title: Case C-493/01: Reference for a preliminary ruling by the Verwaltungsgericht Stuttgart by order of that court of 4 December 2001 in the case of Raffaele Oliveri against Land Baden-Württemberg

text:
C 56/6                   EN                    Official Journal of the European Communities                                         2.3.2002
The Commission claims that the Court should:                              1.    Is Directive 2001/37/EC (1) invalid, in whole or in part,
                                                                                by reason of:
1.    declare that by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with                    a.      the inadequacy of Articles 95 and/or 133 EC as a
      Council Directive 98/76/EC (1) of 1 October 1998                                  legal basis;
      amending Directive 96/26/EC (2) on admission to the
      occupation of road haulage operator and road passenger
      transport operator and mutual recognition of diplomas,                    b.      the use of Articles 95 and 133 EC as a dual legal
      certificates and other evidence of formal qualifications                          basis;
      intended to facilitate for these operators the right to
      freedom of establishment in national and international                    c.      infringement of the principle of proportionality;
      transport operations the Kingdom of Sweden has failed
      to fulfil its obligations under that directive.
                                                                                d.      infringement of Article 295 EC, the fundamental
2.    order the Kingdom of Sweden to pay the costs of the                               right to property and/or Article 20 of TRIPs;
      proceedings.
                                                                                e.      infringement of Article 253 EC and/or the duty to
                                                                                give reasons;
Pleas in law and main arguments                                                 f.      infringement of the principle of subsidiarity;
Under the binding provisions of Articles 10 and 249 EC                          g.      misuse of powers?
the Member States must take all appropriate measures to
implement directives in national law within the prescribed                2.    If it is valid, does Article 7 of Directive 2001/37/EC of the
period. The period prescribed in Article 2(1) of Directive                      Parliament and Council apply only to tobacco products
98/76/EC ended on 1 October 1999 without the Kingdom                            marketed within the European Community, or does it
of Sweden having adopted the necessary laws and other                           apply also to tobacco products packaged within the
provisions.                                                                     European Community for export to third countries?
(1) OJ L 277, 14.10.1998, p. 17.
(2) OJ L 124, 23.5.1996, p. 1.                                            (1) Directive 2001/37/EC of the European Parliament and of the
                                                                              Council of 5 June 2001 on the approximation of the laws,
                                                                              regulations and administrative provisions of the Member States
                                                                              concerning the manufacture, presentation and sale of tobacco
                                                                              products — Commission statement (OJ L 194, 18/07/2001,
                                                                              p. 26).
Reference for a preliminary ruling by the High Court
of Justice (England & Wales), Queen’s Bench Division
(Administrative Court), by order of that court dated
6 December 2001, in the case of The Queen on the
application of 1) British American Tobacco (Investments)
Ltd, 2) Imperial Tobacco Ltd against Secretary of State for
                                Health                                    Reference for a preliminary ruling by the Verwaltungsge-
                                                                          richt Stuttgart by order of that court of 4 December 2001
                                                                          in the case of Raffaele Oliveri against Land Baden-
                           (Case C-491/01)                                                             Württemberg
                            (2002/C 56/12)                                                           (Case C-493/01)
                                                                                (2002/C 56/13)
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court of
Justice (England & Wales), Queen’s Bench Division (Adminis-
trative Court) dated 6 December 2001, which was received at               Reference has been made to the Court of Justice of the
the Court Registry on 19 December 2001, for a preliminary                 European Communities by order of the Verwaltungsgericht
ruling in the case of The Queen on the application of 1) British          Stuttgart (Stuttgart Administrative Court) of 4 December 2001,
American Tobacco (Investments) Ltd, 2) Imperial Tobacco                   received at the Court Registry on 19 December 2001, for a
Ltd against Secretary of State for Health, on the following               preliminary ruling in the case of Raffaele Oliveri against Land
questions:                                                                Baden-Württemberg on the following questions:
 ---pagebreak--- 2.3.2002                EN                    Official Journal of the European Communities                                          C 56/7
1.    Do Article 39 EC and Article 3 of Council Directive                Pleas in law and main arguments
      64/221/EEC (1) of 25 February 1964 preclude national
      legislation which makes it mandatory for authorities to
      expel nationals of other Member States who have been
      finally sentenced to a term of youth custody of at least           a)    The Commission considers that, as a result of a failure to
      two years, or to a term of imprisonment, for an inten-                   ensure that all establishments and undertakings carrying
      tional criminal offence under the Betäubungsmittelgesetz                 out the operations specified in Annex II A (disposal
      (Law on Narcotics) where the sentence has not been                       operations) and Annex II B (operations which may lead
      suspended?                                                               to recovery) of the Directive hold a permit, Ireland is
                                                                               breaching its obligations under Articles 9 and 10 of the
2.    Is Article 3 of Council Directive 64/221/EEC of 25 Febru-                Directive;
      ary 1964 to be interpreted as meaning that the making
      of a statement of facts and a positive development in the
      person concerned which occurred after the final decision
      of the authority must also be taken into account by the            b)    The transposition and application of Article 12 of
      national courts when they review the lawfulness of the                   Directive 75/442/EEC remains unsatisfactory for the
      expulsion of an EU national?                                             following reasons:
(1) OJ L 56, p. 850.
                                                                               First, under the terms of the Directive, the requirement of
                                                                               authorisation or registration should have been the subject
                                                                               of national measures from the expiry of the date of
                                                                               implementation of Directive 91/156/CEE. The Waste
                                                                               Management (Collection Permit) Regulations 2001 do
                                                                               not ensure that all waste collection will in fact be carried
                                                                               out under permit. Second, the Commission has not had
                                                                               confirmation that all waste collection in Ireland is now
Action brought on 20 December 2001 by the Commission                           carried out under permit.
        of the European Communities against Ireland
                         (Case C-494/01)
                                                                         c)    The Commission considers that a seriously incomplete
                                                                               application of the permit requirements of Article 9
                           (2002/C 56/14)                                      represents evidence that Ireland has not taken the appro-
                                                                               priate measures to establish an integrated and adequate
                                                                               network of disposal installations as required under
                                                                               Article 5 of the Directive.
An action against Ireland was brought before the Court of
Justice of the European Communities on 20 December 2001
by the Commission of the European Communities, represented
by Mr Richard Wainwright, acting as agent, with an address               d)    By allowing significant amount of waste disposal and
for service in Luxembourg.                                                     recovery in Ireland to take place for a protracted period
                                                                               outside the permit framework of Article 9 of the Directive,
                                                                               Ireland cannot be considered to have taken all the
The Applicant requests that the Court should                                   necessary measures for the purposes of Article 4, (regu-
                                                                               lation of waste disposal and recovery operations so as to
                                                                               avoid endangering human health and without using
—     declare that, by failing to take all the measures necessary
                                                                               processes or methods which could harm the environ-
      to ensure a correct implementation of the provisions of
                                                                               ment), because without permits disposal and recovery
      Articles 4, 5, 8, 9, 10, 12, 13 and 14 of Council Directive
                                                                               methods are not properly conditioned and controlled.
      75/442/EEC of 15 July 1975 on waste (1) as amended by
      Council Directive 91/156/EEC (2), Ireland has failed to
      comply with its obligations under those Articles of the
      said Directive;
                                                                         e)    The Commission considers that Ireland has failed to
                                                                               respect Article 8 of the Directive, in as much as it has
—     declare that, by failing to completely and satisfactorily                failed to ensure that those who hold waste as a result of
      respond to a request for information dated 20 September                  non-permitted waste operations have the waste at the
      1999 in relation to a waste operation at Fermoy, County                  sites concerned handled by a private or public waste
      Cork, Ireland has failed to fulfil the obligations which it              collector or by an undertaking which carries out the
      has pursuant to Article 10 of the EC Treaty;                             operations listed in Annex II A or B, or, alternatively, it
                                                                               has failed to ensure that the holders recover or dispose of
—     order Ireland to pay the costs.                                          the waste themselves in accordance with the Directive.


title: Reference for a preliminary ruling by the Seventh Chamber of the Tribunal Correctionel, Arlon, by judgment of that court of 2 April 1998 in the case of Ministère Public against André Mazzoleni - parties claiming damages: Eric Guillaume, Michel Pedon, Christian Fondeur, Christian Simonin, Jérôme Canini; liable under civil law: Inter Surveillance Assistance SARL (Case C-165/98)

text:
4.7.98                EN                 Official Journal of the European Communities                                        C 209/23
     subsequently amended, and in particular Articles 3(1),         presumption in respect of the war years if the person
     5(3) and 6(2) thereof, valid, in the light of Article 40       concerned can claim a pension under a foreign scheme for
     and Articles 30 to 36 of the EC Treaty?                        those periods of employment) constitute a clause for
                                                                    reduction, suspension or withdrawal declared inapplicable
(1) OJ L 170, 28.6.1997, p. 3.                                      by the new provisions of Regulation (EEC) No 1248/92?
(2) OJ L 177, 1.7.1981, p. 4.
                                                                    (1) Council Regulation (EEC) No 1248/92 of 30 April 1992
                                                                        amending Regulation (EEC) No 1408/71 on the application of
                                                                        social security schemes¼ (OJ L 136, 19.5.1992, p. 7).
Reference for a preliminary ruling by the Third Chamber
of the Tribunal de Travail, Mons, by judgment of that
court of 21 April 1998, in the case of Georges Platbrood            Reference for a preliminary ruling from the
           v. Office National des Pensions (ONP)                    Oberlandesgericht Köln, by order of that court of
                       (Case C-161/98)                              13 March 1998 in proceedings concerning an
                                                                       administrative fine imposed on Hans-Jürgen Hartmann
                         (98/C 209/45)
                                                                                (Case C-162/98)
                                                                                (98/C 209/46)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Third
                                                                    Reference has been made to the Court of Justice of the
Chamber of the Tribunal de Travail (Labour Tribunal),
                                                                    European Communities by order of the Oberlandesgericht
Mons, of 21 April 1998, which was received at the Court
                                                                    Köln (Higher Regional Court, Cologne) of 13 March
Registry on 27 April 1998, for a preliminary ruling in the
                                                                    1998, received at the Court Registry on 27 April 1998, for
case of Georges Platbrood v. Office National des Pensions
                                                                    a preliminary ruling in the proceedings concerning an
(ONP), on the following questions:
                                                                    administrative fine imposed on Hans-Jürgen Hartmann,
                                                                    on the following question (1):
Do the new provisions in Regulation (EEC) No 1248/92
requiere Belgium to grant a beneficiary the right to a              Does the exemption from charges afforded to motor
retirement pension calculated on the basis of a work                vehicles belonging to road maintenance and operation
record comprising in part years in the course of which              services' apply only to vehicles belonging to regional and/
presumed or notional contributions must be taken into               or local authorities, or does it also apply to vehicles
account Ð unless the person concerned can claim a                   belonging to private contractors acting on behalf of such
pension under a foreign scheme for those periods of                 authorities?
employment (principle that there is a legal presumption in
respect of the war years, as laid down by Article 32(1) of          In the latter case:
the Royal Decree of 21 December 1967 establishing
general rules for the retirement and survival pension               does the exemption from charges apply only in respect of
scheme for employees prior to its repeal by the Royal               journeys undertaken for that purpose, or does it apply
Decree of 14 December 1990 Ð although it remains                    generally to all journeys made using such vehicles, thus
applicable to retirement pensions which became payable              including those undertaken on business relating to the
for the first time before 1 January 1991) in circumstances          contractor's manufacturing operations?
where, specifically, the person concerned has been
awarded a retirement pension payable by Germany on the              (1) Concerning the interpretation of Article 4(1) of the Agreement
basis of actual contributions corresponding to the                      of 9 February 1994 on the levying of charges for the use of
presumed or notional contributions which may be taken                   certain roads by heavy commercial vehicles (Bundesgesetzblatt
                                                                        [Federal Gazette], Part II, p. 1768).
into account under the Belgian legislation?
In other words, must the new provisions of Regulation
(EEC) No 1248/92 (1) be interpreted as authorising
overlapping, without reduction, suspension or withdrawal
of a retirement pension awarded to a Belgian, payable by            Reference for a preliminary ruling by the Seventh
Belgium and calculated on the basis of presumed or                  Chamber of the Tribunal Correctionel, Arlon, by
notional contributions by virtue of the principle that there        judgment of that court of 2 April 1998 in the case of
is a legal presumption in respect of the war years, as laid         MinisteÁre Public against AndreÂ Mazzoleni Ð parties
down by Article 32(1) of the Royal Decree of 21 December            claiming damages: Eric Guillaume, Michel Pedon,
1967 (subject to the reservation contained in that                  Christian Fondeur, Christian Simonin, JeÂrôme Canini;
provision whereby the person concerned may not,                      liable under civil law: Inter Surveillance Assistance SARL
however, claim a pension under a foreign scheme for those                                    (Case C-165/98)
periods of employment) with the benefit of a retirement
pension payable by Germany calculated on the basis of                                         (98/C 209/47)
actual contributions covering the same period or, on the
contrary, might the exception provided for by Article 32(1)         Reference has been made to the Court of Justice of the
of the Royal Decree of 21 December 1967 (no legal                   European Communities by judgment of the Seventh
 ---pagebreak--- C 209/24              EN                 Official Journal of the European Communities                                     4.7.98
Chamber of the Tribunal Correctionel (Criminal Court),              Are Council Directives 92/83 (1) and 92/84 (2) on the
Arlon, of 2 April 1998, received at the Court Registry on           harmonisation of excise duties invalid from the point of
29 April 1998, for a preliminary ruling in the case of              view of the EC Treaty and in particular the second
MinisteÁre Public (Public Prosecutor's Office) against AndreÂ       paragraph of Article 95 of the Treaty, in that they
Mazzoleni Ð parties claiming damages: Eric Guillaume,
Michel Pedon, Christian Fondeur, Christian Simonin,                 Ð fix a minimum rate of tax on beer of ECU 1.87 per
JeÂrôme Canini; liable under civil law: Inter Surveillance              degree per hectolitre
Assistance SARL Ð on the following questions:
                                                                    Ð whereas they authorise taxation of wine by reference
Ð In Directive 96/71/EC of the European Parliament and                  solely to the volume, with a minimum rate of zero,
     of the Council of 16 December 1996 concerning the
     posting of workers in the framework of the provision           thus requiring Member States to raise the tax on beer to
     of services (1), does the term period of posting'             the said minimum rate and so bringing about the creation
     encompass the part-time period spent, whether                  of tax differentials liable to discriminate between wine and
     randomly or not, by a frontier-zone worker who                 beer?
     comes from an undertaking in a Member State,
     performing, in the course of days, weeks or a month, a         (1) OJ L 316, 31.10.1992, p. 21.
     part of his services in the adjacent territory or              (2) OJ L 316, 31.10.1992, p. 29.
     territories of one or more other Member States?
Ð Are Articles 59 and 60 of the EC Treaty to be
     interpreted as being infringed where a Member State,
     for overriding reasons relating to the public interest,
     requires any undertaking from another Member State             Reference for a preliminary ruling from the Oberste
     employing persons, even temporarily, on the territory          Gerichtshof, Vienna, by order of that court of 15 April
     of the first State to comply with its legislation or           1998 in the case of Westdeutsche Landesbank
     collective labour agreements relating to minimum               Girozentrale against Johannes Leon, acting as
     wages, where that interest is already protected by the         administrator of the assets of Grundstücks- und Baupro-
     rules of the State in which the service provider is            jektentwicklungsgesellschaft mbH in the insolvency
     established and workers there are already in a                             proceedings concerning that company
     comparable or similar position on the basis not solely
                                                                                (Case C-167/98)
     of the legislation relating to minimum wages but of
     the overall position (impact of taxation, welfare                                       (98/C 209/49)
     protection in relation to illness, including under the
     obligatory supplementary insurance which applies in            Reference has been made to the Court of Justice of the
     France, and to industrial accidents, widowhood,                European Communities by order of the Oberste
     unemployment, retirement and death)?                           Gerichtshof (Supreme Court), Vienna, of 15 April 1998,
                                                                    received at the Court Registry on 30 April 1998, for a
Ð In the same context, put differently: are the temporary
                                                                    preliminary ruling in the case of Westdeutsche Landesbank
     national obligations set for employees to be
                                                                    Girozentrale against Johannes Leon, acting as
     understood as solely the minimum hourly rate of pay
                                                                    administrator of the assets of Grundstücks- und Baupro-
     without assessing the overall position as regards the
                                                                    jektentwicklungsgesellschaft mbH in the insolvency
     welfare protection enjoyed by employees who are
                                                                    proceedings concerning that company, on the following
     required in their work to move from one State to
                                                                    question:
     another?
                                                                    Does the refusal to allow a mortgage to be created to
(1) OJ L 18, 24.1.1997, p. 1.
                                                                    cover an existing foreign-currency debt (in this case in
                                                                    German marks (DM)) constitute a restriction on the
                                                                    movement of capital and payments compatible with
                                                                    Article 73(b) of the EC Treaty?
Reference for a preliminary ruling from the Tribunal de
Grande Instance, Foix, by judgment of that court of
21 April 1998 in the case of SocieÂteÂ Critouridienne de
       Distribution v. Receveur Principal des Douanes
                                                                    Action brought on 4 May 1998 by the Grand Duchy of
                        (Case C-166/98)
                                                                    Luxembourg against the European Parliament and the
                         (98/C 209/48)                                             Council of the European Union
                                                                                (Case C-168/98)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Tribunal de                                        (98/C 209/50)
Grande Instance (Regional Court), Foix (France), of
21 April 1998, which was received at the Court Registry             An action against the European Parliament and the
on 29 April 1998, for a preliminary ruling in the case of           Council of the European Union was brought before the
SocieÂteÂ Critouridienne de Distribution v. Receveur                Court of Justice of the European Communities on 4 May
Principal des Douanes on the following question:                    1998 by the Grand Duchy of Luxembourg, represented by


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 April 1997 in Case T-554/93: Alfred Thomas Edward Saint and Christopher Murray v. Council of the European Union and Commission of the European Communities (Action for annulment - Action for damages - Non-contractual liability - Milk - Additional levy - Reference quantity - Producers having entered into non-marketing or conversion undertakings - Compensation - Regulation (EEC) No 2187/93 - Legal effects - Admissibility - Limitation period)

text:
No C 181 / 12          EN                  Official Journal of the European Communities                                   14 . 6 . 97
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                 the application of Council Regulation (EEC) No 857/
                        of 16 April 1997                                  84 of 31 March 1984 adopting general rules for the
                                                                          application of the levy referred to in Article 5 (c) of
in Case T-554/93 : Alfred Thomas Edward Saint and                         Regulation (EEC) No 804/68 in the milk and milk
Christopher Murray v. Council of the European Union                       products sector, as supplemented by Commission
     and Commission of the European Communities (')                       Regulation (EEC) No 1371 /84 of 16 May 1984 laying
                                                                          down detailed rules for the application of the
(Action for annulment — Action for damages — Non
contractual liability — Milk — Additional levy —                          additional levy referred to in Article 5 (c) of
                                                                          Regulation (EEC) No 804/68, in so far as those
Reference quantity — Producers having entered into non
marketing or" conversion undertakings — Compensation                      Regulations did not make provision for the allocation
— Regulation (EEC) No 2187/93 — Legal effects —                           of a reference quantity to producers who, pursuant to
             Admissibility — Limitation period)                           an undertaking given under Council Regulation (EEC)
                                                                          No 1078/77 of 17 May 1977 introducing a system of
                          ( 97/C 181 /23 )                                premiums for the non-marketing of milk and milk
                                                                          products and for the conversion of dairy herds, did
                                                                           not deliver milk during the reference year opted for by
                (Language of the case: English)                            the Member State concerned;
In Case T-554/93 : Alfred Thomas Edward Saint and
                                                                      3 . declares that the period in respect of which the
Christopher Murray, residing at Penrhos, Gwent ( United                   applicants must be compensated for the losses
Kingdom ) and at Naas, Kildare ( Ireland ) respectively,                  sustained as a result of the application of Regulation
represented by Erik H. Pijnacker Hordijk, of the                           (EEC) No 857/84 is that beginning on 5 August 1987
Amsterdam Bar, and Hendrik J. Bronkhorst, Advocaat                         and ending on 28 March 1989;
with rights of audience before the Hoge Raad der
Nederlanden, instructed by Burges Salmon, Solicitors,
with an address for service in Luxembourg at the
                                                                      4 . orders the parties to forward to the Court, within
Chambers of Luc Frieden, 62 Avenue Guillaume, against
                                                                           12 months of this judgment, the amounts to be paid,
 Council of the European Union ( Agents: Arthur Brautigam
                                                                           established by mutual agreement;
and Michael Bishop ) and Commission of the European
 Communities ( Agents : initially Gerard Rozet and Xavier
Lewis, subsequently Mr Rozet and Christopher Docksey )
— application for annulment, pursuant to Article 173 of               5 . orders the parties, in the absence of an agreement, to
the EEC Treaty, of Article 8 (2 ) ( a ) and the fourth                     submit to the Court their quantified claims;
paragraph of Article 14 of Council Regulation ( EEC )
No 2187/93 of 22 July 1993 providing for an offer of
                                                                      6.   reserves the costs.
compensation to certain producers of milk and milk
 products temporarily prevented from carrying on their
trade ( OJ No L 196, 1993 , p. 6 ), and application for               (') OJ No C 338 , 15 . 12 . 1993 .
compensation, pursuant to Articles 178 and 215 of the
EEC Treaty, for the losses sustained by the applicants
 owing to the fact that they were prevented from
marketing milk as a result of Council Regulation ( EEC)
No 857/84 of 31 March 1984 adopting general rules for
the application of the levy referred to in Article 5 ( c ) of
 Regulation ( EEC ) No 804/68 in the milk and milk
products sector ( OJ No L 90, 1984, p. 13 ), as                         JUDGMENT OF THE COURT OF FIRST INSTANCE
 supplemented by Commission Regulation ( EEC ) No 1371 /                                      of 16 April 1997
 84 of 16 May 1984 ( OJ No L 132, 1984, p. 11 ) — the
 Court of First Instance ( First Chamber, Extended                    in Case T-20/94: Johannes Hartmann v. Council of the
 Composition ), composed of: A. Saggio, President, C. W.              European Union and Commission of the European
 Bellamy, A. Kalogeropoulos, V. Tiili and R. M. Moura                                          Communities (')
 Ramos, Judges; H. Jung, Registrar, has given a judgment              (Action for damages — Non-contractual liability — Milk
 on 16 April 1997, in which it:                                       — Additional levy — Reference quantity — Producers
                                                                      having entered into non-marketing or conversion
                                                                      undertakings — Compensation — Regulation (EEC)
 1 . dismisses as inadmissible the claims for annulment of                          No 2187/93 — Limitation period)
     Article 8 (2) (a) and the fourth paragraph of Article 14
     of Council Regulation (EEC) No 2187/93 of 22 July                                           ( 97/C 181 /24 )
     1 993 providing for an offer of compensation to certain
     producers of milk and milk products temporarily
     prevented from carrying on their trade;                                         (Language of the case: German)
2 . declares that the defendants are bound to make good               In Case T-20/94 : Johannes Hartmann,             residing at
     the damage sustained by the applicants as a result of            Hamminkeln         ( Germany ),      represented by      Bernd


title: Action brought on 8 May 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-170/98)

text:
15.8.98              EN                 Official Journal of the European Communities                                 C 258/15
of the European Communities in Case T-42/96 between                    Hewlett Packard judgment that Article 13 of
Eyckeler & Malt AG, supported by the United Kingdom                    Regulation (EEC) No 1430/79 and Article 5(2) of
of Great Britain and Northern Ireland, and the                         Regulation (EEC) No 1697/79 pursue the same aim,
Commission of the European Communities was brought                     namely to limit the post-clearance payment of import
before the Court of Justice of the European Communities                and export duties to cases where such payment is
on 24 April 1998 by the Commission of the European                     justified and is compatible with a fundamental
Communities, represented by Jean-Louis Dewost,                         principle such as that of the protection of legitimate
Director-General of the Legal Service, and Götz zur                    expectations'. The Court of Justice thereby assumes a
Hausen, Legal Adviser, with an address for service in                  general comparability between the two provisions.
Luxembourg at the Office of Carlos Gómez de la Cruz, a
Member of the Commission's Legal Service, Wagner
                                                                   (1) OJ 1998 C 113, p. 13.
Centre, Kirchberg.
The appellant claims that the Court should:
1. set aside the judgment of the Court of First Instance of
    19 February 1998 in Case T-42/96 (1);                          Action brought on 8 May 1998 by the Commission of the
                                                                     European Communities against the Kingdom of Belgium
2. dismiss the action;                                                                    (Case C-170/98)
                                                                                (98/C 258/27)
3. order the applicant to pay the costs.
                                                                   An action against the Kingdom of Belgium was brought
Pleas in law and main arguments adduced in support:
                                                                   before the Court of Justice of the European Communities
                                                                   on 8 May 1998 by the Commission of the European
Ð Error of law in relation to the plea alleging breach of          Communities, represented by Frank Benyon, Legal
    the rights of the defence:                                     Adviser, and Bernard Mongin, of its Legal Service, acting
                                                                   as Agents, with an address for service in Luxembourg at
                                                                   the office of Carlos Gómez de la Cruz, Wagner Centre,
    The contested judgment erroneously transposes                  Kirchberg.
    considerations applicable to competition proceedings
    to the procedure for remission of import duties and
    thereby concludes that in the procedure for remission          The Commission of the European Communities claims
    of such duties the Commission should allow the                 that the Court should:
    undertaking      access     to  all    non-confidential
    administrative papers, including those which the
    Commission regards as irrelevant or which might be             (1) declare that, by omitting either to adjust the
    detrimental to it. That requirement fails to take into             agreement with Zaire (1) in such a way as to provide
    account the particular features of the procedure for               for fair, free and non-discriminatory access by
    remission of customs duties, in which not only the                 Community nationals to cargo-shares due to Belgium
    conduct of the undertaking but also that of the                    or to denounce that agreement, Belgium has failed to
    authorities of Member States and non-member                        fulfil its obligations under Council Regulation (EEC)
    countries is to be assessed.                                       No 4055/86 of 22 December 1986 applying the
                                                                       principle of freedom to provide services to maritime
                                                                       transport between Member States and between
Ð Error of law in relation to the plea alleging
                                                                       Member States and third countries (2), in particular
    infringement of Article 13 of Council Regulation
                                                                       Articles 3 and 4(1) thereof;
    (EEC) No 1430/79 on the repayment or remission of
    import or export duties:
                                                                   (2) order the Kingdom of Belgium to pay the costs.
    The contested judgment wrongly held the existence of
    an error (within the meaning of Article 5(2) of
    Regulation (EEC) No 1697/79) by the competent                  Pleas in law and main arguments adduced in support:
    authorities not to be a necessary precondition for the
    remission of duties. The Court of First Instance
    interprets the judgment of the Court of Justice in Case        Article 18 of the agreement with Zaire makes provision
    C-250/91 Hewlett Packard France [1993] ECR I-1819              for the two parties' intention not to be bound thereby
    too narrowly. Contrary to the finding in paragraph 137         until after completion of the formalities required under
    of the contested judgment, the Court of Justice did not        their respective laws'. Those formalities were completed
    merely hold the subjective elements of the two                 by Belgium upon adoption of the Law of 21 April 1983
    provisions to be comparable. On the contrary, the              approving the agreement, which was notified to Zaire on
    Court of Justice makes it clear in paragraph 46 of the         13 June 1983, that is to say, prior to the entry into force
 ---pagebreak--- C 258/16               EN                 Official Journal of the European Communities                                    15.8.98
of Regulation (EEC) No 4055/86. Consequently, that                   on 8 May 1998 by the Commission of the European
agreement is an existing agreement which is subject to the           Communities, represented by Frank Benyon, Legal
provisions of Articles 3 and 4 of the Regulation.                    Adviser, and Bernard Mongin, of its Legal Service, acting
                                                                     as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.
The only exceptions to the application of freedom to
provide services introduced on 1 January 1987 by
Article 1(1) of the Regulation are those laid down in
Article 2 in relation to unilateral restrictions, which was          The Commission of the European Communities claims
introduced by way of derogation from Article 1', and in             that the Court should:
Article 4(1)(b) relating to trades not governed by the Code
of Conduct for Liner Conferences, which grants a period
of grace expiring on 1 January 1993 at the latest.
                                                                     (1) declare that, by introducing and maintaining in force
                                                                         cargo-sharing arrangements, in the agreement
                                                                         concluded with the Republic of Togo, which was
As regards trades governed by the Code of Conduct for                    approved by Belgium by the Law of 9 October 1987
Liner Conferences, which are covered by Article 4(1)(a),                 and entered into force after 1 January 1987, the
no period of grace is granted for the requisite adjustment.              Kingdom of Belgium has failed to fulfil its obligations
However, since the Code of Conduct entered into force on                 under Article 5 of Council Regulation (EEC) No 4055/
6 October 1983 for Zaire but not until 30 March 1988                     86 of 22 December 1986 applying the principle of
for Belgium, the provisions of Article 4(1)(a) could not                 freedom to provide services to maritime transport
have applied to that agreement before 30 March 1988 and                  between Member States and between Member States
the adjustment should therefore have been completed by                   and third countries (1);
that date as regards trades governed by the Code.
Consequently, whether trades are governed by
Article 4(1)(a) or by Article 4(1)(b), the time-limit for            (2) order the Kingdom of Belgium to pay the costs.
adjustment of the cargo-sharing provisions expired long
ago.
                                                                     Pleas in law and main arguments adduced in support:
The Kingdom of Belgium is therefore wrong in
maintaining that the time-limits for adjusting the cargo-
sharing arrangements in respect of trades governed by the            The agreement concluded with Togo on 19 October 1984,
United Nations Code of Conduct for Liner Conferences                 which was approved by Belgium on 9 October 1987 and
have not expired and that the date on which Belgium                  entered into force on 19 October 1987, is not an existing'
signed the Code of Conduct did not constitute the                    agreement within the meaning of Article 3 of Regulation
deadline for adjusting the arrangement. The Commission               (EEC) No 4055/86. Contrary to the assertion of the
observes that, in any event, no adjustment has been made             Kingdom of Belgium, it is a future' agremeent prohibited
11 years after the entry into force of the Regulation and            by Article 5 of that Regulation.
5 years after expiry of the final deadline for adjustment
laid down by that Regulation.
                                                                     The agreement provides in Article 21 that it is to enter
                                                                     into force as soon as each of the contracting parties has
( ) Bilateral maritime agreement concluded between Belgium and
 1
    Zaire.                                                           notified the other, through diplomatic channels, of the
(2) OJ L 378 of 31.12.1986, p. 1.                                    completion of the requisite constitutional procedures'. It
                                                                     therefore provides that the parties are to express their
                                                                     willingness to be bound by its terms only by means of a
                                                                     subsequent approval or ratification procedure. In those
                                                                     circumstances, the signature of the agreement in 1984
                                                                     constituted no more than an authentication of the texts
                                                                     (see Article 10(b) of the Vienna Convention) and did not
                                                                     in any way signify Belgium's willingness to be bound by
                                                                     the agreement. No such obligation was entered into by
Action brought on 8 May 1998 by the Commission of the
                                                                     Belgium in accordance with the agreement until
  European Communities against the Kingdom of Belgium
                                                                     19 October 1987, when approval of the agreement by
                        (Case C-171/98)                              means of the Belgian Law approving the agreement' of
                                                                     19 October 1984 was notified, that is to say, well after the
                          (98/C 258/28)                              regulation entered into force. Until that date, Belgium was
                                                                     free, particularly in the light of the new obligations
                                                                     imposed on it by Regulation (EEC) No 4055/86, to refrain
                                                                     from consenting to be bound, vis-aÁ-vis Togo, by
An action against the Kingdom of Belgium was brought                 obligations concerning cargo-sharing arrangements which
before the Court of Justice of the European Communities              were not in accordance with the Regulation.


30.5.98               EN               Official Journal of the European Communities                               C 166/13
       Removal from the register of Case C-56/97 (1)                    Removal from the register of Case C-352/97 (1)
                        (98/C 166/28)                                                     (98/C 166/32)
By order of 6 March 1998 the President of the Sixth
Chamber of the Court of Justice of the European                   By order of 23 March 1998 the President of the Court of
Communities has ordered the removal from the register of          Justice of the European Communities has ordered the
Case C-56/97: Commission of the European Communities              removal from the register of Case C-352/97: Commission
v French Republic.                                                of the European Communities v Ireland.
(1) OJ C 108 of 5.4.1997.                                         (1) OJ C 357 of 22.11.1997.
      Removal from the register of Case C-339/95 (1)
                        (98/C 166/29)                                   Removal from the register of Case C-353/97 (1)
                                                                                (98/C 166/33)
By order of 11 March 1998 the President of the Court of
Justice of the European Communities has ordered the
removal from the register of Case C-339/95 (reference for         By order of 23 March 1998 the President of the Court of
a preliminary ruling from the High Court of Justice,              Justice of the European Communities has ordered the
Queen's Bench Divison, Commercial Court): Compagnia               removal from the register of Case C-353/97: Commission
di Navigazione Marittima and Others v Compagnie                   of the European Communities v Ireland.
Maritime Belge and Others.
                                                                  (1) OJ C 357 of 22.11.1997.
(1) OJ C 351 of 30.12.1995.
      Removal from the register of Case C-310/96 (1)                    Removal from the register of Case C-101/97 (1)
                        (98/C 166/30)
                                                                                (98/C 166/34)
By order of 11 March 1998 the President of the Court of
Justice of the European Communities has ordered the               By order of 26 March 1998 the President of the Court of
removal from the register of Case C-310/96: Commission            Justice of the European Communities has ordered the
of the European Communities v Kingdom of the                      removal from the register of Case C-101/97: Commission
Netherlands.                                                      of the European Communities v Italian Republic.
(1) OJ C 354 of 23.11.1996.
                                                                  (1) OJ C 142 of 10.5.1997.
      Removal from the register of Case C-264/97 (1)
                        (98/C 166/31)                                   Removal from the register of Case C-286/96 (1)
                                                                                (98/C 166/35)
By order of 20 March 1998 the President of the Court of
Justice of the European Communities has ordered the
removal from the register of Case C-264/97 (reference for         By order of 30 March 1998 the President of the Fifth
a preliminary ruling from the Tribunale Amministrativo            Chamber of the Court of Justice of the European
per la Sardegna): SocietaÁ Appia Srl v Comune di Cagliari         Communities has ordered the removal from the register of
and SocietaÁ Cagliari Calcio SpA.                                 Case     C-286/96:     Commission     of the    European
                                                                  Communities v Italian Republic.
(1) OJ C 271 of 6.9.1997.
                                                                  (1) OJ C 294 of 5.10.1996.


title: Case C-443/11: Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands), lodged on 29 August 2011 — F.P. Jeltes, M.A. Peeters, J.G.J. Arnold v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/8

         Reference for a preliminary ruling from the Rechtbank Amsterdam (Netherlands), lodged on 29 August 2011 — F.P. Jeltes, M.A. Peeters, J.G.J. Arnold v Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)
   (Case C-443/11)
   2011/C 355/12
   Language of the case: Dutch

      Referring court

   Rechtbank Amsterdam

      Parties to the main proceedings

      Applicants: F.P. Jeltes, M.A. Peeters, J.G.J. Arnold

      Defendant: Raad van bestuur van het Uitvoeringsinstituut werknemersverzekeringen (Uwv)

      Questions referred

               1.

               Is the supplementary scope of the judgment in Case 1/85 Miethe, (1) which was delivered while Regulation No 1408/71 (2) was in force, still valid under Regulation No 883/2004, (3) that is to say, a right of choice for an atypical frontier worker in respect of the Member State in which he makes himself available to the employment recruitment services, and from which he receives unemployment benefit, on the ground that in the Member State of his choice his prospects of reintegration into working life are greatest? Or does Article 65 of Regulation No 883/2004, considered as a whole, provide sufficient guarantees that a wholly unemployed worker will receive a benefit under conditions which are most favourable for him in his search for work, and has the Miethe judgment lost its added value?

               2.

               Does European Union law, in this case Article 45 TFEU or Article 7(2) of Regulation No 1612/68, (4) preclude the refusal by a Member State to award an unemployment benefit under its national legislation in the case of a migrant worker (frontier worker) who has become wholly unemployed, who was last employed in that Member State and who, given the existence of social and family ties, may be assumed to have the best prospects of reintegration into working life in that Member State, solely on the ground that he resides in another Member State?

               3.

               Having regard to Article 87(8) of Regulation No 883/2004, Article 17 of the Charter of Fundamental Rights of the European Union and the principle of legal certainty, what would be the answer to the foregoing question if, before the date of the entry into force of Regulation No 883/2004, such a worker had been awarded an unemployment benefit under the legislation of the previous State of employment, where the maximum duration of the benefit and of the revival had not yet lapsed at the time of that entry into force (and where that benefit was terminated on the ground that the unemployed person had again found work)?

               4.

               Would the answer to Question 2 be different if undertakings had been given to the unemployed frontier workers concerned that they would be able to apply for the revival of their entitlement to benefits if, after having found new work, they were once again to become unemployed, and the information supplied in that regard does not appear to have been correct or unambiguous as a result of lack of clarity in implementing practice?

      (1)  Case 1/85 Miethe [1986] ECR 1837.

      (2)  Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ English Special Edition, 1971(II), p. 416).

      (3)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1).

      (4)  Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition, 1968(II), p. 475).


title: Judgment of the Court of First Instance 13 December 2001 in Case T-48/98: Compañia española para la fabricación de aceros inoxidables, SA (Acerinox) v Commission of the European Communities (ECSC Treaty — Competition — Agreements, decisions and concerted practices — Alloy surcharge — Price fixing — Burden of proof — Duration of the infringement — Fine — Guidelines on the method of setting fines — Cooperation during the administrative procedure — Principle of equal treatment)

text:
6.4.2002               EN                      Official Journal of the European Communities                                           C 84/55
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               4.    For the rest, dismisses the applications in Cases T-45/98 and
                                                                                T-47/98 in all other respects;
                       13 December 2001                                   5.    In case T-45/98, orders Krupp Thyssen Stainless GmbH and
                                                                                the Commission to bear their own costs;
in Joined Cases T-45/98 and T-47/98: Krupp Thyssens                       6.    In case T-47/98, orders Acciai Speciali Terni SpA to bear its
Stainless GmbH et Acciai speciali Terni SpA v Com-                              own costs and to pay two-thirds of those of the Commission
           mission of the European Communities (1)                              and orders the Commission to bear one-third of its own costs.
                                                                          (1) OJ C 166 of 30.5.1998 and C 151 of 16.5.1998.
(ECSC Treaty — Competition — Agreements, decisions and
concerted practices — Alloy surcharge — Price fixing —
Rights of the defence — Duration of the infringement —
Fine — Guidelines on the method of setting fines —
Cooperation during the administrative procedure — Prin-
                     ciple of equal treatment)
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                         (2002/C 84/101)
                                                                                13 December 2001
              (Language of the case: German and Italian)
                                                                          in Case T-48/98: Compañia española para la fabricación
                                                                          de aceros inoxidables, SA (Acerinox) v Commission of
                                                                                the European Communities (1)
In Joined Cases T-45/98 and T-47/98, Krupp Thyssen Stainless              (ECSC Treaty — Competition — Agreements, decisions and
GmbH, established in Duisberg, Germany, represented by                    concerted practices — Alloy surcharge — Price fixing —
M. Klusmann, O. Lieberknecht and K. Moosecker, lawyers,                   Burden of proof — Duration of the infringement — Fine —
with an address for service in Luxembourg, Acciai Speciali                Guidelines on the method of setting fines — Cooperation
Terni SpA, established in Terni, Italy, represented by L. G. Radi-        during the administrative procedure — Principle of equal
cato di Brozolo, lawyer, with an address for service in                                                 treatment)
Luxembourg applicants, v Commission of the European Com-
munities, represented by W. Wils and K. Leivo, acting as
Agents, assisted by H.-J. Freund and A. dal Ferro, lawyers, with                                    (2002/C 84/102)
an address for service in Luxembourg: application for the
annulment of Commission Decision 98/247/ECSC of 21 Janu-                                      (Language of the case: English)
ary 1998 relating to a proceeding under Article 65 of the
ECSC Treaty (Case IV/35.814 — Alloy Surcharge) (OJ 1998
L 100, p. 55), the Court of First Instance (First Chamber),
composed of: B. Vesterdorf, President, M. Vilaras and N.J. For-           In Case T-48/98, Compañı́a Española para la Fabricación de
wood, Judges, Registrar: G. Herzig, has given a judgment on               Aceros Inoxidables SA (Acerinox), established in Madrid,
13 December 2001, in which it has ruled:                                  Spain, represented by A. Vandencasteele and D. Waelbroeck,
                                                                          lawyers, with an address for service in Luxembourg, v Com-
                                                                          mission of the European Communities, represented by W. Wils
1.    Joins Cases T-45/98 and T-47/98 for the purposes of the             and K. Leivo, acting as Agents, with an address for service in
      judgment;                                                           Luxembourg: Application for the annulment of Commission
                                                                          Decision 98/247/ECSC of 21 January 1998 relating to a
                                                                          proceeding under Article 65 of the ECSC Treaty (Case
2.    Annuls Article 1 of Decision 98/247/ECSC of 21 January              IV/35.814 — Alloy Surcharge) (OJ 1998 L 100, p. 55),
      1998 relating to a proceeding under Article 65 of the ECSC          the Court of First Instance (First Chamber), composed of:
      Treaty (Case IV/35.814 — Alloy Surcharge) in so far as it           B. Vesterdorf, President, M. Vilaras and N.J. Forwood, Judges,
      attributes to Krupp Thyssen Nirosta GmbH responsibility for         Registrar: G. Herzig, Administrator, has given a judgment on
      the infringement committed by Thyssen Stahl AG;                     13 December 2001, in which it has ruled:
3.    Sets the amount of the fines imposed on Krupp Thyssen Nirosta       1.    Sets the amount of the fine imposed on Compañı́a Española
      GmbH and Acciai Speciali Terni SpA by Article 2 of Decision               para la Fabricación de Aceros Inoxidables SA at
      98/247 at EUR 4 032 000;                                                  EUR 3 136 000;
 ---pagebreak--- C 84/56                 EN                       Official Journal of the European Communities                                        6.4.2002
2.    For the rest, dismisses the application;                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
3.    Orders Compañı́a Española para la Fabricación de Aceros
      Inoxidables SA to bear its own costs and to pay two-thirds of                                6 December 2001
      the Commission’s costs and orders the Commission to bear one-
      third of its own costs.                                               in Case T-196/99: Area Cova SA e.a. v Council of the
                                                                            European Union and Commission of the European Com-
                                                                                munities (1)
(1) OJ C 137 of 2.5.1998.
                                                                            (Action for compensation — Non-contractual liability —
                                                                            Fisheries — Conservation of marine resources — Convention
                                                                            on Future Multilateral Cooperation in the North-West Atlan-
                                                                            tic Fisheries — Greenland halibut — Catch quota allocated
                                                                                to the Community fleet)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (2002/C 84/104)
                        11 December 2001
                                                                                (Language of the case: Spanish)
in Case T-191/99: David Petrie and Others v Commission
                of the European Communities (1)
(Transparency — Public access to documents — Commission                     In Case T-196/99, Area Cova, SA, established in Vigo (Spain),
Decision 94/90/ECSC, EC, Euratom — Proceedings for                          Armadora José Pereira, SA, established in Vigo, Armadores
failure to fulfil obligations — Formal notice — Reasoned                    Pesqueros de Aldán, SA, established in Vigo, Centropesca, SA,
opinion — Exception relating to protection of the public                    established in Vigo, Chymar, SA, established in Vigo, Eloymar,
interest — Inspections and investigations — Court proceed-                  SA, established in Estribela (Spain), Exfaumar, SA, established
 ings — Authorship rule — Direct effect of Article 255 EC)                  in Bueu (Spain), Farpespan, SL, established in Moaña (Spain),
                                                                            Freiremar, SA, established in Vigo, Hermanos Gandón, SA,
                          (2002/C 84/103)                                   established in Cangas (Spain), Heroya, SA, established in Vigo,
                                                                            Hiopesca, SA, established in Vigo, José Pereira e Hijos, SA,
                     (Language of the case: Italian)                        established in Vigo, Juana Oya Pérez, residing in Vigo, Manuel
                                                                            Nores González, residing in Marı́n (Spain), Moradiña, SA,
                                                                            established in Cangas, Navales Cerdeiras, SL, established in
                                                                            Camariñas (Spain), Nugago Pesca, SA, established in Bueu,
In Case T-191/99, David Petrie, Victoria Jane Primhak and                   Pesquera Austral, SA, established in Vigo, Pescaberbés, SA,
David Verzoni, residing respectively in Verona, Naples and                  established in Vigo, Pesquerı́as Bı́garo Narval, SA, established
Bologna (Italy), Associazione lettori di lingua straniera in Italia,        in Vigo, Pesquera Cı́es, SA, established in Vigo, Pesca Herculina,
incorporating Committee for the Defence of Foreign Lecturers                SA, established in Vigo, Pesquera Inter, SA, established in
(ALLSI/CDFL), established in Verona, represented by L. Picotti              Cangas, Pesquerı́as Marinenses, SA, established in Marı́n,
and C. Medernach, avocats, with an address for service in                   Pesquerı́as Tara, SA, established in Cangas, Pesquera Vaqueiro,
Luxembourg, v Commission of the European Communities,                       SA, established in Vigo, Sotelo Dios, SA, established in Vigo,
represented by P. Stancanelli and U. Wölker, acting as Agents,              represented by A. Creus Carreras and A. Agustinoy Guilayn,
with an address for service in Luxembourg: application for the              lawyers, v Council of the European Union, represented by
annulment of the Commission decision of 20 July 1999                        R. Gosalbo Bono, J. Carbery and M. Sims, acting as Agents,
refusing access to documents relating to Infringement Pro-                  and Commission of the European Communities, represented
cedure No 96/2208 brought under Article 226 EC against the                  by T. Van Rijn and J. Guerra Fernandez, acting as Agents,
Italian Republic and concerning the situation of foreign-                   with an address for service in Luxembourg: Application for
language lecturers employed in Italian universities, the Court              compensation pursuant to Article 235 EC and the second
of First Instance (Fourth Chamber, Extended Composition),                   paragraph of Article 288 EC in respect of loss suffered by the
composed of: P. Mengozzi, President, R. Garcı́a-Valdecasas,                 applicants as a result of (1) the acceptance by the Commission
V. Tiili, R.M. Moura Ramos and J.D. Cooke, Judges, Registrar:               and the Council of a total allowable catch for 1995 of
J. Palacio González, Administrator, has given a judgment on                27 000 tonnes of Greenland halibut in the Regulatory Area
11 December 2001, in which it has ruled:                                    defined in the Convention on Future Multilateral Cooperation
                                                                            in the North West Atlantic Fisheries and (2) the conclusion of
1.    Dismisses the action;                                                 a bilateral agreement between the Community and Canada
                                                                            and the adoption of Council Regulation (EC) No 1761/95 of
2.    Orders the applicants to pay the defendant’s costs in addition        29 June 1995 amending, for the second time, Regulation (EC)
      to their own costs.                                                   No 3366/94 laying down for 1995 certain conservation and
                                                                            management measures for fishery resources in the Regulatory
                                                                            Area as defined in the Convention on Future Multilateral
(1) OJ C 314 of 30.10.1999.                                                 Cooperation in the North-west Atlantic Fisheries (OJ 1995
                                                                            L 171, p. 1) establishing, with effect from 16 April 1995, a
                                                                            quota of 5 013 tonnes of Greenland halibut for Community


title: Case C-4/05: Reference for a preliminary ruling from the Verwaltungsgericht Aachen by order of that court of 29 December 2004, in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/23

         Reference for a preliminary ruling from the Verwaltungsgericht Aachen by order of that court of 29 December 2004, in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen
   (Case C-4/05)
   (2005/C 57/37)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Aachen (Germany) of 29 December 2004 received at the Court Registry on 6 January 2005, for a preliminary ruling in the case of Hasan Güzeli against Oberbürgermeister der Stadt Aachen (Mayor of the town of Aachen) on the following questions:

               1.

               Does the prohibition of discrimination in Article 10(1) of Decision No 1/80 preclude a Member State from refusing to allow a Turkish worker in the position of the claimant, who was duly registered as belonging to the labour force of the Member State and had a right of unlimited duration in relation to employment on the date of expiry of the national residence permit originally granted to him, to continue to reside there for the duration of his employment?
               Is it material in this context whether the work permit granted to the Turkish migrant worker

                           —

                           was granted under national law without any time-limit

                           —

                           was granted under national law subject to the continuation of the original residence permit but does not automatically expire when residence authorisation comes to an end and remains valid until such time as the alien is no longer entitled to stay in the Member State on even a temporary basis?

               2.

               Is the Member State permitted, having regard to Article 10(1) of Decision No 1/80, to refuse to allow a Turkish worker residence if the latter is employed as a seasonal worker after the expiry date of the latest residence permit granted to him – that is to say, if he does not work in the periods between employment?

               3.

               Does a change in the legal form of national law governing permission to work that takes place after the expiry date of the original residence permit have any effect on the prohibition on refusal of further residence consequent on Article 10(1) of Decision No 1/80?


title: Case T-115/13: Action brought on 22 February 2013 — Dennekamp v Parliament

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/43

         Action brought on 22 February 2013 — Dennekamp v Parliament
   (Case T-115/13)
   2013/C 114/66
   Language of the case: English

      Parties

      Applicant: Gert-Jan Dennekamp (Giethoorn, Netherlands) (represented by: O. Brouwer and T. Oeyen, lawyers)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Parliament dated 11 December 2012 refusing to grant access to (i) all documents that show which current Members of the European Parliament (MEPs) are members of the Additional Pension Scheme (the Pension Scheme), (ii) a list of the names of MEPs who were members of the Pension Scheme after September 2005, and (iii) a list of the names of the present members of the Pension Scheme for whom Parliament pays a monthly contribution. This decision was communicated to the applicant on 12 December 2012 in a letter bearing the reference A(2012)13180; and

               —

               Order the Parliament to pay the applicant’s costs pursuant to Article 87 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging breach of Articles 11 and 42 of the Charter of Fundamental Rights of the European Union; error of law in the application of Article 4(1)(b) Regulation (EC) No 1049/2001 (1) in conjunction with Article 8(b) Regulation (EC) No 45/2001 (2), as the contested decision unduly restricts the scope of the right to receive and impart information contained in Article 11 of the Charter of Fundamental Rights of the European Union (the Charter), and the right of access to official documents contained in the Charter’s Article 42, by misapplying Article 4(1)(b) Regulation (EC) No 1049/2001, in conjunction with Article 8(b) Regulation (EC) No 45/2001, in that:

                           —

                           Firstly, the Parliament was wrong in considering that the applicant did not submit express and legitimate reasons showing the necessity for the personal data, included in the requested documents, to be transferred;

                           —

                           Secondly, the Parliament wrongly considered that the information on membership in the Pension Scheme falls into the private sphere of the MEPs concerned; and

                           —

                           Thirdly, the Parliament erred in law when considering that the legitimate interest of the MEPs concerned prevail over the necessity of the data transfer.

               2.

               Second plea in law, alleging that the Parliament, as a result of its errors of law, did not fulfil its obligation to state sufficient and adequate reasons for the contested decision, thereby breaching the obligation to state adequate reasons under Article 296 TFEU.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43)

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1)


title: Case T-27/03: Action brought on 30 January 2003 by S.P. S.p.A against Commission of the European Communities

text:
22.3.2003              EN                        Official Journal of the European Union                                           C 70/31
Action brought on 28 January 2003 by LEP International                   The applicant states, moreover, that it acted in good faith and
BV against the Commission of the European Communities                    that it was not to blame for the irregularities. Nor, according
                                                                         to the applicant, can any manifest negligence be imputed to it.
                                                                         The fact that the applicant did not take out insurance does
                         (Case T-26/03)                                  not, according to it, constitute negligence. On the contrary,
                                                                         businesses are free to decide whether and, if so, how they
                                                                         cover themselves against possible risks.
                         (2003/C 70/49)
                                                                         (1 ) Council Regulation (EEC) No 2913/92 of 12 October 1992
                   (Language of the case: Dutch)                              establishing the Community Customs Code (OJ No L 302,
                                                                              19.10.1992, p. 1).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 28 January 2003 by LEP Inter-
national BV, established in Schiphol-Rijk (Netherlands), rep-
resented by Cornelis de Bie and Paul Bakker.
                                                                         Action brought on 30 January 2003 by S.P. S.p.A against
                                                                                Commission of the European Communities
The applicant claims that the Court should:
                                                                                (Case T-27/03)
—     annul the decision of the European Commission.
                                                                                (2003/C 70/50)
Pleas in law and main arguments                                                              (Language of the case: Italian)
The applicant seeks the annulment of the Decision of the
European Commission of 7 October 2002 in case REM 08/                    An action against the Commission of the European Communi-
003 concerning an application for remission of import duties             ties was brought before the Court of First Instance of the
under Article 239 of Regulation (EEC) No 2913/92 (1).                    European Communities on 30 January 2003 by S.P. S.p.A.,
                                                                         represented by Gianluca Belotti and Nicola Pisani, lawyers.
The applicant drew up, on the instructions of Hector Inter-
national Tpt. Ltd., documents for the transport of meat to               The applicant claims that the Court should:
Morocco under the external Community transit procedure.
However, the applicant states that, through acts of third                —      declare non-existent and/or null and void or, in any event,
parties, that transit operation was not properly discharged, as                 annul the contested decision;
a result of which the applicant, as the holder of the documents,
was requested to pay the customs duties owed. It therefore
submitted an application to the Netherlands authorities for              —      in the alternative, annul or reduce the penalty imposed
remission of the import duties owed. The application was                        on S.P.;
forwarded to the Commission, which rejected it in the
contested decision.                                                      —      in any event, order the defendant to pay the costs.
The applicant argues that the contested decision infringes
Article 239 of Regulation (EEC) No 2913/92, that it assesses             Pleas in law and main arguments
the facts incorrectly and that it is based on an inadequate
statement of reasons.
                                                                         Among various grounds of annulment, the applicant alleges
                                                                         lack of competence of the Commission to adopt on 17 Decem-
According to the applicant, a special circumstance exists since          ber 2002 a decision based on Article 65 of the ECSC Treaty
the customs authorities knew at an early stage that the external         when that treaty expired on 22 July 2002, resulting in the
transit procedure would not be discharged and did not inform             nullity of the decision. According to the applicants, the
the applicant of this. The applicant further argues that a special       Commission did not have the power to adopt the abovemen-
circumstance exists inasmuch as a Spanish official may have              tioned decision in the absence of an express decision to that
been involved.                                                           effect on the part of the Member States.
 ---pagebreak--- C 70/32                EN                          Official Journal of the European Union                                        22.3.2003
In support of its application, the applicant contests the                  The applicant claims that the Court should:
economic approach adopted in relation to the facts by the
Commission which, on the one hand, defined as the relevant                 —     annul the decision of 11 November 2002 of the Director
market the Italian geographic market but which, on the other                     General of the European Anti-Fraud Office (OLAF) which,
hand, completely overlooked the fact that the average price of                   as an internal service of the Commission of the European
reinforced concrete in Italy has always been, on average, less                   Communities, declares inadmissible the complaint lodged
than that in the other States.                                                   by the Junta de Andalucía.
Furthermore, S.P. contests the use of documents by the
Commission to substantiate its charges, in particular the                  Pleas in law and main arguments
memorandum of a partner undertaking which, in the Com-
mission’s view, provided useful information to understand the
way in which the accused undertaking operated, without such                The applicant in the present proceedings contests the rejection
documents having been notified to the applicant during the                 of the complaint submitted by Counsellor for Agriculture and
proceeding. Moreover, although the Commission was in                       Fisheries to the Director General of the Anti-Fraud Office
possession of them, it failed to mention that it had made use              (OLAF) after becoming aware of the existence of Report IO/
of such cooperation, preventing the applicant from adopting a              2000/7057 concerning the investigations carried out by OLAF
position in good time in relation to the charges made against              into possible irregularities in the olive oil sector in Spain,
it. In that respect also, the applicant seeks the annulment of             concentrating in particular on the territory of the Comunidad
the decision on the ground of a serious breach of the rights of            Autónoma de Andalucía.
defence.
                                                                           In support of its arguments, the applicant alleges:
S.P. further alleges error of law, in particular the misapplication
of Article 65 ECSC, claiming that the contested objections do              —     infringement of the principles of legality, in that OLAF’s
not contain sufficient evidence to support the existence of an                   activities covered areas over which there is no judicial
agreement or concerted practices.                                                oversight, and of equality, inasmuch as such conduct
                                                                                discriminated against any legal or natural person who is
                                                                                not an official, agent or staff of the Community insti-
Finally, S.P. further contests the methods adopted by the                        tutions, who alone may lodge administrative complaints
Commission when determining the fines to be imposed, in                          against OLAF’s conduct.
particular the multiplier and the increment linked to the
allegedly uninterrupted duration of the alleged infringements              —     infringement of the fundamental right of defence.
and to the alleged extreme seriousness, which has not been
proven, of the infringements.
                                                                           —     that OLAF must accept the complaint in issue by analogy
                                                                                with the provisions of Article 14 of Regulation No 1073/
                                                                                1994, and reply to the substantive questions raised in the
                                                                                aforementioned complaint.
Action brought on 27 January 2003 by Comunidad
Autónoma de Andalucía against Commission of the Euro-
                        pean Communities
                                                                           Action brought on 30 January 2003 by The General
                                                                           Workers Union in Denmark (Specialarbejderforbundet i
                          (Case T-29/03)                                   Danmark ‘SID’) against the Commission of the European
                                                                                Communities
                          (2003/C 70/51)
                                                                                (Case T-30/03)
                   (Language of the case: Spanish)
                                                                                (2003/C 70/52)
                                                                                (Language of the case: English)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 27 January 2003 by Comunidad
Autónoma de Andalucía, Seville (Spain), represented by Car-                An action against the Commission of the European Communi-
men Carretero Espinosa de los Monteros, lawyers.                           ties was brought before the Court of First Instance of the


title: Case C-390/14: Request for a preliminary ruling from the Eparkhiako Dikastirio Larnakas (Cyprus) lodged on 18 August 2014  — Astinomikos Diefthintis Larnakas v Masoud Mehrabipari

text:
               20.10.2014

               EN

               Official Journal of the European Union

               C 372/7

         Request for a preliminary ruling from the Eparkhiako Dikastirio Larnakas (Cyprus) lodged on 18 August 2014 — Astinomikos Diefthintis Larnakas v Masoud Mehrabipari
   (Case C-390/14)
   2014/C 372/10
   Language of the case: Greek

      Referring court

   Eparkhiako Dikastirio Larnakas

      Parties to the main proceedings

      Prosecutor: Astinomikos Diefthintis Larnakas

      Defendant: Masoud Mehrabipari

      Questions referred

               1)

               Having regard to the principle of sincere cooperation, the principle of effectiveness with a view to achieving the objectives of directives and the principle that penalties must be proportionate, appropriate and reasonable, can Articles 15 and 16 of Directive 2008/115/EC (1) be interpreted as permitting criminal proceedings to be brought on the basis of national legislation that existed before harmonisation (Article 19(1)(f) and (i) of the [Aliens and Immigration Law (‘Chapter 105’)]) against an illegally staying third-country national upon whom unsuccessful coercive removal measures have been imposed and who has remained in detention for a period greater than 18 months, because he does not have a passport in his possession and does not cooperate with the authorities for the purpose of issue of such a passport through his embassy, pleading fear that he will be persecuted by the Iranian authorities?

               2)

               If the above question is answered in the affirmative, can the criminal proceedings in question be brought immediately after the maximum period of 18 months’ detention for the purposes of deportation has been completed, with the result that the illegally staying third-country national is not released, but can continue to be detained because the criminal proceedings against him are pending if the court considers that necessary because of the risk of absconding?

               3)

               What is the meaning of a ‘lack of cooperation’ by the third-country national in Article 15(6)(a) of Directive 2008/115/EC and, in particular, is it permissible for its meaning to coincide with the provisions of national law (Article 19(1)(f) and (i) of the [Aliens and Immigration Law (‘Chapter 105’)]) which criminalise any refusal to ‘produce to the Director any document that the Director might request’ and any ‘defi[ance] or hind[rance], whether actively or passively, [of] any Director in the performance of his duties’ on account of failure to produce the passport, whilst, at the same time, no evidence is adduced relating to the actions which the authorities have taken vis-à-vis the country of origin for the successful removal of the third-country national?

      (1)  Directive 2008/115/EC of the European Parliament and of the Council of 16 December 2008 on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348, p. 98).


title: Case F-85/09: Action brought on 19 October 2009 — Rossi Ferreras v Commission

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/45

         Action brought on 19 October 2009 — Rossi Ferreras v Commission
   (Case F-85/09)
   2009/C 312/74
   Language of the case: French

      Parties

      Applicant: Francisco Rossi Ferreras (Luxembourg, Luxembourg) (represented by: F. Frabetti, lawyer)

      Defendant: Commission of the European Communities

      Subject-matter and description of the proceedings

   Action for annulment of the applicant's career development report for the period from 1 July 2001 to 31 December 2002.

      Form of order sought

               —

               Annul the applicant's career development report for the period from 1 July 2001 to 31 December 2002;

               —

               Order the Commission of the Commission of the European Communities.


title: Joined Cases C-236/08 to C-238/08: Judgment of the Court (Grand Chamber) of 23 March 2010 (reference for a preliminary ruling from the Cour de cassation — France) — Google France, Google, Inc. v Louis Vuitton Malletier (C-236/08), Viaticum SA, Luteciel SARL (C-237/08), Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL (C-238/08) (Trade marks — Internet — Search engine — Keyword advertising — Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites offering imitation goods — Directive 89/104/EEC — Article 5 — Regulation (EC) No 40/94 — Article 9 — Liability of the search engine operator — Directive 2000/31/EC ( ‘Directive on electronic commerce’ ))

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/2

         Judgment of the Court (Grand Chamber) of 23 March 2010 (reference for a preliminary ruling from the Cour de cassation — France) — Google France, Google, Inc. v Louis Vuitton Malletier (C-236/08), Viaticum SA, Luteciel SARL (C-237/08), Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL (C-238/08)
   (Joined Cases C-236/08 to C-238/08) (1)

   (Trade marks - Internet - Search engine - Keyword advertising - Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites offering imitation goods - Directive 89/104/EEC - Article 5 - Regulation (EC) No 40/94 - Article 9 - Liability of the search engine operator - Directive 2000/31/EC (‘Directive on electronic commerce’))
   2010/C 134/02
   Language of the case: French

      Referring court

   Cour de cassation

      Parties to the main proceedings

      Applicants: Google France, Google, Inc.

      Defendants: Louis Vuitton Malletier (C-236/08), Viaticum SA, Luteciel SARL (C-237/08), Centre national de recherche en relations humaines (CNRRH) SARL, Pierre-Alexis Thonet, Bruno Raboin, Tiger SARL (C-238/08)

      Re:

   Reference for a preliminary ruling — Cour de Cassation — Interpretation of Articles 5(1)(a) and (b) and (2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Article 9(1)(a) to (c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (OJ 2000 L 178, p. 1) — Concept of ‘use’ of the mark and rights of the proprietor thereof — Provider of paid Internet referencing services who does not advertise his own goods or services but makes available to advertisers keywords reproducing or imitating registered trade marks and arranges, by the referencing agreement, to create and favourably display, on the basis of those keywords, advertising links to sites offering infringing goods — Conditions under which the service provider storing information provided by the recipients of those services does not incur liability

      Operative part of the judgment

               1.

               Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prohibit an advertiser from advertising, on the basis of a keyword identical with that trade mark which that advertiser has, without the consent of the proprietor, selected in connection with an internet referencing service, goods or services identical with those for which that mark is registered, in the case where that advertisement does not enable an average internet user, or enables that user only with difficulty to ascertain whether the goods or services referred to therein originate from the proprietor of the trade mark or an undertaking economically connected to it or, on the contrary, originate from a third party.

               2.

               An internet referencing service provider which stores, as a keyword, a sign identical with a trade mark and organises the display of advertisements on the basis of that keyword does not use that sign within the meaning of Article 5(1) and (2) of Directive 89/104 or of Article 9(1) of Regulation No 40/94.

               3.

               Article 14 of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) must be interpreted as meaning that the rule laid down therein applies to an internet referencing service provider in the case where that service provider has not played an active role of such a kind as to give it knowledge of, or control over, the data stored. If it has not played such a role, that service provider cannot be held liable for the data which it has stored at the request of an advertiser, unless, having obtained knowledge of the unlawful nature of those data or of that advertiser’s activities, it failed to act expeditiously to remove or to disable access to the data concerned.

      (1)  OJ C 209, 15.8.2008.