title: Action brought on 1 February 1996 by Société Bretagne Angleterre Irlande (BAI) againt the Commission of the European Communities (Case T-14/96)

text:
No C 77/ 18        1 EN |                   Official Journal of the European Communities                                    16 . 3 . 96
As regards Regulation ( EC ) No 2565/95 , the applicants, in           Government of Biscay of the other part. By the contested
seeking its annulment, claim, first of all, that it does not state     decision, the Commission considered that the new
reasons as required by Article 190 of the EC Treaty and,               agreement, which runs from 1995 to 1998 , does not
secondly, that Article 155 of the EC Treaty has been                   constitute State aid .
infringed since the Commission, which is entrusted with
safeguarding the rule of law in the Community, was aware               The applicant claims, first, that the Commission disregarded
of the unlawfulness of the basis of Regulation ( EC ) No               the principle audi alteram partem in deciding to terminate
1671 /95 , it should not have proceeded to adopt a                     the procedure laid down in Article 93 ( 2 ) without giving the
Regulation in implementation thereof.                                  complainant the opportunity to submit comments . It points
                                                                       out in that connection that at no time during the procedure
(>) OJ No C 315 , 25 . 11 . 1995 , p . 22 .                            was it informed that a new agreement had been drawn up
                                                                       and concluded between the Spanish authorities and Ferries
                                                                       Golfo de Vizcaya, an agreement of whose content it is a
                                                                       fortiori unaware; it was therefore unable to submit
                                                                       observations on the new agreement.
                                                                       The applicant also considers that the contested decision
Action brought on 1 February 1996 by Societe Bretagne                  does not satisfy the requirement under Article 190 of the EC
Angleterre Irlande (BAI ) againt the Commission of the                 Treaty to state the reasons on which it is based, since it does
                  European Communities                                 not permit the parties concerned to know the reasons which
                        ( Case T-14/96 )                               led the Commission to consider that the new agreement does
                          ( 96/C 77/38 )
                                                                       not constitute State aid or permit the Community judicature
                                                                       to exercise judicial review. The applicant adds that in
                                                                       addition to the obviously inadequate statement of reasons,
               (Language of the case: French)                          the contested decision contains manifest errors .
An action against the Commission of the European                       Secondly, the applicant claims that the agreement concluded
Communities was brought before the Court of First                      under the aegis of the Commission favours Ferries Golfo de
Instance of the European Communities on 1 February 1996                Vizcaya because it concerns either a Spanish or Basque
by Bretagne Angleterre Irlande ( Brittany Ferries ), a                 undertaking, or an undertaking having its registered office
company whose registered office is in Roscoff ( France ),              in Spain or the Basque country. By allowing and ratifying
represented by Jean-Michel Payre, of the Paris Bar, with an            such discrimination, however considerable the ensuing
address for service in Luxembourg at the Chambers of                   obstacle to freedom to provide services , the Commission has
Aloyse May, 31 Grand-rue,                                              infringed Article 6 of the EC Treaty, in conjunction with
                                                                       Articles 3f and 92 ( 1 ).
The applicant claims that the Court should :                           Lastly, the applicant alleges infringement of Article 92 ( 1 ) of
                                                                       the EC Treaty, pointing out that massive buying of Ferries
— annul the Commission's decision in State Aid C 32/93 ,               Golfo de Vizcaya transport vouchers by the Spanish
    published in the Official Journal of the European                  authorities strengthens that company's position and the
     Communities on 1 December 1995 ( OJ No C 321 ,                    question of the financial profitability or otherwise of the
    P - 4 ),                                                           ferry service thus guaranteed is irrelevant, contrary to what
                                                                       is stated in the contested decision .
— order the Commission to pay the costs .
Pleas in law and main arguments:
The applicant, a French shipping company which has for
many years operated a ferry shipping line between the ports            Action brought on 1 February 1996 by Lino Liao against the
of Plymouth ( England ) and Santander ( Spain ), states that on                       Council of the European Union
21 September 1992 it lodged a complaint with the
Commission concerning an agreement concluded between                                          ( Case T-15/96 )
the shipping company Ferries Golfo de Vizcaya SA on the                                          ( 96/C 77/39 )
one hand and the Regional Government of Biscay
( Diputacion Foral de Vizcaya ) and the Ministry of
                                                                                (Language of the case: French)
Commerce and Tourism of the Basque Government
( Gobierno Vasco ) on the other. The Commission decided to
initiate the procedure laid down in Article 93 ( 2 ) of the EC         An action against the Council of the European Union was
Treaty, since it considered that various aspects of the                brought before the Court of First Instance of the European
agreement seemed to indicate a special relationship                    Communities on 1 February 1995 by Lino Liao, residing in
involving State aid. In response to the initiation of the              Brussels, represented by Pierre-Paul van Gehuchten and
Article 93 (2 ) procedure, the agreement at issue was                  Constantin Nikis, of the Brussels Bar, with an address for
suspended and a new agreement concluded between Ferries                service in Luxembourg at the Chambers of Louis Schiltz,
Golfo de Vizcaya of the one part and the Regional                      2 Rue du Fort Rheinsheim .


title: Case C-337/02: Action brought on 20 September 2002 by the Commission of the European Communities against the Italian Republic

text:
9.11.2002                EN                   Official Journal of the European Communities                                       C 274/23
Action brought on 20 September 2002 by the Com-                          1.   In assessing whether a database is the result of a
mission of the European Communities against the Italian                       ‘substantial investment’ within the meaning of Article 7(1)
                              Republic                                        of Council Directive 96/9/EC (1) of 11 March 1996 on
                                                                              the legal protection of databases (the ‘database directive’)
                          (Case C-337/02)                                     can the maker of a database be credited with an invest-
                                                                              ment primarily intended to create something which is
                                                                              independent of the database and which thus does not
                          (2002/C 274/39)
                                                                              merely concern the ‘obtaining, verification or presen-
                                                                              tation’ of the contents of the database? If so, does it make
                                                                              any difference if the investment or part of it nevertheless
An action against the Italian Republic was brought before the                 constitutes a prerequisite for the database?
Court of Justice of the European Communities on 20 Septem-
ber 2002 by the Commission of the European Communities,
represented by Antonio Aresu and Knut Simonsson, acting as
Agents.
                                                                              AB Svenska Spel contends in this case that Fixtures
                                                                              Marketing Limited’s investment is primarily concerned
The applicant claims that the Court should:                                   with the drawing up of the fixture lists for the English
                                                                              and Scottish football leagues and not with the databases
—     Declare that, by maintaining in force Article 3(3) of Law               where the data are stored. Fixtures Marketing Limited, for
      No 10 of 10 July 1991, which lays down the conditions                   its part, argues that it is not possible to distinguish the
      to which are subject those maritime companies having                    work for the purpose of planning the game and that for
      their main offices in another Member State if they are to               the purpose of drawing up the fixture lists.
      be treated identically to Italian maritime companies so far
      as concerns participating in the Italian share of the
      conference liner traffic, the Italian Republic has failed to
      fulfil its obligations under Articles 43 and 48 EC;
—     Order the Italian Republic to pay the costs.
                                                                         2.   Does a database enjoy protection under the database
                                                                              directive only in respect of activities covered by the
                                                                              objective of the database maker in creating the database?
Pleas in law and main arguments
Article 3(3) of Italian Law No 210 of 1991 lays down, for
those maritime companies established in other Member States
                                                                              AB Svenska Spel contends that Fixtures Marketing Lim-
which intend to exercise their right to establish themselves in
                                                                              ited’s creation of the database is not intended to facilitate
Italy and participate in conference liner traffic from that
State, additional conditions which such companies are not                     football pools and other gaming activities but that
                                                                              such activities are a by-product of the purpose of the
necessarily required to fulfil in the Member State of origin. The
Commission concludes that that amounts to an infringement                     investment. Fixtures Marketing Limited, for its part,
                                                                              argues that the purpose of the investment is irrelevant
of Article 43 EC in conjunction with Article 48 EC.
                                                                              and disputes that the possibility of exploiting the database
                                                                              for football pools constitutes a by-product of the actual
                                                                              purpose of the investment in the database.
Reference for a preliminary ruling by the Högsta Dom-
stolen by order of that Court of 10 September 2002 in
the case of Fixtures Marketing Limited against AB Svenska                3.   What do the terms ‘a substantial part, evaluated qualitat-
                                Spel                                          ively and/or quantitatively, of the contents of that data-
                                                                              base’ in Article 7(1) mean?
                          (Case C-338/02)
                          (2002/C 274/40)
Reference has been made to the Court of Justice of the                   4.   Is the directive’s protection under Article 7(1) and
European Communities by order of the Högsta Domstolen                         Article 7(5) against ‘extraction and/or re-utilisation’ of the
(Supreme Court) of 10 September 2002, received at the Court                   contents of a database limited to such use as entails a
Registry on 23 September 2002, for a preliminary ruling in                    direct exploitation of the base or does the protection also
the case of Fixtures Marketing Limited against AB Svenska Spel                cover use in cases where the contents are available from
on the following questions:                                                   another source (second-hand) or are generally accessible?


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/66

         Action brought on 1 March 2004 by Åsa Sundholm against Commission of the European Communities
   (Case T-86/04)
   (2004/C 94/163)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 1 March 2004 by Åsa Sundholm, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers.
   The applicant claims that the Court should:

               —

               Annul the decision of 10 April 2003 adopting the applicant's career development report for the period from 1 July 2001 to 31 December 2002;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of her application the applicant submits that the disputed report makes reference to her justified absences and to her state of health in breach of Article 7(2) of the general provisions for implementing Article 43 of the Staff Regulations. She also pleads that there was a manifest error of assessment in that there were allegedly inconsistencies between the comments and the marks awarded to her in that report. Finally, the applicant submits that the report does not state adequate reasons, particularly as it departs from the recommendations of the Joint Evaluation Committee and must, under Article 8(7) of the general provisions for implementing Article 43 of the Staff Regulations, give reasons for doing so.


title: Judgment of the Court of First Instance of 15 December 1999 in Case T-300/97: Benito Latino v Commission of the European Communities (Officials — Occupational disease — Exposure to asbestos — Rate of permanent partial invalidity — Irregularity of the opinion of the medical board — Failure to state reasons)

text:
C 102/20                  EN                    Official Journal of the European Communities                                       8.4.2000
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                         of 17 February 2000
                                                                                of 15 December 1999
in Case T-241/97: Stork Amsterdam BV v Commission of
                  the European Communities (1)
                                                                           in Case T-300/97: Benito Latino v Commission of the
                                                                                European Communities (1)
(Competition — Administrative procedure — Examination
of complaints — Infringement of Article 85 of the EC Treaty
(now Article 81 EC) — Comfort letters — Reopening the
procedure — Statement of reasons — Duty to provide —                       (Officials — Occupational disease — Exposure to asbestos
Extent — Cooperation agreement — Exclusive mutual                          — Rate of permanent partial invalidity — Irregularity of
               supply clause — No-compete clause)                          the opinion of the medical board — Failure to state reasons)
                            (2000/C 102/39)
                                                                                (2000/C 102/40)
                      (Language of the case: Dutch)
In Case T-241/97: Stork Amsterdam BV, established in Amster-                                   (Language of the case: French)
dam, represented by A.J. Braakman, of the Rotterdam Bar,
with an address for service in Luxembourg at the Chambers of
Loesch and Wolter, 11 Rue Goethe, against Commission of
the European Communities (Agents: Wouter Wils and Hans                     In Case T-300/97: Benito Latino, a former official of the
Gilliams), supported by Serac Group, established in Paris,                 Commission of the European Communities, residing in Brus-
represented by Mary-Claude Mitchell, of the Paris Bar, with an             sels, represented initially by Olivier Eben, of the Brussels Bar,
address for service in Luxembourg at the Chambers of Guy                   with an address for service in Luxembourg at the Chambers
Harles, 8-10 Rue Mathias Hardt — application for annulment                 of Jean Tonner, 29 Rue du Fossé, Esch-sur-Alzette, and
of the decision contained in the Commission’s letter of 20 June            subsequently by Georges Vandersanden and Laure Levi, of the
1997 rejecting the complaint made by the applicant with a                  Brussels Bar, with an address for service in Luxembourg at the
view to obtaining a declaration that a cooperation agreement               offices of Société de Gestion Fiduciaire, 2-4 Rue Beck, v
it entered into with Serac Group to market complete pro-                   Commission of the European Communities (Agents: Julian
duction lines for manufacturing plastic bottles and filling them           Currall and Jean-Luc Fagnart) — application, first, for annul-
aseptically with liquid foods is incompatible with Article 85 of           ment of the Commission’s decision of 11 February 1997
the EC Treaty (now Article 81 EC) — the Court of First                     acknowledging the applicant’s occupational disease and fixing
Instance (Fourth Chamber), composed of: R.M. Moura Ramos,                  his rate of permanent partial invalidity at 5 % and, second, for
President, V. Tiili and P. Mengozzi, Judges; A. Mair, Adminis-             compensation for the non—material damage allegedly suffered
trator, for the Registrar, has given a judgment on 17 February             by the applicant — the Court of First Instance (Second
2000, in which it:                                                         Chamber), composed of: A. Potocki, President, and C.W. Bella-
                                                                           my and A.W.H. Meij, Judges; H. Jung, Registrar, has given a
                                                                           judgment on 15 December 1999, in which it:
1. Annuls the Commission’s decision contained in its letter of
     20 June 1997, rejecting the complaint made by the applicant
     seeking a declaration that a cooperation agreement between Stork      1. Annuls the Commission’s decision of 11 February 1997
     Amsterdam BV and Serac Group for marketing production lines                concerning the applicant’s request for acknowledgement of his
     for manufacturing plastic bottles and aseptically filling them             occupational disease;
     with liquid foods is incompatible with Article 85 of the EC
     Treaty (now Article 81 EC);
                                                                           2. Dismisses the remainder of the application;
2. Orders the Commission to bear its own costs and to pay those
     incurred by the applicant, apart from those occasioned to the
     applicant by the intervention of Serac which shall bear its own       3. Orders the Commission to pay the costs.
     costs, and the applicant to bear the costs it has incurred as a
     result of Serac’s intervention.
                                                                           (1) OJ C 41 of 7.2.1998.
(1) OJ C 357 of 22.11.1997.


title: Case T-379/02: Action brought on 18 December 2002 by Antonio Andolfi against the Commission of the European Communities

text:
C 44/38               EN                          Official Journal of the European Union                                        22.2.2003
The applicant claims that the Court should:                               Pleas in law and main arguments
—     annul the Commission’s decision of 14 January 2002 to
      retire the applicant on an invalidity pension set in                The applicant is an official of the Commission and worked in
      accordance with the third paragraph of Article 78 of the            the Berlaymont building, where he was exposed to asbestos.
      Staff Regulations;                                                  In 2001 the applicant asked to be given an invalidity pension
                                                                          on the basis of Article 78 of the Staff Regulations. That request
—     order the Commission of the European Communities to                 was refused by the Commission.
      pay the costs.
                                                                          The applicant claims, first, that in rejecting his complaint the
                                                                          Commission misconstrued the facts which led to the appli-
Pleas in law and main arguments                                           cant’s complaining about the malfunctioning of the Invalidity
                                                                          Committee as a result of linguistic problems.
The applicant is an official of the Commission. The contested
decision forced the applicant into retirement with the benefit            The applicant also alleges that the principles of sound adminis-
of an invalidity pension set in accordance with the third                 tration and the administration’s duty to have regard to the
paragraph of Article 78 of the Staff Regulations.                         welfare of officials were breached, as were the principle of the
                                                                          protection of legitimate expectations, the rights of the defence
                                                                          and the Charter of Fundamental Rights of the European Union.
In support of his application, the applicant alleged infringe-            The applicant complains of irregularities in the procedure
ment of Article 7 of Annex II to the Staff Regulations and                before the Invalidity Committee such as the abandonment of
infringement of the provisions relating to the operation of               scheduled medical examinations, the problem of communi-
the Invalidity Committees. According to the applicant, the                cation and the absence of a lawyer at the meeting of the
Invalidity Committee was not properly formed. The applicant               Invalidity Committee.
also argues a breach of the duty to state reasons.
Action brought on 17 December 2002 by ‘P’ against the                     Action brought on 18 December 2002 by Antonio Andol-
         Commission of the European Communities                            fi against the Commission of the European Communities
                         (Case T-377/02)                                                          (Case T-379/02)
                         (2003/C 44/72)                                                            (2003/C 44/73)
                   (Language of the case: French)                                            (Language of the case: Italian)
An action against the Commission of the European Communi-
                                                                          An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                          ties was brought before the Court of First Instance of the
European Communities on 17 December 2002 by ‘P’, rep-
                                                                          European Communities on 18 December 2002 by Antonio
resented by Juan Ramon Iturriagagoitiia, lawyer.
                                                                          Andolfi, represented by Salvatore Amato, Lawyer.
The applicant claims that the Court should:
                                                                          The applicant claims that the Court should:
—     annul the Commission’s decision of 30 September 2002
      replying to the complaint lodged on 5 July 2002 by the              —     annul the contested provision;
      applicant on the basis of Article 90 of the Staff Regu-
      lations of Officials and Other Servants of the European             —     order the European Economic Community to compensate
      Communities;                                                              the damages suffered and to be suffered by Seven Stars
                                                                                Pictures and Phoenix European S.r.l., to be liquidated in
—     order the defendant to pay all the costs of the proceedings.              the course of the proceedings, together with clerical costs.
 ---pagebreak--- 22.2.2003              EN                         Official Journal of the European Union                                            C 44/39
Pleas in law and main arguments                                           European Communities on 13 December 2002 by G.D. Searle
                                                                          LLC, Illinois, United States of America, represented by Pro-
                                                                          fessor W. A. Hoyng, lawyer.
The applicant in the present action is the representative of
Seven Stars Pictures Italia (‘SSP’), a company with its head
office in Rome and which, on 13 August 1977, applied, in the
context of the Phare-Tacis Joint Venture Programme, for a                 A further party to the proceedings before the Board of Appeal
financial contribution towards the incorporation of an Italo-             was PHYTO-ESP S.L.
Rumanian company (a joint venture project with Phoenix
European S.r.l.). It is recorded that a contribution of
EUR 81 327, together with a further EUR 4 099 in respect of
the pre-feasibility stage, was granted, whereupon an advance              The applicant claims that the Court should:
of EUR 28 311 was paid to SSP and the corresponding
contract was signed. At the end of the first phase of ‘Facility 2’
                                                                          —     annul the decision of the First Board of Appeal of the
the remainder of the contribution was paid over.
                                                                                OHIM of 1 October 2002 (Case R 627/2001-1);
According to the applicant, the relevant staff of the Com-
mission had continuously assured the abovementioned com-                  —     order the OHIM to compensate Searle for the costs of
pany that everything was in order and that all that needed to                   these proceedings.
be done was to calculate the precise amount still owing.
However, on 30 October 2001, the Commission adopted the
contested decision, refusing the joint venture company the
contribution granted by the joint venture programme.
                                                                          Pleas in law and main arguments
In support of its claims, the applicant argues that insufficient
reasons were given and that the Commission made an error in
its evaluation of the facts.                                              Registered Community           The word mark CELEBREX
                                                                          trade mark against             (No 852 372) for certain goods in
                                                                          which a request for dec-       class 5 (a.o. pharmaceuticals in
The statement of reasons given for the contested decision is              laration on invalidity has     the nature of anti-inflammatory
too concise. Mention is made of a divergence between the                  been introduced:               analgesics)
project as approved and the joint venture ultimately set up,
but no mention is made of any actual omission or discrepancy.
                                                                          Applicant for the Com-         G.D. Searle LLC
                                                                          munity trade mark:
As regards the assertion that no documents are extant that
prove that the joint venture in question became operational,
                                                                          Applicant for the declar-      PHYTO-ESP S.L.
and the allegation that no employees were even engaged and
                                                                          ation of invalidity of the
no turnover achieved, the applicant submits that it has shown
                                                                          Community trade mark:
that the joint venture is operational, that 12 professionals have
been retained and that business has been commenced, in
particular in the field of professional training.                         Trade mark or sign of          The national word mark CEREB-
                                                                          the applicant for declar-      RESP for certain goods in class 5
                                                                          ation of invalidity:           (pharmaceutical products a.o.)
The applicant claims compensation of the damages it has
suffered as a result of the contested decision.
                                                                          Decision of the Cancel-        Declaration of invalidity of the
                                                                          lation Division:               Community trade mark CELEB-
                                                                                REX
                                                                          Decision of the Board of       Dismissal of the appeal by
Action brought on 13 December 2002 by G.D. Searle LLC                     Appeal:                        G.D. Searle LLC
against the Office for Harmonization in the Internal
                              Market                                      Grounds of claim:              Infringement of Article 8(1)(b) of
                                                                                Regulation No 40/94 (1) in that
                         (Case T-383/02)                                                                 there is no likelihood of confusion
                                                                                between the marks ...
                         (2003/C 44/74)
                  (Language of the case: English)                         (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 11, p. 1).
An action against the Office for Harmonization in the Internal
Market was brought before the Court of First Instance of the


title: Appeal brought on 7 May 1996 by Jan Robert de Rijk against the judgment delivered on 7 March 1996 by the Fifth Chamber of the Court of First Instance of the European Communities in Case T-362/94 between Jan Robert de Rijk and the Commission of the European Communities (Case C-153/96 P)

text:
6 . 7. 96            LM                    Official Journal of the European Communities                                  No C 197/ 11
the Court ofJustice of the European Communities on 3 May                    shipping register to a vessel which is owned in whole or
1996 by Roberto Galtieri, represented by Pietro Como, with                  in part by the Government, a Minister of State, an Irish
an address for service in Luxembourg at the Chambers of S.                 citizen or an Irish body corporate, Ireland has failed to
Oostvogels, 13 rue Aldringen .                                             comply with Articles 6 , 48 , 52 and 58 of the EC Treaty
                                                                           and Article 7 of Commission Regulation ( EEC )
The appellant claims that the Court should :                               No 1251 /70/EEC ( 1 ) of 29 June 1970 and Article 7 of
                                                                            Council     Directive    75/34/EEC     of  17    December
( a) declare the appeal admissible and well founded;                        1974 ( 2 );
( b ) reverse the judgment of the Court of First Instance             2 , order Ireland to pay the costs of these proceedings .
       ( First Chamber );
                                                                      Pleas in law and main arguments:
(c) declare the original action brought by the appellant well
       founded ;                                                      The Commission contents that where a vessel of whatever
                                                                      type it may be is an instrument for pursuing an economic
( d ) annul the decision of the Personnel Division of the             activity, Ireland has infringed Article 52 of the EC Treaty by
       European Parliament of 19 January 1994 to recover the          restricting registration of those vessels in the Irish register
       sum of Lfrs 267 628 (as amended by the European                and the right to fly the Irish flag to those which are owned or
       Parliament's letter of 21 June 1994 );                         shared by the Government, a Minister of State, an Irish
                                                                      citizen or an Irish body corporate .
(e ) order the European Parliament to reimburse forthwith
       the sums previously deducted from the appellant's              Furthermore, the requirement laid down by Section 2 of the
       salary from February 1994 onwards;                             Mercantile Marine Act ( 1955 ) that companies should be
                                                                      established under and subject to Irish law and have their
( f) order the European Parliament to pay default interest            principal place of business in Ireland impedes the right of
       from February 1994, together with costs;                       companies which fulfil the conditions of Article 58 of the EC
                                                                      Treaty and are thereby entitled to exercise freedom of
(g) order the European Parliament to pay Lfrs 100 000 by              establishment in order to manage and operate vessels by way
       way of compensation for the non-material damage                of an agency, branch or subsidiary. As to the condition
       caused by the implementation of the abovementioned             imposed on companies to have their principal place of
       decision of 19 January 1994.                                   business in Ireland, the Commission is of the opinion that
                                                                      this condition unjustifiably precludes a company which is
Pleas in law and main arguments:                                      registered in another Member State from operating a vessel
                                                                      on the basis of a real and continuous representation situated
Infringement of Community law by the Court of First                   onshore in Ireland .
Instance, particularly as regards the assessment as to
whether the payments forming the object of the contested              Where the vessel is not an instrument for pursuing an
decision to recover the sum aforesaid were patently                   economic activity but is rather used as a pleasure craft, the
undue .                                                               Commission considers that, in providing for such
                                                                      restrictions as those mentioned above, Ireland has infringed
(M OJ No C 108 , 13 . 4 . 1996 , p. 7 .                               Articles 6, 48 and 52 of the EC Treaty, Article 7 of
                                                                      Commission Regulation ( EEC ) No 1251/70 and Article 7 of
                                                                      Council Directive 75/34/EEC .
                                                                      (!) OJ No L 142, 30. 6 . 1970, p. 24; EE 05 Fl , p. 93 .
                                                                      (2 ) OJ No L 14, 20. 1 . 1975, p. 10; EE 06 Fl , p. 183 .
Action brought on 6 May 1996 by the Commission of the
              European Communities against Ireland
                         ( Case C-151/96 )
                           ( 96/C 197/20 )
                                                                      Appeal brought on 7 May 1996 by Jan Robert de Rijk
An action against Ireland was brought before the Court of             against the judgment delivered on 7 March 1996 by the Fifth
Justice of the European Communities on 6 May 1 996 by the             Chamber of the Court of First Instance of the European
 Commission of the European Communities, represented by               Communities in Case T-362/94 between Jan Robert de Rijk
 Frank Benyon and Xavier Lewis, Legal Adviser and Member                  and the Commission of the European Communities (*)
 of the Legal Service respectively acting as Agent, with an
                                                                                (Case C-1 53/96 P)
 address for service in Luxembourg at the office of Carlos
 Gômez de la Cruz, Member of its Legal Service, Wagner                                           ( 96/C 197/21 )
 Centre, Kirchberg.
                                                                       An appeal against the judgment delivered on 7 March 1996
 The applicant claims that the Court should :                          by the Fifth Chamber of the Court of First Instance of the
                                                                       European Communities in Case T-362/94 between Jan
 1 , declare that, by maintaining in force laws, regulations           Robert de Rijk and the Commission of the European
      and administrative provisions which limit the right to           Communities was brought before the Court of Justice of the
      register a vessel other than a fishing vessel in the Irish       European Communities on 7 May 1996 by Jan Robert de
 ---pagebreak--- No C 197/ 12           EN                  Official Journal of the European Communities                                              6 . 7. 96
Rijk, represented by Nicolas Lhoest, with an address for              1 . Is the introduction by a Member State of a flexible
service in Luxembourg at the offices of Fiduciaire Myson, 1                 retirement system in accordance with Council
rue Glesener .                                                              Recommendation 82/857/EEC of 10 December 1982 on
                                                                            the principle of a Community policy with regard to
The appellant claims that the Court should :
                                                                            retirement age (*) covered by the exclusion provided for
                                                                            in Article 7 ( 1 ) ( a ) of Council Directive 79/7/EEC of
                                                                            19 December 1978 on the progressive implementation
1 , declare the appeal admissible and well founded;                         of the principle of equal treatment for men and women
                                                                            in matters of social security ( 2 ), in the sense that the
2 , consequently:                                                           fixing of a flexible retirement age for men and women,
                                                                            for instance between the ages of 60 and 65 years, cannot
    ( a ) annul the judgment delivered;                                     be treated purely and simply in the same way as the
                                                                            setting of an age for terminating employment identical
    ( b ) itself determine the case and, adjudicating on his                for everyone and, even coupled with maintenance of a
          initial application:                                              different pension calculation for men and women, is not
                                                                            necessarily contrary to the principle of equal treatment
          — annul the decision of 18 January 1994 by which                  for men and women laid down in Article 4 ( 1 ) of
              the respondent decided to reimburse to the                    Directive 79/7/EEC, since under such a system all future
              appellant the sum of Bfrs 4 412 under the                     pensioners will have the option of freely determining
              supplementary sickness insurance scheme,                      when their pension will commence on the basis of their
                                                                            own work record; this will in particular be the case if the
          — in so far as may be necessary, annul the                        system thus introduced corresponds to a necessary aim
              respondent's decision of 15 July 1994 rejecting               of the State's social policy and is justified on grounds
              the appellant's complaint dated 18 April                      unrelated to discrimination on grounds of sex ?
               1994 ,
          — order the respondent to pay the full difference           2 . If the answer is in the negative, does the achievement
              between the expenditure actually incurred and                 of the objectives laid down by Directive 79/7/EEC
              the payments due under the joint sickness                     and Recommendation 82/857/EEC, namely the
              insurance scheme, amounting in the present                    introduction of a flexible retirement age for everyone
              case to Bfrs 4 950 ,                                          and equality for men and women in matters of social
                                                                            security, when account is also taken of the combination
          — declare that the general rules implementing                     of formal equality with substantive discrimination
              the first and second paragraphs of Article 24                 existing between men and women in connection with
              of the Staff Regulations are unlawful, and                    statutory retirement pensions, require a Member State
                                                                            in mechanical fashion to level the conditions of
              consequently annul them;
                                                                            entitlement to retirement pension downwards, by
                                                                            ensuring that men and women are entitled to take a
    (c ) order the respondent to pay all the costs of the
                                                                            retirement pension, as they choose, from the lowest age
          appeal and of the proceedings at first instance .
                                                                            and according to the method of calculation applied
                                                                            hitherto to the category which became entitled from that
The pleas in law and main arguments are the same as those                   age to a retirement pension, despite the consequences for
advanced in the application at first instance .                             the financial equilibrium of retirement systems which
                                                                            were not set up on the basis of those principles ?
(!) OJ No C 380 , 31 . 12 . 1994, p . 24 .
                                                                      3 . Further, in the event that the first question is answered in
                                                                            the negative, should the solution most favourable to the
                                                                            person concerned, with regard to Community law, be
                                                                            applied to the entire work record of the person
                                                                            concerned or may it be applied only to the years of work
Reference for a preliminary ruling from the 11th Chamber                    recorded subsequent either to entry into force of the
of the Tribunal du Travail ( Labour Court), Brussels, by a                  Law introducing a flexible age of retirement, or the
judgment of that court of 22 April 1996 in the case of Louis                date of the judgment given by the Court of Justice
            Wolfs v. Office National des Pensions                           of the European Communities on 1 July 1993 in
                                                                            Case C-l 54/92 Van Cant v . Office National des
                        ( Case C-154/96 )                                   Pensions ( 3 )?
                          ( 96/C 197/22 )
                                                                      f 1 ) OJ No L 357, 18 . 12 . 1982 , p . 27; EE 05 F3 , p . 39 .
Reference has been made to the Court of Justice of the                ( 2 ) OJ No L 26 , 10 . 1 . 1979 , p . 4; EE 05 F2 , p . 174 .
European Communities by a decision of the Tribunal du                 ( 3 ) OJ No C 204 , 28 . 7 . 1993 , p . 7.
Travail ( 11th Chamber ), Brussels, of 22 April 1996, which
was received at the Court Registry on 7 May 1996 , for a
preliminary ruling in the case of Louis Wolfs v. Office
National des Pensions on the following questions :


title: Case C-405/01: Reference for a preliminary ruling by the Third Division of the Sala De Lo Contencioso-administrativo by order of that court of 4 October 2001 in the case of Colegio de Oficiales de la Marina Mercante Española, the State Administration and Asociación de Navieros Españoles (ANAVE)

text:
C 17/8                 EN                    Official Journal of the European Communities                                        19.1.2002
residing in Frankfurt am Main, Marc van de Velde, member of             A)   Do Article 39 EC (formerly Article 48 of the EC Treaty)
staff of the European Central Bank, residing in Usingen-                     and Articles 1 and 4 of Regulation (EEC) No 1612/68 (1)
Kransberg, Germany, and Maria Concetta Cerafogli, member                     of the Council of 15 October 1968 on freedom of
of staff of the European Central Bank, residing in Frankfurt am              movement for workers within the Community permit a
Main, represented by N. Pflüger, R. Steiner and S. Mittländer                Member State to reserve the posts of captain and first
— appeal against the order of the Court of First Instance of                 officer of its merchant ships to its own nationals? If the
the European Communities (Fourth Chamber) of 24 October                      reply is in the affirmative, may that reservation be
2000 in Case T-27/00 Staff Committee of the ECB and Others                   formulated in absolute terms (for all types of merchant
v ECB [2000] ECR-SC I-A-217 and II-987, seeking to have                      ships) or is it valid only in cases in which it is foreseeable
that order set aside, the other party to the proceedings being               and reasonable that it may be necessary for captains and
European Central Bank (Agents: C. Zilioli, V. Saintot and                    first officers on board actually to carry out certain public
M. López Torres) — the Court (Third Chamber), composed of:                  duties?
C. Gulmann, President of the Chamber, F. Macken (Rapporteur)
and J.N. Cunha Rodrigues, Judges; P. Léger, Advocate General;
                                                                        B)   If the national provisions of a Member State exclude from
R. Grass, Registrar, has made an order on 13 September 2001,
                                                                             the reservation of those posts to its nationals certain
the operative part of which is as follows:
                                                                             commercial shipping situations (defined on the basis of
                                                                             factors such as the gross tonnage of the ship, the cargo
                                                                             or number of passengers and the characteristics of its
1.    The appeal is dismissed.                                               voyages) and, in those situations, allow citizens of other
                                                                             Member States of the European Union to have access to
                                                                             the posts in question, may that access be made subject to
2.    The Staff Committee of the European Central Bank, Mr Priese-           the condition of reciprocity?
      mann, Mr Van de Velde and Ms Cerafogli shall pay the costs.
                                                                        (1) OJ English Special Edition 1968(II) P. 475.
(1) OJ C 61 of 24.2.2001.
                                                                        Action brought on 12 November 2001 by the Com-
                                                                        mission of the European Communities against the
                                                                                Kingdom of Belgium
Reference for a preliminary ruling by the Third Division                                         (Case C-435/01)
of the Sala De Lo Contencioso-administrativo by order of
that court of 4 October 2001 in the case of Colegio de
Oficiales de la Marina Mercante Española, the State                                              (2002/C 17/13)
Administration and Asociación de Navieros Españoles
                             (ANAVE)
                         (Case C-405/01)                                An action against the Kingdom of Belgium was brought
                                                                        before the Court of Justice of the European Communities on
                                                                        12 November 2001 by the Commission of the European
                          (2002/C 17/12)                                Communities, represented by H. van Lier, acting as Agent.
                                                                        The applicant claims that the Court should:
Reference has been made to the Court of Justice of the                  1.   declare that, by failing within the time-limits prescribed
European Communities by an order of the Third Division of                    to adopt all the laws, regulations and administrative
the Sala De Lo Contencioso-administrativo (Chamber for                       provisions necessary to comply fully and correctly with
Contentious-Administrative Proceedings), which was received                  Council Directive 96/61/EC of 24 September 1996 (1)
at the Court Registry on 15 October 2001, for a preliminary                  concerning integrated pollution prevention and control,
ruling in the case of Colegio de Oficiales de la Marina Mercante             or at any rate to notify the same to the Commission, the
Española, the State Administration and Asociación de Navieros              Kingdom of Belgium has failed to fulfil its obligations
Españoles (ANAVE), on the following questions:                              under that directive;


title: Case C-318/03: Reference for a preliminary ruling by the Oberverwaltungsgericht für das Land Nordrhein-Westfalen by order of that Court of 8 July 2003 in the administrative proceedings between Orthica BV against Bundesrepublik Deutschland, represented by the Federal Ministry of Consumer Protection, Nutrition and Agriculture; Intervener: the representative of the public interest at the Oberverwaltungsgericht für das Land Nordrhein-Westfalen

text:
C 275/28             EN                         Official Journal of the European Union                                        15.11.2003
              term ‘physiological functions’, the further ques-                    Articles 28 and 30 EC, not to apply the rule in
              tion arises as to the meaning of that term and                       Paragraph 47a of the LMBG to such medicinal
              its relation to the term ‘pharmacological effect’.                   products analogously? If not, can the German State,
                                                                                without thereby infringing Community law, evade
                                                                                an obligation which a German court intends to
    III. Does the view expressed by the Court of Justice in                        impose on it to adopt a decision of general appli-
         Case 227/82 van Bennekom [1983] ECR 3883,                                 cation under Paragraph 47a of the LMBG (applied
         paragraph 39 on the general classification of vitamin                     analogously) if it, or the authority responsible for
         preparations, in which it said that it must be possible                   food but not medicines, objects that because in
         to import a product that may be marketed as a food                        the German classification system the product is
         in the Member State in which it was manufactured                          medicinal no decision of general application under
         by the granting of a marketing authorisation if, even                     Paragraph 47a of the LMBG (analogously) may be
         though it is regarded as a medicine in the Member                         adopted,
         State of import, a marketing authorisation is com-
         patible with the requirements of health protection,
         also apply to the product at issue here, and does the                     a)    because the body competent to adopt decisions
         Court of Justice adhere to its view in the light of                             of general application under Paragraph 47a of
         subsequent Community law?                                                       the LMBG is not competent for medicines also,
                                                                                b)    because the product is not authorised as a
    IV. a)    In so far as the term ‘health risk’ is relevant to                         medicine?
              the questions in sections II or III, or to other
              applicable Community law, such as Articles 28                   VII. If the Court declines itself to reply to the questions
              and 30 EC: Is the relevant threshold the ‘upper
                                                                                posed in section A, may the national court then
              safe level’ or should it be reduced, say, because
                                                                                direct questions on the classification of products or
              the substances in question are also ingested
                                                                                indeed scientific or methodological questions to the
              with food and/or because — at least where                            European Food Authority and to what extent are
              they are taken long-term — regard may have
                                                                                any guidelines provided by that authority binding
              to be had to the various consumer groups and
                                                                                on the national court?
              their different sensitivities? How are the words
              ‘reference intakes for the population’ within the
              meaning of Article 5 of the Food Supplements
              Directive to be defined?
         b)   Is it an infringement of Community law for the
              specialist authorities to have a discretion under
              national law to determine (individual) upper              Reference for a preliminary ruling by the Oberverwal-
              safe levels and any (individual) reductions that          tungsgericht für das Land Nordrhein-Westfalen by order
              is subject to only limited review by the courts?          of that Court of 8 July 2003 in the administrative
                                                                        proceedings between Orthica BV against Bundesrepublik
    V.   a)   If a product may be marketed in at least one              Deutschland, represented by the Federal Ministry of
              other Member State as a foodstuff, is the fact            Consumer Protection, Nutrition and Agriculture; Inter-
              that there is no ‘nutritional need’ for that              vener: the representative of the public interest at the
              product in Germany significant in terms of the            Oberverwaltungsgericht für das Land Nordrhein-
              freedom to market the product in Germany?                                            Westfalen
         b)   If so, is it compatible with Community law                                        (Case C-318/03)
              for the authority to have a discretion under
              national law that is subject to only limited                                      (2003/C 275/44)
              review by the courts?
    VI. If in regard to the questions posed in section III the
         Court confirms the judgment in van Bennekom and                Reference has been made to the Court of Justice of the
         there is no incompatibility in this case with the              European Communities by order of the Oberverwaltungsge-
         requirements of health protection, how can the                 richt für das Land Nordrhein-Westfalen (Higher Administrative
         request for marketing authorisation be successfully            Court for the Land of Nordrhein-Westfalen) of 8 July 2003,
         pursued? Can a decision of general application under           received at the Court Registry on 24 July 2003, for a
         Paragraph 47a of the LMBG be refused, without                  preliminary ruling in the administrative proceedings between
         Community law being infringed, on the basis that               Orthica BV against Bundesrepublik Deutschland, represented
         in the German classification system a product is               by the Federal Ministry of Consumer Protection, Nutrition and
         medicinal, whereas it can be marketed as a foodstuff           Agriculture; Intervener: the representative of the public interest
         in the Member State where it was manufactured? Is              at the Oberverwaltungsgericht für das Land Nordrhein-
         it compatible with Community law, and in particular            Westfalen on the following questions:
 ---pagebreak--- 15.11.2003            EN                           Official Journal of the European Union                                         C 275/29
A.  1.    Is the contested product                                                   b)   Now that Directive 2001/83/EC of the Euro-
                                                                                pean Parliament and of the Council of 6 Nov-
          ‘E-400’ (natural vitamin E)                                                     ember 2001 on the Community code relating
                                                                                to medicinal products for human use has,
          a foodstuff (perhaps in the form of a food sup-                                 by the second sentence of Article 1(2) (on
          plement) or a medicinal product? Is this finding                                ‘functional’ medicinal products), introduced the
          binding on all the Member States?                                               term ‘physiological functions’, the further ques-
    2.    If the Court of Justice concludes that the product in                           tion arises as to the meaning of that term and
          question is medicinal, but that in those Member                                 its relation to the term ‘pharmacological effect’.
          States where it has hitherto been regarded as a
          foodstuff it should continue to be a foodstuff, that
          raises problems for the referring Chamber such as
          those underlying the questions in B VI, in conjunc-                   III. Does the view expressed by the Court of Justice in
          tion with those in B III. Reference is made to those                       Case 227/82 van Bennekom [1983] ECR 3883,
          questions and the observations thereon and an                              paragraph 39 on the general classification of vitamin
          answer is requested.                                                       preparations, in which it said that it must be possible
                                                                                to import a product that may be marketed as a food
B.  In the event that — as has been the case hitherto — the                          in the Member State in which it was manufactured
    questions posed in section A above are to be answered                            by the granting of a marketing authorisation if, even
    not by the Court of Justice but by the national courts, the                      though it is regarded as a medicine in the Member
    replies are, in this Chamber’s view, needed to the                               State of import, a marketing authorisation is com-
    following questions:                                                             patible with the requirements of health protection,
                                                                                also apply to the product at issue here, and does the
    I.    a)    Is the contested product to be classified accord-                    Court of Justice adhere to its view in the light of
                ing to the first and second paragraphs of                            subsequent Community law?
                Article 2, in conjunction with point (d) of the
                third paragraph of Article 2 of Regulation (EC)
                No 178/2002 of the European Parliament and
                of the Council of 28 January 2002 laying down                   IV. a)    In so far as the term ‘health risk’ is relevant to
                the general principles and requirements of food                           the questions in sections II or III, or to other
                law, establishing the European Food Safety                                applicable Community law, such as Articles 28
                Authority and laying down procedures in mat-                              and 30 EC: Is the relevant threshold the ‘upper
                ters of food safety (OJ 2002 L 31, p. 1, ‘the                             safe level’ or should it be reduced, say, because
                Basic Regulation’), or — once the period for                              the substances in question are also ingested
                transposition expires on 31 July 2003 —                                   with food and/or because — at least where
                according to Directive 2002/46/EC of the                                  they are taken long-term — regard may have
                European Parliament and of the Council of                                 to be had to the various consumer groups and
                10 June 2002 on the approximation of the                                  their different sensitivities? How are the words
                laws of the Member States relating to food                                ‘reference intakes for the population’ within the
                supplements (OJ 2002 L 183, p. 51, ‘the Food                              meaning of Article 5 of the Food Supplements
                Supplements Directive’), and if so according to                           Directive to be defined?
                which parts of the directive?
          b)    If the first and second paragraphs of Article 2,
                in conjunction with point (d) of the third
                paragraph of Article 2 of the Basic Regulation                       b)   Is it an infringement of Community law for the
                                                                                specialist authorities to have a discretion under
                applies, the following question arises: is it the
                                                                                national law to determine (individual) upper
                case that it is no longer the product’s main
                (objective) purpose that is the decisive factor,                          safe levels and any (individual) reductions that
                but rather that a product which meets the                                 is subject to only limited review by the courts?
                criteria for both a food and a medicine is,
                legally speaking, always — and only — a
                medicinal product? How material for these
                purposes is the type of product and how                         V.   a)   If a product may be marketed in at least one
                material the individual product?                                          other Member State as a foodstuff, is the fact
                                                                                that there is no ‘nutritional need’ for that
    II.   a)    How is the term ‘pharmacological effect’, which                           product in Germany significant in terms of the
                is critical for the purposes of classification,                           freedom to market the product in Germany?
                inter alia, under the first and second paragraphs
                of Article 2, in conjunction with point (d) of
                the third paragraph of Article 2 of the Basic
                Regulation, to be defined for the purposes                           b)   If so, is it compatible with Community law
                of Community law? In particular, does the                                 for the authority to have a discretion under
                definition include a requirement that there be a                          national law that is subject to only limited
                health risk?                                                              review by the courts?
 ---pagebreak--- C 275/30              EN                         Official Journal of the European Union                                        15.11.2003
      VI. If in regard to the questions posed in section III the         The applicant claims that the Court should
           Court confirms the judgment in van Bennekom and
           there is no incompatibility in this case with the
           requirements of health protection, how can the                1.    declare that by failing to adopt within the period laid
           request for marketing authorisation be successfully                 down all the laws and administrative provisions required
           pursued? Can a decision of general application under                to transpose Council Directive 91/439/EEC of 29 July
           Paragraph 47a of the LMBG be refused, without                       1991 on driving licences (1) the Federal Republic of
           Community law being infringed, on the basis that                    Germany has failed to fulfil its obligations under the EC
           in the German classification system a product is                    Treaty and that Directive;
           medicinal, whereas it can be marketed as a foodstuff
           in the Member State where it was manufactured? Is
           it compatible with Community law, and in particular           2.    Order the defendant to pay the costs.
           Articles 28 and 30 EC, not to apply the rule in
           Paragraph 47a of the LMBG to such medicinal
           products analogously? If not, can the German State,
           without thereby infringing Community law, evade
           an obligation which a German court intends to
           impose on it to adopt a decision of general appli-            Pleas in law and main arguments
           cation under Paragraph 47a of the LMBG (applied
           analogously) if it, or the authority responsible for          The Commission takes the view that German law is inconsist-
           food but not medicines, objects that because in               ent with Directive 91/439/EEC on the following points:
           the German classification system the product is
           medicinal no decision of general application under
           Paragraph 47a of the LMBG (analogously) may be                —     Minimum age for direct access to heavy motor-cycles in
           adopted,                                                            category A
           a)    because the body competent to adopt decisions                 Paragraph 6.2, second sentence, of the regulation on
                 of general application under Paragraph 47a of                 granting persons permission to drive on the road (1998
                 the LMBG is not competent for medicines also,                 regulation on permission to drive, hereinafter ‘the FeV’)
                                                                               provides for a minimum age of 25 for direct access to
           b)    because the product is not authorised as a                    heavy motor-cycles in category A. Article 6(1)(b), first
                 medicine?                                                     indent, last paragraph, of the Directive, however, provides
                                                                               for a minimum age of 21 years for direct access.
      VII. If the Court declines itself to reply to the questions
           posed in section A, may the national court then
           direct questions on the classification of products or         —     Permission to drive motor vehicles in category DE with
           indeed scientific or methodological questions to the                permission to drive vehicles in categories C1E and D
           European Food Authority and to what extent are
           any guidelines provided by that authority binding                   Under paragraph 6.3.6 of the FeV, it is permissible to
           on the national court?                                              drive vehicles in category DE with a driving permit for
                                                                               categories C1E and D, whereas Article 5(2)(b) of the
                                                                               Directive expressly permits only the driving of motor
                                                                               vehicles in category D with a driving permit covering
                                                                               categories CE and D
                                                                         —     Permission to drive motor vehicles in category D for
Action brought on 2 September 2003 by the Commission
                                                                               holders of driving permits in categories C1, C1E, C or CE
of the European Communities against the Federal Repub-
                         lic of Germany                                        in certain cases
                                                                               Paragraph 6.4 of the FeV entitles holders of driving
                        (Case C-372/03)                                        permits in categories C1, C1E, C and CE in their Member
                                                                               State of origin to drive motor vehicles in category D
                        (2003/C 275/45)                                        (motorised omnibuses) without passengers if the journey
                                                                               is made merely for the purposes of examining the
                                                                               technical state of the vehicle or of transfering the vehicle
                                                                               to another location. However the Directive does not draw
An action against the Federal Republic of Germany was                          any distinction between the carriage of passengers and
brought before the Court of Justice of the European Communi-                   driving an empty bus. The Directive does not make
ties on 2 September 2003 by the Commission of the European                     provision for the driving of motor vehicles in category D
Communities, represented by Gerald Braun and Wouter Wils,                      without the corresponding driving licence, although such
members of the Legal Service of the Commission of the                          vehicles may be so driven for the purposes of examining
European Communities, with an address for service in Luxem-                    the technical state of the vehicle after repairs have been
bourg.                                                                         carried out on grounds of practical convenience. A more


title: Case T-329/11: Action brought on 20 June 2011 — TM.E v Commission

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/37

         Action brought on 20 June 2011 — TM.E v Commission
   (Case T-329/11)
   2011/C 252/84
   Language of the case: Italian

      Parties

      Applicant: TM.E SpA — Termomeccanica Ecologia (Milan, Italy) (represented by: C. Malinconico, S. Fidanzia and A. Gigliola, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures financed from the General Budget of the European Communities in the context of external actions’;

               —

               order the European Commission to pay damages in the amount of EUR 18 955 106, or such greater or lesser amount as may be considered appropriate by the Court, by way of compensation to TM.E for the damage sustained by TM.E SpA as a result of the breach of Community law on the part of the European Commission itself;

               —

               in the alternative, order the European Commission to pay compensation for the loss of opportunity suffered by TM.E, equivalent to EUR 3 791 021, or to pay such greater or lesser amount as may be considered appropriate by the Court;

               —

               in the further alternative, order the European Commission to pay compensation for the delay attributable to the European Commission in the performance of its duties, quantifiable as the overall amount represented by the legal fees incurred by TM.E, equal to EUR 73 044,32, or such greater or lesser amount as may be considered appropriate by the Court;

               —

               order the European Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The present action seeks annulment of the letter of the European Commission of 20 April 2011 ruling out the need to initiate infringement proceedings against Romania for breach of the Community principles and directives on the award of public procurement contracts and of the ‘Practical Guide to contract procedures for EU external actions’ (‘the PRAG’) drawn up by the Commission itself, and compensation for the damage brought about by the Commission in the performance of its duties.
   In support of the action, TM.E relies on three pleas in law.

               1.

               First plea in law, alleging breach of the essential procedural requirements laid down in the PRAG, and breach of the Treaties or of any rule of law relating to their application
               TM.E submits that, by the contested decision, the European Commission failed to give a reasoned opinion on the manifest and serious illegalities complained of in relation to the procedure for award of a contract for the project termed ‘Bucharest Wastewater Treatment Plant Rehabilitation: Stage I ISPA 2004/RO/16/P/PE/003-03’ and, in consequence, failed to initiate infringement proceedings against Romania or, what is more, to revoke the Community funding paid to Romania for execution of the project.

               2.

               Second plea in law, alleging breach of essential procedural requirements and of the PRAG, and distortion of the facts
               TM.E submits also that the contested decision is flawed because the Commission, distorting the facts covered by the complaint, did not point out the manifest procedural defects for which the Primaria Municipiului Bucaresti was responsible. Specifically, the latter authority first excluded TM.E’s tender because of an alleged anomaly in the financial offer and then, realising that this was seriously unlawful, tried to justify the decision already taken by alleging defects in the technical offer. Furthermore, the Commission did not take account of the fact that, in flagrant breach of the rights of the defence and of Community principles, the application for annulment of the contract was not examined in the proceedings before the Romanian judicial authority on the pretext that stamp duty in the amount of EUR 7,3 million had not been paid.

               3.

               Third plea in law, alleging failure by the Commission to make a finding in relation to the further breach complained of
               TM.E submits also that, in the contested letter, the Commission failed to consider the other aspects brought to its attention. In particular, no appraisal whatsoever was made of the fact that TM.E’s case was adjudicated at first instance by the same judicial authority as had declared the application inadmissible, by a judgment subsequently reversed on appeal, and accordingly by a judicial authority which was not impartial and which should have declined to adjudicate, this being in clear and undeniable breach of the rights of the defence, of the Community principles and of Article 6(1) of the European Convention on Human Rights. Lastly, as regards the claim for compensation, TM.E submits that the inaction attributable to the Commission, as well as its failure to revoke the Community funding paid to Romania in connection with the project in question, caused considerable financial damage because of the failure to execute the procurement contract, or because of TM.E’s loss of any chance of being awarded that contract and, in any event, damage in the form of delay which compelled TM.E to engage in costly legal proceedings before the Romanian judicial authorities.


title: Action brought on 19 December 1997 by Swedish Match Advertising Products NV/SA against the Council of the European Union (Case T-599/97)

text:
20.2.98               EN                 Official Journal of the European Communities                                    C 55/31
Action brought on 19 December 1997 by Swedish Match                 of Article 7(4)(a) of the basic anti-dumping Regulation
Advertising Products NV/SA against the Council of the               since respect for the right to a fair hearing is required of
                       European Union                               the Community authorities and not only of the parties.
                       (Case T-599/97)                              That refusal also constitutes an infringement of the
                                                                    requirement of transparency, which is laid down by
                         (98/C 55/61)                               implication in Articles 7(4)(a) and 8(2)(b). The
                                                                    Commission also infringed the applicant's right to a fair
                (Language of the case: English)                     hearing, as laid down in Article 7(4)(b) of the basic anti-
                                                                    dumping Regulation, by its omission of vital information
An action against the Council of the European Union was             relevant to the final amount of the anti-dumping duty
brought before the Court of First Instance of the European          imposed on a Japanese competitor.
Communities on 19 December 1997 by Swedish Match
Advertising Products NV/SA, represented by Francisco                The applicant also pleads infringement of Article 2 of the
Miguel Rodero López and Dorio Mutti, with an address                basic anti-dumping Regulation since the dumping
for service in Luxembourg at the Chambers of Lucy                   determination made by the Community institutions is
Dupong, 14a, rue des Bains.                                         vitiated by manifest error in the assessment of facts.
The applicant claims that the Court should:
                                                                    Finally, the applicant pleads infringement of Article 190 of
                                                                    the EC Treaty. The Council has limited itself to rejecting
Ð declare that Article 1 of Council Regulation (EC)                 the applicant's arguments merely on the ground that the
     No 2025/97 is partially void within the meaning of             investigation has disclosed something other than that
     the second paragraph of Article 174 of the EC Treaty,          alleged by the applicant. All that the applicant learns from
     since the aim of this action is not to have the current        the statement of the reasons for the contested Regulation
     anti-dumping duties declared void but to have them             is that its claims concerning the dumping determination
     replaced by more stringent measures fixing higher              have been rejected; it cannot ascertain the reasons which,
     anti-dumping duties on imports of advertising matches          in consequence of the rejection of the applicant's
     originating in Japan,                                          arguments, led the Council to impose upon a Japanese
                                                                    competitor a wholly ineffective anti-dumping duty based
Ð maintain the effects of the current anti-dumping                  on its incorrectly calculated dumping margin.
     duties, in accordance with the second paragraph of
     Article 174 of the EC Treaty, until the competent              (1) OJ L 284, 16.10.1997, p. 57.
     institutions adopt the new measures sought by this             (2) OJ L 209, 2.8.1988, p. 1.
     action, and
Ð order the defendant to pay the costs.
Pleas in law and main arguments adduced in support:
                                                                    Action brought on 23 December 1997 by Onno Plug
On 15 October 1997 the Council adopted Regulation                      against the Commission of the European Communities
(EC) No 2025/97 (1) imposing definitive anti-dumping
                                                                                (Case T-608/97)
duties on imports into the Community of advertising
matches originating in Japan and ordered to collect                                          (98/C 55/62)
definitively the provisional duty imposed. The rate of duty
applicable to the net, free-at-Community-frontier price,
before duty, is to be 43,2 %, with the exception of imports                         (Language of the case: French)
manufactured and exported by some specified companies.
The rates of duty for these companies ranges from 9,9 to            An action against the Commission of the European
27,8 %.                                                             Communities was brought before the Court of First
                                                                    Instance of the European Communities on 23 December
The applicant submits that the current anti-dumping                 1997 by Onno Plug, residing at Thôneux (Switzerland),
duties are not high enough in order to prevent the                  represented by Georges Vandersanden and Laure Levi, of
material injury that the Community industry, and in                 the Brussels Bar, with an address for service in
particular the applicant itself, is still suffering. The            Luxembourg at Fiduciaire Myson saÁrl, 30 rue de
applicant is therefore asking that the current anti-dumping         Cessange.
duties be replaced by more stringent (i.e. higher) duties by
the competent institutions.
                                                                    The applicant claims that the Court should:
The applicant pleads infringement of Articles 7(4)(a) and
8(2)(b) of Council Regulation (EEC) No 2423/88 (2)                  Ð annul the decision contained in the letter from the
(hereinafter the basic anti-dumping Regulation') on the                 appointing authority of 14 January 1997 and, in so far
ground that the Commission refused to provide the                        as necessary, the express decision rejecting the
FeÂdeÂration EuropeÂenne des Fabricants d'Allumettes (FEFA)              applicant's complaint, adopted on 12 September 1997
with information. That refusal constitutes an infringement               and notified on 22 September 1997,


title: Case T-274/07: Action brought on 19 July 2007 — Zhejiang Harmonic Hardware Products v Council

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/15

         Action brought on 19 July 2007 — Zhejiang Harmonic Hardware Products v Council
   (Case T-274/07)
   (2007/C 223/24)
   Language of the case: English
   Parties

      Applicant: Zhejiang Harmonic Hardware Products Co. Ltd (Zhejiang, China) (represented by: R. MacLean, Solicitor)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul Articles 1 and 2 of Council Regulation (EC) 452/2007 of 23 April 2007, insofar as it applies to the applicant; and

               —

               order the Council to pay the legal costs and expenses of the procedure.

         Pleas in law and main arguments
   The applicant, who manufactures ironing boards and the essential parts thereof in the People's Republic of China, seeks the annulment of Council Regulation (EC) No 452/2007 of 23 April 2007 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ironing boards originating in the People's Republic of China and Ukraine (1) to the extent that these measures apply to the applicant.
   In support of its application, the applicant, first of all, submits that the Community institutions infringed Article 2(7)(b) and (c) of the Basic Regulation (2) as the Commission presented a proposal for anti-dumping measures to the Council based on a flawed determination that the applicant did not satisfy the Market Economy Status criteria set out in Article 2(7)(c).
   Secondly, the applicant alleges that the Community institutions infringed Article 20(4) and (5) of the Basic Regulation and its right to be heard as the applicant was only given six days to respond to the Commissions revised final disclosure letter.
   Thirdly, the applicant contends that the Community institutions infringed Article 8 of the Basic Regulation by failing to give proper consideration to the price undertakings offered by the applicant.
   Finally, the applicant claims that the Community institutions infringed Article 5(2)(a) of the Basic Regulation by not disclosing the identity of the complainant initiating the investigation leading to the contested regulation.

      (1)  OJ 2007 L 109, p. 12.

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Case C-193/13 P: Appeal brought on 15 April 2013 by nfon AG against the judgment of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-283/11 Fon Wireless Ltd. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/5

         Appeal brought on 15 April 2013 by nfon AG against the judgment of the General Court (Fourth Chamber) delivered on 29 January 2013 in Case T-283/11 Fon Wireless Ltd. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-193/13 P)
   2013/C 189/09
   Language of the case: German

      Parties

      Appellant: nfon AG (represented by: V. von Bomhard, Rechtsanwältin)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Fon Wireless Ltd.

      Form of order sought

               —

               Set aside the judgment under appeal;

               —

               In the alternative, set aside the judgment in so far as it upholds a likelihood of confusion on the basis of the earlier Community trade mark No 4719738 ‘fon’ (figure);

               —

               Order the applicant in the proceedings at first instance to pay the costs.

      Pleas in law and main arguments

   The present appeal is directed against the judgment of the General Court of 29 January 2013 in Case T-283/11, by which the General Court altered the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 March 2011 (Case R 1017/2009-4) relating to opposition proceedings between Fon Wireless Ltd. and nfon AG to the effect that nfon AG’s appeal to the Board of Appeal was dismissed.
   The only ground of appeal relied upon by the appellant is an infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1) There must, in the examination of the likelihood of confusion under Article 8(1)(b) of Regulation No 207/2009, be a detailed assessment of all the relevant facts of the individual case. The appeal claims that there has been a failure to comply with that requirement in three respects: first, the error of law made in the identification of the distinctive elements of the opposing marks in the comparison of the signs, second, the error made in automatically assuming the existence of a likelihood of confusion and, third, the lack of a comprehensive assessment of the likelihood of confusion on account of the failure to take into account sufficiently the limited distinctiveness of the element ‘fon’.

      (1)  OJ 2009 L 78, p. 1.