 8 . 1995 .
                                                                       Action brought on 4 February 1997 by the Federal
                                                                       Republic of Germany against the Commission of the
                                                                                European Communities
                                                                                ( Case C-44/97)
               JUDGMENT OF THE COURT
                                                                                ( 97/C 108/ 16
                         ( Sixth Chamber)
                        of 6 March 1997                                An action against the Commission of the European
                                                                       Communities was brought before the Court of Justice of
in Case C-167/95 (reference for a preliminary ruling from              the European Communities on 4 February 1997 by the
the Gerechtshof te 's-Hertogenbosch): Maatschap M. J. M.
                                                                       Federal Republic of Germany, represented by Ernst Roder
Linthorst, K. G. P. Pouwels and J. Scheres c.s. v. Inspecteur
                                                                       and Bernd Kloke, of the Federal Economics Ministry.
       der Belastingdienst/Ondernemingen Roermond ( ')
 (Sixth VAT Directive — Article 9 — Supply of veterinary               The applicant claims that the Court should:
                                services)
                            ( 97IC 108/15 )                            — annul          Commission            Decision   96/70 1 /EC    of
                                                                              20 November 1996 (*) amending Decision 96/311/
                                                                              EC (2 ) on the clearance of the accounts presented by
                 (Language of the case: Dutch)                                the Member States in respect of the expenditure for
                                                                              1992 of the Guarantee Section of the European
                                                                              Agricultural Guidance and Guarantee Fund (EAGGF )
                                                                              and in respect of certain expenditure for 1993 in so
   (Provisional translation; the definitive translation will be               far as the sum of DM 19 591 000 for the 'public
           published in the European Court Reports)                           storage of beef' is imposed on the Federal Republic of
                                                                              Germany by Article 2 thereof, rather than assumed by
                                                                              the EAGGF,
 In Case C-167/95 : reference to the Court under Article 177
 of the EC Treaty from the Gerechtshof (Regional Court of               — order the Commission to pay the costs .
 Appeal ), ' s-Hertogenbosch, for a preliminary ruling in the
 proceedings pending before that court between Maatschap                 Pleas in law and main arguments adduced in support:
 M. J. M. Linthorst, K. G. P. Pouwels and J. Scheres c.s. v.
 Inspecteur der Belastingdienst/Ondernemingen Roermond
 — on the interpretation of Article 9 of the Sixth Council               The Commission objected that, in the buying-in, storage
 Directive 77/388/EEC of 17 May 1977 on the                              and sale of intervention beef, the German authorities did
  harmonization of the laws of the Member States relating                not carry out suitable and adequate inspections, and that,
  to turnover taxes — Common system of value added tax:                  in particular, no documentary evidence was provided that
  uniform basis of assessment ( OJ No L 145, 13 . 6 . 1977,              all prescribed entry inspections were carried out by
  p. 1 ) — the Court ( Sixth Chamber ), composed of: G. F.                officials  of the     Bundesanstalt fur      Landwirtschaftliche
  Mancini, President of the Chamber, J. L. Murray, C. N.                  Marktordnung (Federal Office for the Organization of
  Kakouris ( Rapporteur ), P. J. G. Kapteyn and G. Hirsch,                Agricultural Markets). It also complained that inventory
  Judges; N. Fennelly, Advocate-General, L. Hewlett,                      controls were not carried out in accordance with Articles 3
  Administrator, for the Registrar, gave a judgment on                    and 4 of Regulation (EEC) No 618/90 . However, the
  6 March 1997, the operative part of which is as follows :               Commission was unable sufficiently to demonstrate, either
 ---pagebreak--- No C 108/ 10              EN                  Official Journal of the European Communities                                         5 . 4 . 97
in the initial correspondence, or in bilateral talks, or in the                supply' in Article 11 ( A) ( 3 ) ( b ) of the Sixth Council
arbitration procedure, that the inspection system gave rise                    Directive ( 77/388/EEC ) of 17 May 1977 on the
to the significant risks it claims. Moreover, the inspection                   harmonization of the laws of the Member States
reports pursuant to Regulation (EEC ) No 618/90 were                           relating to turnover taxes — Common system of
based on an erroneous interpretation of Article 3 in                           value added tax: uniform basis of assessment (') to be
conjunction with Annex II of that regulation. The                              interpreted to cover the whole cost of the redemption
requirements placed by the Commission on the inspection                        goods ?
procedure in Germany were based, as least in so far as
their contents were concerned, on Article 17 of Regulation
( EEC) No 2456/93 , a legal basis which at the time in                   2.    Are the redemption goods to be treated as ' supplies
question, namely 1992, was not yet applicable . The                            made for consideration' for the purposes of Article 5
accusation that the German inspection system was                               ( 6 ) of that Directive ?
unreliable can be seen to be untenable merely by looking
at the actual economic circumstances, since an exchange
of good quality procedure for lesser quality produce,                    3.    If the redemption goods are provided otherwise than
which the Commission regards as possible, would                                for consideration or 'free of charge', is Article 5 ( 6 )
inevitably have led to complaints from purchasers, who                         to be interpreted as requiring that the provision of
would have been defrauded in those circumstances . The                         the redemption goods be treated as a supply for
 German Government maintains that its position is further                      consideration notwithstanding that such provision is
supported by the final report of the arbitration body.                          for business purposes ?
 (') OJ No L 323 , 13 . 12 . 1996 , p . 26 .                             4.     Do any of the foregoing questions require a different
 ( 2 ) OJ No L 117, 14 . 5 . 1996 , p . 19 .                                    answer
                                                                                ( a ) where all the vouchers redeemed for any item of
                                                                                redemption goods were obtained on purchases of
                                                                                premium goods from the promoter of the scheme,
 Reference for a preliminary ruling by the VAT and Duties
                                                                                ( b ) where those vouchers were all obtained on
 Tribunal, London, by direction of that court of 15 January
  1997, in the case of Kuwait Petroleum (GB ) Ltd against                              purchases of premium goods from a trader who
               the Commissioners of Customs and Excise                                 was a participating dealer in the scheme, or
                             (Case C-48/97 )
                                                                                ( c ) where the vouchers redeemed were obtained
                              97/C 108/ 17 )                                           partly on purchases of premium goods from the
                                                                                promoter and partly on purchases of premium
                                                                                goods from one or more participating dealers ?
  Reference has been made to the Court of Justice of the
  European Communities by a direction of the VAT and
  Duties Tribunal, London, of 15 January 1997, which was                  5.     If the answer to question 3 is 'No', is the United
  received at the Court Registry /on 6 February 1997, for a                      Kingdom entitled pursuant to Article 27 of the Sixth
  preliminary ruling in the case of Kuwait Petroleum ( GB )                      Council Directive and under the derogation obtained
  Ltd against the Commissioners of Customs and Excise, on                        by it in 1977 to impose an output tax charge on the
  the following questions:                                                       promoter which is based on the cost to the promoter
                                                                                of the redemption goods in addition to the output tax
                                                                                included in the full retail price of the premium
  Where a supplier of goods operates a business promotion                         goods ?
   scheme, under which, in outline :
                                                                          H OJ No L 145, 13 . 6 . 1977, p. 1 .
   (i)     the promoter provided redemption goods for business
           purposes in accordance with the terms of the scheme;
   ( ii ) for no payment in money at the point of redemption;
                                                                          Action brought on 6 February 1997 by the Commission of
    ( iii) against the redemption of vouchers to which a                     the European Communities against the French Republic
           purchaser of premium goods became entitled by
           paying the full retail price of those goods without                                       ( Case C-49/97)
           making any identifiable monetary payment for the                                            ( 97/C 108/ 18 )
           vouchers .
     1.     Is the expression 'price discounts and rebates allowed        An action against the French Republic was brought before
            to the customer and accounted for at the time of               the Court of Justice of the European Communities on


title: Action brought on 8 March 1995 by British Railways Board against the Commission of the European Communities (Case T-80/95)

text:
13 . 5 . 95           | EN                  Official Journal of the European Communities                                 No C 119/29
     2 . Infringement of the rights of the defence: the                         ( f) the Decision does not comply with the
          applicant submits that the Commission failed to                             legislative framework ensuring the economic
          respect its right of access to the file, its right to a                     viability of trans-European networks;
          hearing and its right to the observance of time
          limits .                                                              (g) the Decision takes no account of the objective
                                                                                necessity of technical cooperation.
     3 . Breach of the principles of the proper                             3 . Misuse of power: the applicant argues that the
          administration of the competition rules: the                          Commission may, on the basis of Article 8 of
          applicant considers that by attaching to its decision                 Regulation No 17 and Article 13 of Regulation
          to grant exemption conditions which disregard                         (EEC )    No      1017/68 ,  attach  conditions    and
          freedom of contract and seriously harm the                            obligations to a decision to grant exemption, but
          economic balance of the contract, the Commission                      that its power in this field is discretionary, not
          failed to respect the principle of minimum                            unlimited . It considers that the Commission exceeds
          intervention . It also submits that the Commission
                                                                                its powers if it upsets the economic balance of a
          was wrong to give retroactive effect to the                           contract and the market conditions within which it
          conditions of the exemption; such retroactive effects                 is to be applied so substantially that a well-informed
          conflict with the Community provisions according                      trader would not have concluded it in that way of his
          to which an exemption can be revoked only in                          own volition. That is the case with the usage
          clearly defined circumstances, circumstances which                    contract .
          are not present in this case .
                                                                            4. Breach of Article 190 of the EC Treaty: the applicant
II. Breach of substantive provisions of Community law                           submits that the Decision does not comply with the
                                                                                requirements of the case-law with respect to
                                                                                statements of reasons for decisions having adverse
     1 . Breach of the principle of protection of legitimate                    effect.
          expectations: the applicant submits that traders are
          entitled to require the public authorities to take
          account of the good faith in which they took
          decisions in the previous legal context which
          continue to have effect in a new legal context; those
          decisions     are   entitled  to   some     transitional
                                                                       Action brought on 8 March 1995 by British Railways Board
          protection, the nature and duration of which must               against the Commission of the European Communities
          take account of the actual possibilities for the
          traders concerned to adapt their decisions to the                                      (Case T-80/95 )
          new legal context. That was not done by the                                             ( 95/C 119/55 )
          Commission in the present case.
                                                                                (Language of the case: English)
     2. The contested Decision was adopted in breach of
          Article 85 ( 1 ) of the EC Treaty, Article 2 of              An action against the Commission of the European
          Regulation ( EEC ) No 1017/68 and Article 53 ( 1 ) of        Communities was brought before the Court of First
          the EEA Agreement, for the following reasons:                Instance of the European Communities on 8 March 1995 by
                                                                       British Railways Board, represented by Mr Thomas Sharpe
          (a ) the Decisions contains a delimitation of the            and Mr Alexandre R. M. Nourry, with an address for service
                reference markets which is incorrect in fact and       in Luxembourg at the Chambers of Maître Jean Hoss,
                law;                                                   Elvinger & Hoss, Avocats à la Cour, 15 Côte d'Eich, BP 425 ,
                                                                       1450 Luxembourg.
          ( b ) the object of the usage contract is not a sharing      The applicant claims that the Court should:
                of markets within the meaning of Article 85 ( 1 )
                of the EC Treaty, Article 2 of Regulation ( EEC )      — annul Commission Decision 94/894/EC of 13 December
                No 1017/68 and Article 53 ( 1 ) of the EEA                  1994 (*) in its entirety, or
                Agreement;
                                                                       — alternatively, annul Article 2 .A of the Decision, and
          (c) the effect of the contract is not a sharing
                of markets within the meaning of those                 — order the Commission to pay the applicant's costs .
                provisions;
                                                                       Pleas in law and main arguments adduced in support:
          ( d ) the Decision takes no account of the weight of
                intermodal competition;                                The applicant challenges the legality of the Decision on the
                                                                       following grounds:
          (e ) the Decision takes no account of the contract's         1 . The Decision is based on an incorrect and incomplete
                pro-competitive object and effects;                         assessment of the facts and vitiated by manifest error in
 ---pagebreak--- No C 119/30        [ EN |                 Official Journal of the European Communities                                13 . 5 . 95
    law in that the Commission unlawfully refused to grant               — denied the applicant the right to be heard and acted
    a declaration that there were no grounds for the                         in breach of the principle of good administration.
    application of the provisions of Article 2 of Regulation
    (EEC ) No 1017/68 and/or Article 85 ( 1 ) of the EC              (!) OJ No L 354, 31 . 12 . 1994, p. 66 .
    Treaty and Article 53 ( 1 ) of the EEA Agreement. The
    Commission therefore has no jurisdiction under
    Article 5 of the Regulation and/or Article 85 ( 3 ) of the
    EC Treaty and Article 53 ( 3 ) of the EEA Agreement to                Removal from the register of Case T-518/93 i 1 )
    impose the conditions .                                                                    95/C 119/56
    Alternatively,                                                                  (Language of the case: French)
                                                                     By order of 28 March 1995 the President of the Second
2. The Decision is founded on an incorrect and incomplete            Chamber ( Extended Composition) of the Court of First
    assessment of the facts, vitiated by manifest error of law       Instance of the European Communities ordered the removal
    in that the conditions are unnecessary for the purpose of        from the register of Case T-518/93 : Anton Durbeck GmbH
    rendering inapplicable Article 2 of the Regulation               v. Council of the European Union and Commission of the
    and/or Article 85 ( 1 ) of the EC Treaty and Article 53 ( 1 )    European Communities .
    of the EEA Agreement.
                                                                     (M OJ No C 188 , 10 . 7. 1993 .
3 . The conditions are not necessary and are
    disproportionate to any alleged restrictions on
    competition. The conditions are also uncertain in their
    application and unduly burdensome. Consequently, the                  Removal from the register of Case T-282/94 ( ] )
    protection of the imposition of the conditions offends                                   ( 95/C 119/57
    against the principles of Community law of the
    protection of legitimate expectations, proportionality                          (Language of the case: Dutch)
    and legal certainty.
                                                                     By order of 17 March 1995 the President of the Third
                                                                     Chamber Court of First Instance of the European
4 . In imposing the conditions, the Commission has                   Communities ordered the removal from the register of
    exceeded its competence and misused its powers by                Case T-282/94: La Société en Commandite Jurope v.
    extending to the Railways, in substance, the obligation          Commission of the European Communities .
    placed by Directive 91/440/EEC upon Eurotunnel as the
    infrastructure manager. The Commission has also                  (M OJ No C 304, 29 . 10 . 1994 .
    exercised its powers under Article 5 of the Regulation
    and/or Article 85 ( 3 ) of the EC Treaty and Article 53 ( 3 )
    of the EEA Agreement to matters governed by, and in a
    manner inconsistent with, Directive 91 /440/EEC. The                  Removal from the register of Case T-359/94 ( )
    imposition of the conditions is therefore both                                           ( 95/C 119/58 )
    discriminatory and unlawful.
                                                                                (Language of the case: German)
5 . The Commission has acted in breach of essential
    procedural requirements and also in breach of                    By order of 22 March 1995 the President of the Fourth
    Article 190 of the EC Treaty and the principle of                Chamber ( Extended Composition) of the Court of First
    Community law of natural justice, thereby vitiating the          Instance of the European Communities ordered the removal
    Decision, in that the Commission:                                from the register of Case T-359/94: Schmidt + Clemens
                                                                     GmbH + Co ., Edelstahlwerke Kaiserau v. Commission of
                                                                     the European Communities.
    — failed to adduce evidence and to provide adequate
        reasons for the Decision,                                    (!) OJ No C 370, 24 . 12 . 1994 .


title: Action brought on 11 June 1997 by Bernard Bareyt and Others against the Commission of the European Communities (Case T-175/97)

text:
C 7/16               EN                 Official Journal of the European Communities                                 10. 1. 98
The applicant claims that the Court should:                             retroactively for a period of six months, pursuant to
                                                                        the new, disputed weighting,
Ð annul the decision of the selection board not to admit
     the applicant to the oral test of internal competition
                                                                   Ð order the Commission to repay to the applicants the
     CC/B/7/95,
                                                                        curtailment of salary imposed on them by it with
                                                                        effect from May 1996 on the basis of the new,
Ð order the defendant to pay the costs.                                 disputed weighting;
Pleas in law and main arguments adduced in support:
                                                                   Ð order the Commission to pay the costs.
The applicant, a former temporary member of staff, relies,
first, on a breach of the principle of equal treatment of          Pleas in law and main arguments adduced in support:
candidates and of the rules which govern the functioning
of the selection board, for the manner in which multiple
choice written tests are carried out does not ensure that          The applicants, all of whom work as officials of the
candidates are treated equally, or the objectivity of the          Commission Delegation in Tokyo or as temporary
choice of candidate made by the board.                             members of staff at the Iter Eda Centre, Naka Joint Work
                                                                   Site, Naka, object to the application to them of the
Secondly, he relies on a breach of the obligation to state         weightings fixed by Council Regulations (Euratom, ECSC,
reasons, since the board ought to have forwarded to the            EC) No 577/96, (Euratom, ECSC, EC) No 578/96 and
applicant a statement of reasons for the contested decision        (Euratom, ECSC, EC) No 579/96 laying down the
as required by Community case-law. The appointing                  weightings applicable from 1 July 1994, 1 January 1995
authority should also have verified whether the two                and 1 July 1996 respectively to the remuneration of
disputed written tests were properly administered and              officials of the European Communities serving in third
informed the applicant of the result of its investigation.         countries (1). So far as concerns Japan, those Regulations
                                                                   gave rise to an appreciable reduction of the weighting
                                                                   which fell from 214,11 points, applicable from 1 January
                                                                   1994 and still applicable in May 1996, to 179,87 points
                                                                   as from 1 July 1994, 180,24 points as from 1 January
                                                                   1995 and 186,80 points as from 1 July 1995, that is to
                                                                   say, a drop of 16 % between 1 January 1994 and 1 June
Action brought on 11 June 1997 by Bernard Bareyt and
                                                                   of that year.
Others against the Commission of the European
                        Communities
                      (Case T-175/97)                              The applicants consider that those new weightings were
                                                                   adopted in breach of the detailed rules laid down in
                         (98/C 7/52)
                                                                   Article 13 of Annex X of the Staff Regulations, inasmuch
                                                                   as the Commission failed to submit, every six months, to
               (Language of the case: French)                      the Council the proposals for new weightings and the
                                                                   Council did not observe the one- or two-month time limit
An action against the Commission of the European                   for the adoption of new weightings. Likewise, the
Communities was brought before the Court of First                  Commission did not use its power of initiative to adopt,
Instance of the European Communities on 11 June 1997               of its own motion, new weightings in the event of a
by Bernard Bareyt, residing in Naka (Japan), Ivone                 variation in excess of 5 %; whereas from June to July
Benfatto, Denis Bessette, Pier Luigi Bruzzone, Giuliano            1994 the weightings in respect of Japan were reduced, on
Dalle Carbonare, Enrico Di Pietro, Barry John Green,               a proposal of the Commission, by 20,36 % for Tokyo and
Remmelt Haange, Ronald Hemsworth, Michel Huguet,                   47,15 % for Naka.
Marcus Iseli, Neil Mitchell, Pier Luigi Mondino, Alfredo
Portone, Carlo Sborchia, Alessandro Tesini, Mike Michael
Wykes, all residing in Naka (Japan), and Michel Dupon,             In the applicants' view, the Court should also find a
residing in Tokyo (Japan), represented by Nicolas LhoeÈst,         manifest error of assessment. The contested Regulations
of the Brussels Bar, with an address for service in                represent, with regard to Japan, a reduction of 14,02 %
Luxembourg at Fiduciaire Myson SARL, 30, rue de                    between the economic parity of January and that of June
Cessange.                                                          1994. However, it cannot be imagined that the cost of
                                                                   living in Japan could have fallen by the same extent
The applicants claim that the Court should:                        between those two months. Rather, Japan's cost of living
                                                                   is practically the highest in the world, a trend which is
                                                                   more marked every year.
Ð declare Regulations (Euratom, ECSC, EC) No 577/96,
     (Euratom, ECSC, EC) No 578/96 and (Euratom,
     ECSC, EC) No 579/96 adopted by the Council of the             So far as concerns recovery of the overpayment in respect
     Union on proposal of the Commission on 25 March               of the remunerations affected by the Regulations in
     1996 to be inapplicable,                                      question as a result of the retroactive effect thereof, the
                                                                   applicants claim, first, that Article 13 of Annex X of the
Ð order the Commission to repay to the applicants the              Staff Regulations does not provide for any retroactivity for
     salary which it withheld from them in June 1996               the application of new weightings. On the contrary, it is
 ---pagebreak--- 10. 1. 98             EN                 Official Journal of the European Communities                                      C 7/17
precisely in order to avoid the need for any retroactivity              render the grant of sick leave prescribed for the
that that Article provides for six-monthly interim                      purposes of undergoing treatment in the form of a
adjustments, with the possibility of being able to make                 thermal cure subject to further conditions for which
additional interim adjustments in the event of an                       no provision is made in Article 59 of the Staff
appreciable variation in the cost of living. The                        Regulations. On the basis of the presumption that a
Commission's failure to make six-monthly adjustments to                 medical certificate is to be presumed to be regular, and
the weightings during more than two years cannot                        of the principle of its credibility, that provision
therefore justify, a posteriori, the recovery of a so-called            automatically gives rise to entitlement to sick leave for
overpayment of remuneration.                                            the whole of the period covered,
(1) OJ L 83, 2. 4. 1996, pp. 1, 4 and 7.                            Ð breach of the principles of legal certainty, of the
                                                                        protection of legitimate expectations, of respect for
                                                                        acquired rights and of non-retroactivity, and
                                                                        infringement of the second paragraph of Article 25 of
                                                                        the Staff Regulations. The applicant considers in that
                                                                        regard that, although the appointing authority
Action brought on 30 June 1997 by Donato Continolo                      referred, in its decision rejecting his complaint, to the
   against the Commission of the European Communities                   criteria for granting sick leave covering the whole of
                        (Case T-196/97)                                 the period when he was absent for the purposes of
                                                                        undergoing medical treatment in the form of a thermal
                           (98/C 7/53)
                                                                        cure, it failed to set out those criteria in a clear
                                                                        manner or to mention the legal basis justifying their
                (Language of the case: French)
                                                                        adoption. Such a statement of reasons is not relevant.
                                                                        Moreover, contrary to the statement made by the
An action against the Commission of the European
                                                                        appointing authority in its reply rejecting his
Communities was brought before the Court of First
                                                                        complaint, the criterion of serious illness is not merely
Instance of the European Communities on 30 June 1997
                                                                        one of the criteria applied for the purposes of granting
by Donato Continolo, residing at Taino (Italy),
                                                                        additional leave; it constitutes the only criterion
represented by Jean-NoeÈl Louis, Thierry Demaseure and
                                                                        currently applied. He considers that, if other criteria
Ariane Tornel, of the Brussels Bar, with an address for
                                                                        had been applied, the appointing authority should
service in Luxembourg at the offices of Fiduciaire Myson
                                                                        have brought them to the attention of the staff in a
SARL, 30, rue de Cessange.
                                                                        clear and exhaustive manner, and should have referred
                                                                        to the provisions establishing them.
The applicant claims that the Court should:
Ð annul the Commission's decision refusing to grant the             Furthermore, although the applicant underwent his
    applicant sick leave in respect of the whole of the             treatment by way of thermal cure in May and September
    period prescribed by his attending medical practitioner         1995, it was not until 1 February 1996 that the Heads of
    for the purposes of undergoing medical treatment in             Administration confirmed the criterion proposed by the
    the form of a thermal cure,                                     Interinstitutional Medical Board for the grant of the
                                                                    second part of the special leave, namely, that it should be
Ð order the defendant to pay the costs.                             granted only in the case of a thermal cure connected with
                                                                    a sickness the expenses in relation to which are
Pleas in law and main arguments adduced in support:                 reimbursable at the rate of 100 %.
The present action concerns the refusal to grant the
applicant sick leave for the whole of his periods of
absence in May and September 1995, during which he
underwent medical treatment in the form of a thermal
cure, as prescribed by his attending medical practitioner           Action brought on 2 July 1997 by Carmen JimeÂnez
and as deemed to be necessary by the medical officer of             against the Office for Harmonization in the Internal
the Joint Sickness Insurance Scheme.                                              Market (trade marks and designs)
                                                                                (Case T-200/97)
In support of his claims, he advances, in particular, the
following pleas:                                                                              (98/C 7/54)
Ð the illegality of conclusion No 207/94 of the Heads of                           (Language of the case: French)
    Administration, of the Commission's internal Directive
    No 8927 of 28 December 1994 and of the conclusion               An action against the Office for Harmonization in the
    of the Heads of Administration of 1 February 1996,              Internal Market (trade marks and designs) was brought
    inasmuch as, by authorizing the administration to               before the Court of First Instance of the European
    leave a medical certificate out of account,                     Communities on 2 July 1997 by Carmen JimeÂnez, residing
    alternatively, by providing that sick leave may be              in Luxembourg, represented by Georges Vandersanden, of
    granted only if the medical treatment is connected              the Brussels Bar, with an address for service in
    with a sickness the expenses in relation to which are           Luxembourg at the offices of the Fiduciaire Myson SARL,
    reimbursable at the rate of 100 %, those documents              30, rue de Cessange.


title: Judgment of the Court of First Instance 11 December 2001 in Case T-191/99: David Petrie and Others v Commission of the European Communities (Transparency — Public access to documents — Commission Decision 94/90/ECSC, EC, Euratom — Proceedings for failure to fulfil obligations — Formal notice — Reasoned opinion — Exception relating to protection of the public interest — Inspections and investigations — Court proceedings — Authorship rule — Direct effect of Article 255 EC)

text:
C 84/56                 EN                       Official Journal of the European Communities                                        6.4.2002
2.    For the rest, dismisses the application;                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    Orders Compañı́a Española para la Fabricación de Aceros
      Inoxidables SA to bear its own costs and to pay two-thirds of                                6 December 2001
      the Commission’s costs and orders the Commission to bear one-
      third of its own costs.                                               in Case T-196/99: Area Cova SA e.a. v Council of the
                                                                            European Union and Commission of the European Com-
                                                                                munities (1)
(1) OJ C 137 of 2.5.1998.
                                                                            (Action for compensation — Non-contractual liability —
                                                                            Fisheries — Conservation of marine resources — Convention
                                                                            on Future Multilateral Cooperation in the North-West Atlan-
                                                                            tic Fisheries — Greenland halibut — Catch quota allocated
                                                                                to the Community fleet)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2002/C 84/104)
                        11 December 2001
                                                                                (Language of the case: Spanish)
in Case T-191/99: David Petrie and Others v Commission
                of the European Communities (1)
(Transparency — Public access to documents — Commission                     In Case T-196/99, Area Cova, SA, established in Vigo (Spain),
Decision 94/90/ECSC, EC, Euratom — Proceedings for                          Armadora José Pereira, SA, established in Vigo, Armadores
failure to fulfil obligations — Formal notice — Reasoned                    Pesqueros de Aldán, SA, established in Vigo, Centropesca, SA,
opinion — Exception relating to protection of the public                    established in Vigo, Chymar, SA, established in Vigo, Eloymar,
interest — Inspections and investigations — Court proceed-                  SA, established in Estribela (Spain), Exfaumar, SA, established
 ings — Authorship rule — Direct effect of Article 255 EC)                  in Bueu (Spain), Farpespan, SL, established in Moaña (Spain),
                                                                            Freiremar, SA, established in Vigo, Hermanos Gandón, SA,
                          (2002/C 84/103)                                   established in Cangas (Spain), Heroya, SA, established in Vigo,
                                                                            Hiopesca, SA, established in Vigo, José Pereira e Hijos, SA,
                     (Language of the case: Italian)                        established in Vigo, Juana Oya Pérez, residing in Vigo, Manuel
                                                                            Nores González, residing in Marı́n (Spain), Moradiña, SA,
                                                                            established in Cangas, Navales Cerdeiras, SL, established in
                                                                            Camariñas (Spain), Nugago Pesca, SA, established in Bueu,
In Case T-191/99, David Petrie, Victoria Jane Primhak and                   Pesquera Austral, SA, established in Vigo, Pescaberbés, SA,
David Verzoni, residing respectively in Verona, Naples and                  established in Vigo, Pesquerı́as Bı́garo Narval, SA, established
Bologna (Italy), Associazione lettori di lingua straniera in Italia,        in Vigo, Pesquera Cı́es, SA, established in Vigo, Pesca Herculina,
incorporating Committee for the Defence of Foreign Lecturers                SA, established in Vigo, Pesquera Inter, SA, established in
(ALLSI/CDFL), established in Verona, represented by L. Picotti              Cangas, Pesquerı́as Marinenses, SA, established in Marı́n,
and C. Medernach, avocats, with an address for service in                   Pesquerı́as Tara, SA, established in Cangas, Pesquera Vaqueiro,
Luxembourg, v Commission of the European Communities,                       SA, established in Vigo, Sotelo Dios, SA, established in Vigo,
represented by P. Stancanelli and U. Wölker, acting as Agents,              represented by A. Creus Carreras and A. Agustinoy Guilayn,
with an address for service in Luxembourg: application for the              lawyers, v Council of the European Union, represented by
annulment of the Commission decision of 20 July 1999                        R. Gosalbo Bono, J. Carbery and M. Sims, acting as Agents,
refusing access to documents relating to Infringement Pro-                  and Commission of the European Communities, represented
cedure No 96/2208 brought under Article 226 EC against the                  by T. Van Rijn and J. Guerra Fernandez, acting as Agents,
Italian Republic and concerning the situation of foreign-                   with an address for service in Luxembourg: Application for
language lecturers employed in Italian universities, the Court              compensation pursuant to Article 235 EC and the second
of First Instance (Fourth Chamber, Extended Composition),                   paragraph of Article 288 EC in respect of loss suffered by the
composed of: P. Mengozzi, President, R. Garcı́a-Valdecasas,                 applicants as a result of (1) the acceptance by the Commission
V. Tiili, R.M. Moura Ramos and J.D. Cooke, Judges, Registrar:               and the Council of a total allowable catch for 1995 of
J. Palacio González, Administrator, has given a judgment on                27 000 tonnes of Greenland halibut in the Regulatory Area
11 December 2001, in which it has ruled:                                    defined in the Convention on Future Multilateral Cooperation
                                                                            in the North West Atlantic Fisheries and (2) the conclusion of
1.    Dismisses the action;                                                 a bilateral agreement between the Community and Canada
                                                                            and the adoption of Council Regulation (EC) No 1761/95 of
2.    Orders the applicants to pay the defendant’s costs in addition        29 June 1995 amending, for the second time, Regulation (EC)
      to their own costs.                                                   No 3366/94 laying down for 1995 certain conservation and
                                                                            management measures for fishery resources in the Regulatory
                                                                            Area as defined in the Convention on Future Multilateral
(1) OJ C 314 of 30.10.1999.                                                 Cooperation in the North-west Atlantic Fisheries (OJ 1995
                                                                            L 171, p. 1) establishing, with effect from 16 April 1995, a
                                                                            quota of 5 013 tonnes of Greenland halibut for Community


title: Action brought on 26 September 1997 by the Commission of the European Communities against the Italian Republic (Case C-336/97)

text:
22 . 11 . 97             EN                  Official Journal of the European Communities                                  C 357/ 17
a preliminary ruling in the case of Rijksdienst voor Pensi                  nen and the case-law of the Court of Justice, is it
oenen against Wim Westenborg in the following terms:                        compatible with Community law, more particularly
                                                                            Articles 5 , 48 and 51 of the Treaty, to take the view
                                                                             that the national courts may not disapply express,
                                                                             binding provisions of national law in order to
1 . Requests the Court of Justice of the European                            eliminate the adverse effects :
     Communities to give a preliminary ruling on
     the following questions, on the basis of the
     aforementioned provisions and any other provisions                     — of the application of the rUle of national law to
     which it may consider to apply in this case:                                migrant workers who have exercised their right to
                                                                                free movement,
     Is it compatible with Community law — in particular                    — of the lack of coordination between social security
                                                                                schemes of different Member States ?
     Articles 5, 48 and 51 of the Treaty of 25 March 1957
     establishing the European Economic Community and,
     more specifically, the principles of free movement of
     workers and cooperation in good faith between the
     competent authorities — to take the view that the
     relevant Belgian legislation may not be disapplied by a
     national court which concludes that an applicable
                                                                        Action brought on 26 September 1997 by the Commission
     national provision requiring a migrant worker's
     pension to be reduced — such as Article 3 ( 1 ) of the             of the European Communities against the Italian Republic
     Belgian Law of 20 July 1990 which requires a lower                                        ( Case C-336/97 )
     pension to be awarded ( at the 60% rate for a single
                                                                                ( 97/C 357/30 )
     person and not the 75 % household rate ) if the
     migrant worker's spouse receives a pension or benefit
     equivalent thereto under the legislation of a foreign
     country — and considers that it is impossible to                   An action against the Italian Republic was brought before
     interpret that national rule in such a way as to                   the Court of Justice on 26 September 1997 by the
     eliminate the unforeseen adverse effects of the lack of            Commission of the European Communities, represented
     coordination between social security schemes in the                by Paolo Stancanelli, of its Legal Service, assisted by
     interests of free movement of workers or holds that                Claudio Tesauro, of the Naples Bar, acting as Agents, with
     the application of that rule in the case in point                  an address for service in Luxembourg at the office of
     constitutes an obstacle to free movement of workers ?              Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.
                                                                        The applicant claims that the Court should:
2 . Requests the Court of Justice of the European
     Communities to give an interpretation of the scope of
                                                                        — declare that :
     its judgment in Case C-165/91 Van Munster v. Rijks
     dienst voor Pensioenen in the light of those rules of
     European law:                                                           — by not ensuring that emergency plans are drawn
                                                                                up for action outside establishments whose
                                                                                industrial activity has been notified in accordance
      ( a ) Does the reasoning set out in paragraph 21 to 31                     with Article 5 of Directive 82/501 /EEC ('), in
            of that judgment in respect of question 2 relate to                  breach of the third indent of Article 7 ( 1 ) of that
            what may be described as 'unforeseen adverse                         Directive ,
            effects of the lack of coordination between social
            security schemes'?                                               — and by not organizing inspections or other
                                                                                measures of control proper to the type of activity
                                                                                concerned, in breach of Article 7 ( 2 ) of Directive
      ( b ) In the light of paragraphs 32, 33 and 34 of that                      82/501/EEC,
            judgment, is point 2 of the operative part of that
            judgment to be interpreted as meaning that, where
            it is impossible to interpret an applicable provision       — the Italian Republic has failed to fulfil its obligations
            of national law in such a way as to eliminate the                 under the EC Treaty,
            adverse effects of its application in a specific
            situation on free movement of workers, the
            national court must apply that rule in full, or that        — order the Italian Republic to pay the costs.
            the national court must disapply that rule of
            national law ?
                                                                        Pleas in law and main arguments adduced in support:
 3 . In the light of point 2 of the operative part of the               Article 7 ( 1 ) of the Directive provides that the Member
      judgment in Van Munster v. Rijksdienst voor Pensioe               States are to set up or appoint the competent authorities
 ---pagebreak--- C 357/18                EN               Official Journal of the European Communities                                         22 . 11 . 97
who are to be responsible inter alia for ensuring that              Reference for a preliminary ruling from the College van
emergency plans are drawn up for action outside                     Beroep Studiefinanciering by judgment of that court of
establishments whose industrial activity has been notified.         26 September 1997 in the case of C. P. M Meeusen and
The competent authorities are also required, pursuant to                    Hoofddirektie van de Informatie Beheer Groep
Article 7 ( 2 ), to organize, in accordance with national                                     Case C-337/97 )
regulations, inspections or other measures of control
proper to the activity in question. It is clear that for that                                  ( 97/C 357/31 )
provision to be properly implemented, the Member States
must not only designate the competent authorities but also
ensure that emergency action plans are duly drawn up and            Reference has been made to the Court of Justice of the
that the potential effectiveness of such plans is checked, in       European Communities by a judgment of the College van
the terms laid down by the Directive .                              Beroep Studiefinanciering ( Study Finance Tribunal ) of
                                                                    26 September 1997, which was received at the Court
                                                                    Registry on 29 September 1997, for a preliminary ruling
                                                                    in the case of C. P. M. Meeusen and Hoofddirektie van de
Presidential Decree No 175/88 , as originally drafted,              Informatie Beheer Groep ( Governing Board of the
provided that prefects were to draw up the emergency                Information Management Group ) on the following
plans for action outside the establishments subject to              questions:
notification pursuant to Article 4 of that decree, on the
basis of the information supplied by manufacturers and an           IA. Does a situation such as that in the present case, in
investigation undertaken by the ministry for that purpose .               which the plaintiff's mother is employed by the
It also required inspections to be carried out by officials               limited company of which her husband is the director
appointed by the Ministry of the Environment and the                      and sole shareholder, preclude her from being
Ministry of Health from staff of the competent public                     regarded as a migrant worker within the meaning of
administrations or bodies .
                                                                          Article 48 of the EC Treaty and of Regulation ( EEC )
                                                                          No 1612/68 (')?
The Commission considered that although such rules                        If question 1A is answered in the negative :
might appear formally capable of satisfying the
requirements of Article 7 of the Directive, they proved in          IB. In the Bernini judgment the Court held that study
practice to be entirely inadequate, since, after they had                 finance awarded by a Member State to children of
been in force for some years, very few emergency action                   workers constitutes a social advantage to a migrant
plans had actually been drawn up and inspection and                       worker, as provided for in Article 7 ( 2 ) of Regulation
control activities were inadequate .                                      ( EEC ) No 1612/68 , where the worker continues to
                                                                          support the child. In such a case the child may rely
                                                                          on Article 7 ( 2 ) in order to obtain study finance
                                                                          under the same conditions as are applicable to
The successive legislative amendments notified by the                    children of national workers, and in particular
Italian authorities are not capable of remedying the                      without any further requirement as to place of
situation and thereby bringing the infringements to an                    residence . Does this rule equally apply if the migrant
end .
                                                                          worker must be regarded as a frontier worker ?
                                                                    IC . Does the rule of law in Bernini, as stated in
The Commission adds that the later amendments made to                     question IB above, also apply if the child of a
the legislation implementing the Directive, by the adoption               migrant worker, as in the present case, has never
of Law No 137/97, were not such that the infringements                    lived in the Netherlands ?
complained of were brought to an end .
                                                                    2.    Must Article 52 of the EC Treaty be interpreted in
                                                                          such a way that the safeguard provided for under the
                                                                          rule laid down in Bernini, as mentioned above in
The Commission considers that the requirements
concerning preparation of emergency plans for action                      question IB, also applies to the child of a national of
outside the establishments in question and the                            a Member State who pursues activities in another
organization of inspections or other measures of control of              Member State as a self-employed person ?
industrial activities have not yet been fully met. The
Commission is therefore of the opinion that the Italian                  To what extent is it also decisive in that connection
Republic has failed to fulfil its obligations in that respect             that the child has never been resident in the
under Community law.                                                      Netherlands, and that the parent is not resident in the
                                                                         country in which the activity as a self-employed
                                                                          person is pursued ?
(') OJ L 230, 5 . 8 . 1982, p . 1 .
                                                                    (') Official Journal, English Special Edition 1968, II, p. 475 .


title: Case C-68/99: Action brought on 25 February 1999 by the Commission of the European Communities against the Federal Republic of Germany

text:
1.5.1999                 EN                   Official Journal of the European Communities                                        C 121/13
2. If the answer to question 3(1) above is yes: in proceedings           liable, even where the journalists in question are not themselves
     by company Y against company X in the national court of             liable to contribute to the artists’ social insurance scheme.
     Member State A, is that court obliged, by virtue of the
     said Directive, to override any provision which prevents            In the Commission’s view, the artists’ social security charge
     reliance by Company Y on the substantive provisions of              objectively constitutes an employer’s contribution which ulti-
     those implementing rules?                                           mately has the effect, both for the marketing undertaking and
                                                                         for the artist of journalist concerned, of a social insurance
                                                                         contribution. That outcome, is so far as it concerns artists or
(1) Council Directive 86/653/EEC of 18 December 1986 on the              journalists who are insured, pursuant to Regulation (EEC)
    coordination of the laws of the Member States relating to            No 1408/71, under the social insurance scheme of another
    self-employed commercial agents (OJ L 382, 31.12.1986, p. 17).
                                                                         Member State, is inconsistent with the wording and purpose
                                                                         of that Regulation, according to which, in order to avoid
                                                                         double liability to pay social security contributions, persons
                                                                         liable to contribute to social security are in principle subject to
                                                                         the legislation of a single Member State only.
                                                                         Moreover, the artists’ social security charge is incompatible, in
                                                                         the form which it takes, with the principles of freedom of
Action brought on 25 February 1999 by the Commission                     establishment (Article 52 of the EC Treaty) and freedom to
of the European Communities against the Federal Repub-                   provide services (Article 59 of the EC Treaty). Where provisions
                            lic of Germany                               of Community law exempt an artist of journalist from the
                                                                         obligation to contribute to the — German — artists’ social
                                                                         insurance fund, the absence of the obligation to contribute is
                            (Case C-68/99)                               not based on particular characteristics of national legislative
                                                                         sovereignty and cannot be adjusted in accordance with purely
                           (1999/C 121/24)                               internal criteria (such as the prevention of possible distortions
                                                                         of competition).
An action against the Federal Republic of Germany was
brought before the Court of Justice of the European Communi-             (1) OJ, English Special Edition 1971 (II), p. 416.
ties on 25 February 1999 by the Commission of the European
Communities, represented by Peter Hillenkamp, Legal Adviser,
of its Legal Service, and Andreas Buschmann, a national civil
servant on secondment to its Legal Service, with an address for
service in Luxembourg at the office of Carlos Gómez de la
Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                                                                         Reference for a preliminary ruling from the Bundessozial-
The applicant claims that the Court should:                              gericht (Federal Social Court) by order of that court of
                                                                         21 January 1999 in the case of Edmund Thelen v.
                                                                                Bundesanstalt für Arbeit
a) Declare that, by applying Section 23 et seq. of the
     Künstlersozialversicherungsgesetz (law on social insurance
     for artists) inter alia to artists and journalists who reside                                  (Case C-75/99)
     in another EU Member State and normally pursue a
     self-employed activity both in that other Member State and                                    (1999/C 121/25)
     in the Federal Republic of Germany, and who are thus
     exclusively subject, as regards the social security system, to      Reference has been made to the Court of Justice of the
     the legislation of the Member State in the territory of             European Communities by an order of the Bundessozialgericht
     which they reside, the Federal Republic of Germany has              (Federal Social Court) of 21 January 1999, which was received
     failed to fulfil its obligations under Articles 51, 52 and/or       at the Court Registry on 3 March 1999, for a preliminary
     59 of the EC Treaty and Title II of Regulation (EC)                 ruling in the case of Edmund Thelen v. Bundesanstalt für
     No 1408/71 (1) (first sentence of Article 14a(2) in conjunc-        Arbeit on the following question:
     tion with Article 13(1) and 13(2)(b);
                                                                             Are Articles 6 and 7 of Regulation (EEC) No 1408/71 (1)
b) Order the Federal Republic of Germany to pay the costs.                   to be interpreted as meaning that, because of the principe
                                                                             of freedom of movement for workers, they do not preclude
                                                                             the continuance in force of a convention concluded
                                                                             between states in the field of unemployment insurance
Pleas in law and main arguments adduced in support:                          which is more advantageous for the insured person,
                                                                             although in consequence of the reference period
The funds of the German artists’ social insurance scheme are                 entitlement to unemployment insurance benefits can no
provided, as to half, by contributions made by the persons                   longer be derived from the period before the entry into
insured and, as to the other half, by an artists’ social security            force of the Regulation?
charge. The latter is levied in the form of a contribution
payable inter alia by press undertakings and other publishing
                                                                         (1) OJ, English Special Edition 1971 (II), p. 416.
houses and press agencies, and consists of a percentage of a
basis of assessment composed of the remuneration for artistic
or journalistic works or services paid to journalists by a person


title: Case C-10/03: Action brought on 10 January 2003 by Commission of the European Communities against Republic of Finland

text:
22.2.2003               EN                          Official Journal of the European Union                                            C 44/19
Action brought on 10 January 2003 by Commission of                          Action brought on 13 January 2003 by the Commission
   the European Communities against Republic of Finland                     of the European Communities against the Republic of
                                                                                Austria
                          (Case C-10/03)
                                                                                (Case C-14/03)
                          (2003/C 44/34)
                                                                                (2003/C 44/35)
An action against the Republic of Finland was brought
before the Court of Justice of the European Communities on                  An action against the Republic of Austria was brought
10 January 2003 by the Commission of the European                           before the Court of Justice of the European Communities
Communities, represented by C. Tufvesson and M. Huttunen,                   on 13 January 2003 by the Commission of the European
with an address for service in Luxembourg.                                  Communities, represented by J.C. Schieferer, of its Legal
                                                                            Service, and L. Escobar Guerrero, of its Legal Service, with an
                                                                            address for service at Wagner Centre C 254, Luxembourg-
The applicant claims that the Court should:                                 Kirchberg.
(1) declare that, by failing to adopt the laws, regulations and
                                                                            The Commission of the European Communities claims that
       administrative measures required by Directive 1999/42/
                                                                            the Court should:
       EC of the European Parliament and of the Council (1) of
       7 June 1999 establishing a mechanism for the recognition
       of qualifications in respect of the professional activities          (a)   declare that the Republic of Austria has failed to fulfil its
       covered by the Directives on liberalisation and transitional               obligations under Article 5 of Council Directive 92/72/
       measures and supplementing the general systems for the                     EEC on air pollution by ozone (1), in conjunction with
       recognition of qualifications, or at least in failing to notify            Annex I, points 3 and 4, thereto, in that it has laid down:
       those measures to the Commission, the Republic of
       Finland has failed to fulfil its obligations, and                          (1) a population information threshold (early warning
                                                                                stage) which is 20 µg/m3 higher than that in Annex I,
(2) order the Republic of Finland to pay the costs.                                     point 3, to the Directive,
                                                                                (2) contrary to Article 5 of the Directive, the require-
                                                                                ment that the thresholds value be exceeded at two
Pleas in law and main arguments                                                         measuring points at least before the public is
                                                                                informed, and
According to Article 249 of the EC Treaty, a directive is                         (3) a mean value over three hours instead of over one
binding, as to the result to be achieved, upon each Member                              hour, as laid down in Annex I, points 3 and 4, to
State, but leaves to the national authorities the choice of form                        the Directive
and methods.
                                                                                and therefore has not fully ensured, in accordance with
                                                                                the circumstances provided for in the Directive, that the
The Member States must adopt the measures necessary to                            population will be informed or warned when thresholds
incorporate the directive in the national legal system by the                     are exceeded. The Republic of Austria has accordingly
time limit fixed and must notify those measures to the                            failed fully to comply with Directive 92/72/EEC;
Commission without delay.
                                                                            (b)   order the Republic of Austria to pay the costs.
The Commission finds that the Republic of Finland has not yet
adopted those measures, or at least has not notified them to it.
                                                                            Pleas in law and main arguments
It is settled law that the Member States may not plead internal
circumstances or practical problems to justify a failure to                 The Republic of Austria has failed fully to implement in
implement by the date fixed.                                                Austrian law the provisions in Directive 92/72/EEC concerning
                                                                            the level of the threshold for ozone concentrations in the air
                                                                            (Annex I, point 3, to the Directive), the requirement that the
( 1) OJ L 201 of 31 July 1999, p. 77.                                       public be informed when values are exceeded at a single
                                                                            measuring point (Article 5 of the Directive) and the mean
                                                                            values used in setting thresholds (Annex I, points 3 and 4, to
                                                                            the Directive).