title: JUDGMENT OF THE COURT (Fifth Chamber) of 16 July 1998 in Case C-210/96 (reference for a preliminary ruling from the Bundesverwaltungsgericht): Gut Springenheide GmbH, Rudolf Tusky v. Oberkreisdirektor des Kreises Steinfurt - Amt für Lebensmittelüberwachung, Joined party: Oberbundesanwalt beim Bundesverwaltungsgericht (Marketing standards for eggs - Promotional descriptions or statements liable to mislead the purchaser - Reference consumer)

text:
26.9.98              EN                 Official Journal of the European Communities                                          C 299/7
              JUDGMENT OF THE COURT                                3. Protocol 3 cannot be interpreted in such a way that a
                       of 16 July 1998                                  deportation order made by the Jersey authorities
                                                                        against a national of a Member State other than the
in Case C-171/96 (reference for a preliminary ruling from               United Kingdom would have the effect of prohibiting
the Royal Court of Jersey): Rui Alberto Pereira Roque v.                that person's entry to and residence in the territory of
    His Excellency the Lieutenant Governor of Jersey (1)                the United Kingdom for reasons and considerations
(Free movement of persons Ð Act of Accession of 1972                    other than those for which the United Kingdom
Ð Protocol 3 concerning the Channel Islands and the Isle                authorities might otherwise restrict the free movement
                     of Man Ð Jersey)                                   of persons under Community law.
                        (98/C 299/11)
                                                                   (1) OJ C 197, 6.7.1996.
               (Language of the case: English)                     (2) Official Journal, English Special Edition, 27.3.1972, p. 164.
                                                                   (3) Official Journal, English Special Edition, 27.3.1972, p. 14.
In Case C-171/96: reference to the Court under Article 177
of the EC Treaty from the Royal Court of Jersey for a
preliminary ruling in the proceedings pending before that
court between Rui Alberto Pereira Roque and His
Excellency the Lieutenant Governor of Jersey, on the
interpretation of Article 4 of Protocol 3 on the Channel                           JUDGMENT OF THE COURT
Islands and the Isle of Man (2) annexed to the Act
                                                                                (Fifth Chamber)
concerning the Conditions of Accession of the Kingdom of
Denmark, Ireland and the United Kingdom of Great                                            of 16 July 1998
Britain and Northern Ireland to the European Economic
                                                                   in Case C-210/96 (reference for a preliminary ruling from
Community and to the European Atomic Energy
                                                                   the Bundesverwaltungsgericht): Gut Springenheide GmbH,
Community and the adjustments to the Treaties (3) Ð the
                                                                   Rudolf Tusky v. Oberkreisdirektor des Kreises Steinfurt Ð
Court, composed of: G. C. Rodríguez Iglesias, President,
                                                                   Amt für Lebensmittelüberwachung, Joined party:
C. Gulmann, H. Ragnemalm and M. Wathelet, Presidents
                                                                       Oberbundesanwalt beim Bundesverwaltungsgericht (1)
of Chambers, G. F. Mancini, J. C. Moitinho de Almeida,
P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward, J.-P.             (Marketing standards for eggs Ð Promotional descriptions
Puissochet, G. Hirsch, P. Jann and L. Sevón (Rapporteur),          or statements liable to mislead the purchaser Ð Reference
Judges; A. La Pergola, Advocate General; H. von Holstein,                                       consumer)
Deputy Registrar, has given a judgment on 16 July 1998,
                                                                                (98/C 299/12)
in which it has ruled:
1. the rule on equal treatment set out in Article 4 of                             (Language of the case: German)
    Protocol 3 on the Channel Islands and the Isle of Man
    annexed to the Act concerning the Conditions of                  (Provisional translation; the definitive translation will be
    Accession of the Kingdom of Denmark, Ireland and                         published in the European Court Reports)
    the United Kingdom of Great Britain and Northern
    Ireland to the European Economic Community and to
    the European Atomic Energy Community and the                   In Case C-210/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesverwaltungsgericht
    adjustments to the Treaties does not have the effect of
                                                                   (Germany) for a preliminary ruling in the proceedings
    prohibiting the deportation from Jersey of nationals of
    a Member State other than the United Kingdom, even             pending before that court between Gut Springenheide
                                                                   GmbH, Rudolf Tusky and Oberkreisdirektor des Kreises
    though British citizens, including those who are not
    Channel Islanders within the meaning of Article 6 of           Steinfurt Ð Amt für Lebensmittelüberwachung, Joined
    Protocol 3, are not liable to be deported from Jersey;         party: Oberbundesanwalt beim Bundesverwaltungsgericht,
                                                                   on the interpretation of Article 10(2)(e) of Council
2. Article 4 of Protocol 3 is not to be interpreted as             Regulation (EEC) No 1907/90 of 26 June 1990 on certain
    limiting the reasons for which a national of a Member          marketing standards for eggs (2) Ð the Court (Fifth
    State other than the United Kingdom may be deported            Chamber), composed of: C. Gulmann, President of
    from Jersey to those justified on grounds of public            Chamber, M. Wathelet, J. C. Moitinho de Almeida,
    policy, public security or public health, laid down by         D. A. O. Edward and J.-P. Puissochet (Rapporteur),
    Article 48(3) of the EC Treaty and set out in detail by        Judges; J. Mischo, Advocate General; H. A. Rühl,
    Council Directive 64/221/EEC of 25 February 1964               Principal Administrator, for the Registrar, has given a
    on the coordination of special measures concerning the         judgment on 16 July 1998, in which it has ruled:
    movement and residence of foreign nationals which
    are justified on grounds of public policy, public              in order to determine whether a statement intended to
    security or public health. Article 4 of Protocol 3 does,       promote sales of eggs is liable to mislead the purchaser, in
    however, prohibit the Jersey authorities from making a         breach of Article 10(2)(e) of Regulation (EEC) No 1907/
    deportation order against a national of another                90 of 26 June 1990 on certain marketing standards for
    Member State by reason of conduct which, when                  eggs, the national court must take into account the
    attributable to citizens of the United Kingdom, does           presumed expectations which it evokes in an average
    not give rise on the part of the Jersey authorities to         consumer who is reasonably well-informed and reasonably
    repressive measures or other genuine and effective             observant and circumspect. However, Community law
    measures intended to combat such conduct;                      does not preclude the possibility that, where the national
 ---pagebreak--- C 299/8               EN                Official Journal of the European Communities                                      26.9.98
court has particular difficulty in assessing the misleading             conformity with Community law or to disapply the
nature of the statement or description in question, it may              legislation in a situation falling outside the scope of
have recourse, under the conditions laid down by its own                Community law.
national law, to a consumer research poll or an expert's
report as guidance for its judgment.                               (1) OJ C 269, 14.9.1996.
(1) OJ C 247, 24.8.1996.
(2) OJ L 173, 6.7.1990, p. 5.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
               JUDGMENT OF THE COURT                                                       of 16 July 1998
                        of 16 July 1998                            in Case C-287/96 (reference for a preliminary ruling from
                                                                   the Bundesfinanzhof): Kyritzer Stärke GmbH v.
in Case C-264/96 (reference for a preliminary ruling from                             Hauptzollamt Potsdam (1)
the House of Lords): Imperial Chemical Industries plc
(ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of           (Agriculture Ð Common organisation of the markets Ð
                            Taxes) (1)                             Production refunds Ð System of securities Ð Time limits
                                                                       Ð Primary requirement Ð Subordinate requirement)
(Right of establishment Ð Corporation tax Ð Surrender
by one company to another company in the same group of                                      (98/C 299/14)
tax relief on trading losses Ð Residence requirement
imposed on group companies Ð Discrimination according                              (Language of the case: German)
to the place of the corporate seat Ð Obligations of the
                        national court)
                                                                     (Provisional translation; the definitive translation will be
                         (98/C 299/13)
                                                                             published in the European Court Reports)
                (Language of the case: English)                    In Case C-287/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesfinanzhof for a
                                                                   preliminary ruling in the proceedings pending before that
In Case C-264/96: reference to the Court under Article 177
                                                                   court between Kyritzer Stärke GmbH and Hauptzollamt
of the EC Treaty from the House of Lords (United
                                                                   Potsdam, on the interpretation of Commission Regulation
Kingdom) for a preliminary ruling in the proceedings
                                                                   (EEC) No 2220/85 of 22 July 1985 laying down common
pending before that court between Imperial Chemical
                                                                   detailed rules for the application of the system of
Industries plc (ICI) and Kenneth Hall Colmer (Her
                                                                   securities for agricultural products (2) in conjunction with
Majesty's Inspector of Taxes), on the interpretation of
                                                                   Commission Regulation (EEC) No 1722/93 of 30 June
Articles 5 and 52 of the EC Treaty Ð the Court,
                                                                   1993 laying down detailed rules for the application of
composed of: G. C. Rodríguez Iglesias, President, H.
                                                                   Council Regulations (EEC) No 1766/92 and (EEC)
Ragnemalm, M. Wathelet (Rapporteur) and R. Schintgen,
                                                                   No 1418/76 concerning production refunds in the cereals
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                   and rice sectors respectively (3) Ð the Court (Fifth
Almeida, J. L. Murray, D. A. O. Edward, P. Jann, L.
                                                                   Chamber), composed of: C. Gulmann, President of
Sevón and K. M. Ioannou, Judges; G. Tesauro, Advocate
                                                                   Chamber, M. Wathelet, D. A. O. Edward, P. Jann
General; L. Hewlett, Administrator, for the Registrar, has
                                                                   (Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate
given a judgment on 16 July 1998, in which it has ruled:
                                                                   General; L. Hewlett, Administrator, for the Registrar, has
                                                                   given a judgment on 16 July 1998, in which it has ruled:
1. Article 52 of the EC Treaty precludes legislation of a
    Member State which, in the case of companies                   Article 10(1) of Commission Regulation (EEC) No 1722/
    established in that State belonging to a consortium            93 of 30 June 1993 laying down detailed rules for the
    through which they control a holding company, by               application of Council Regulations (EEC) No 1766/92
    means of which they exercise their right to freedom of         and (EEC) No 1418/76 concerning production refunds in
    establishment in order to set up subsidiaries in other         the cereals and rice sectors respectively is to be interpreted
    Member States, makes a particular form of tax relief           as follows:
    subject to the requirement that the holding company's
    business consists wholly or mainly in the holding of
    shares in subsidiaries that are established in the             Ð the use of a product falling within CN code
    Member State concerned;                                             3505 10 50, as prescribed by that provision,
                                                                        constitutes a primary requirement within the meaning
                                                                        of Article 20(2) of Commission Regulation (EEC)
2. in circumstances such as those in point in the main                  No 2220/85 of 22 July 1985 laying down common
    proceedings, Article 5 of the EC Treaty does not                    detailed rules for the application of the system of
    require the national court to interpret its legislation in          securities for agricultural products,


C 246/46              EN                      Official Journal of the European Communities                                  28.8.1999
       Removal from the register of Case T-32/96 (1)                             Removal from the register of Case T-6/97 (1)
                        (1999/C 246/93)                                                           (1999/C 246/96)
                   (Language of the case: French)                                           (Language of the case: English)
By order of 12 April 1999 the President of the Second                    By order of 5 May 1999 the President of the Fifth Chamber of
Chamber (Extended Composition) of the Court of First Instance            the Court of First Instance of the European Communities has
of the European Communities has ordered the removal from                 ordered the removal from the register of Case T-6/97: Com-
the register of Case T-32/96: Société Générale v Commission              africa SpA and Dole Fresh Fruit Europe Ltd & Co. v Com-
of the European Communities.                                             mission of the European Communities.
(1) OJ C 133 of 4.5.1996.                                                (1) OJ C 74 of 8.3.1997.
Removal from the register of Joined Cases T-153/96 and
                           T-8/97 (1)                                           Removal from the register of Case T-62/97 (1)
                        (1999/C 246/94)                                                           (1999/C 246/97)
                  (Language of the case: English)                                            (Language of the case: French)
By order of 25 February 1999 the President of the Fifth                  By order of 12 April 1999 the President of the Second
Chamber, Extended Composition of the Court of First Instance             Chamber (Extended Composition) of the Court of First Instance
of the European Communities has ordered the removal from                 of the European Communities has ordered the removal from
the register of Joined Cases T-153/96 and T-8/97: Union                  the register of Case T-62/97: Société Générale v Commission
Carbide Corporation v Commission of the European Com-                    of the European Communities.
munities.
                                                                         (1) OJ C 166 of 31.5.1997.
(1) OJ C 354 of 23.11.1996 and OJ C 74 of 8.3.1997.
                                                                                Removal from the register of Case T-124/97 (1)
        Removal from the register of Case T-1/97 (1)
                        (1999/C 246/95)                                                           (1999/C 246/98)
                   (Language of the case: French)                                           (Language of the case: Spanish)
By order of 31 May 1999 the President of the Second Chamber              By order of 15 April 1999 the President of the First Chamber
of the Court of First Instance of the European Communities               of the Court of First Instance of the European Communities
has ordered the removal from the register of Case T-1/97:                has ordered the removal from the register of Case T-124/97:
Jean-Luc Delhaye v Commission of the European Communi-                   Miguel Dı́az-Llanos La Roche v Commission of the European
ties.                                                                    Communities.
(1) OJ C 54 of 22.2.1997.                                                (1) OJ C 181 of 14.6.1997.


title: Case C-314/04: Reference for a preliminary ruling by the Tribunal Superior de Justicia de la Comunidad Valenciana by order of that court of 12 July 2004 in the case of R.M. Torres Aucejo against Fondo de Garantía Salarial

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/31

         Reference for a preliminary ruling by the Tribunal Superior de Justicia de la Comunidad Valenciana by order of that court of 12 July 2004 in the case of R.M. Torres Aucejo against Fondo de Garantía Salarial
   (Case C-314/04)
   (2004/C 228/65)
   Reference has been made to the Court of Justice of the European Communities by order of the Tribunal Superior de Justicia de la Comunidad Valenciana (Spain) (Chamber for Social and Labour Matters of the High Court of Justice of the Community of Valencia) of 12 July 2004 received at the Court Registry on 26 July 2004, for a preliminary ruling in the case of R.M. Torres Aucejo against the Fondo de Garantía Salarial.
   The Tribunal Superior de Justicia de la Comunidad Valenciana asks the Court of Justice to rule on questions identical to those in Case C-520/03 (1).

      (1)  OJ C 59 of 6.3.2004.


title: Case C-52/02: Action brought on 20 February 2002 by the Commission of the European Communities against the United Kingdom

text:
20.4.2002                EN                    Official Journal of the European Communities                                        C 97/5
Pleas in law and main arguments                                           Action brought on 20 February 2002 by the Commission
                                                                          of the European Communities against the United King-
                                                                                dom
Pleas in law and main arguments are similar to those put
forward in Case C-44/02 (2); the time-limit for transposition
expired on 21 December 2000.                                                                        (Case C-52/02)
(1) OJ 2000 L 173, p. 1.
(2) See page 4 of this OJ.                                                                         (2002/C 97/11)
                                                                          An action against the United Kingdom was brought before the
                                                                          Court of Justice of the European Communities on 20 February
Action brought on 19 February 2002 by the Commission                      2002 by the Commission of the European Communities,
        of the European Communities against Ireland                       represented by Michael Shotter, acting as Agent, with an
                                                                          address for service in Luxembourg.
                            (Case C-51/02)
                            (2002/C 97/10)                                The Applicant claims that the Court should:
                                                                          1)    declare that by failing to adopt the laws, regulations
An action against Ireland was brought before the Court of                       and administrative provisions necessary to comply with
Justice of the European Communities on 19 February 2002 by                      Directive 2000/71/EC (1) of 7 November 2000 to adapt
the Commission of the European Communities, represented                         the measuring methods as laid down in Annexes I, II,
by Marie Wolfcarius and Michael Shotter, acting as Agents,                      III and IV to Directive 98/70/EC (2) of the European
with an address for service in Luxembourg.                                      Parliament and of the Council to technical progress as
                                                                                foreseen in Article 10 of that Directive or, in any event,
                                                                                by failing to notify such provisions to the Commission,
The Applicant claims that the Court should:                                     the United Kingdom of Great Britain and Northern Ireland
                                                                                has failed to fulfil its obligations under Article 2(1)
1)    declare that by failing to adopt the laws, regulations                    and 2(2) of this Directive;
      or administrative provisions necessary to comply with
      Commission Directive 1999/52/EC(1) of 26 May 1999
      adapting to technical progress Council Directive                    2)    order the United Kingdom to pay the costs.
      96/96/EC (2) on the approximation of the laws of the
      Member States relating to roadworthiness tests for motor
      vehicles and their trailers, or in any event by failing to
      inform the Commission of those measures, Ireland has
      failed to fulfil its obligations under that Directive;
                                                                          Pleas in law and main arguments
2)    order Ireland to pay the costs.
                                                                          Article 249 EC, under which a directive shall be binding as to
Pleas in law and main arguments                                           the result to be achieved, upon each Member State, carries by
                                                                          implication an obligation on the Member States to observe the
                                                                          period for compliance laid down in the directive. That period
Article 249 EC, under which a directive shall be binding as to            expired on 1 January 2001 without the United Kingdom
the result to be achieved, upon each Member State, carries by             having enacted the provisions necessary to comply with the
implication an obligation on the Member States to observe the             directive referred to in the conclusions of the Commission.
period for compliance laid down in the directive. That period
expired on 1 October 2000 without Ireland having enacted
the provisions necessary to comply with the directive referred
to in the conclusions of the Commission.
                                                                          (1) OJ L 287, 14.11.2000, p. 46.
                                                                          (2) of 13 October 1998 (OJ L 350, 28.12.1998, p. 58).
(1) OJ L 142, 5.6.1999, p. 26.
(2) of 20 December 1996 (OJ L 46, 17.2.1997, p. 1).


title: Action brought on 25 February 1995 by Holderbank Financière Glarus Aktiengesellschaft against the Commission of the European Communities (Case T-68/95)

text:
13 . 5 . 95          LEN                   Official Journal of the European Communities                                 No C 119/25
      2 , no reasons whatever were given for the Decision of          Michael Esser-Wellié, Rechtsanwälte, Düsseldorf, with an
           23 September 1993 to close the proceeding in               address for service in Luxembourg at the Chambers of Bonn
           relation to 12 German undertakings and six                 & Schmitt, 62 Avenue Guillaume.
           Spanish undertakings .
                                                                      The applicant claims that the Court should:
IV. In the alternative, the applicant argues that the fine
                                                                      — annul the defendant's Decision of 30 November 1994
      imposed should be reduced for infringement of
      Article 15 ( 2 ) of Regulation No 17/62 as regards:                 relating to a proceeding under Article 85 of the EC
                                                                          Treaty (IV/33.126 and 33.322 — Cement), notified to
       1 , the gravity and duration of the infringement;                  the applicant on 3 February 1995 , in so far as that
           and                                                            Decision relates to the applicant,
      2 , the calculation of the amount of the fine .                 — in the alternative, reduce the fine imposed on the
                                                                          applicant to such amount as the Court may
(!) OJ No L 343 , 30 . 12 . 1994, p . 1 .                                 determine,
                                                                      — order the defendant to pay the costs of the
                                                                          proceedings .
                                                                      Pleas in law and main arguments adduced in support:
Action brought on 24 February 1995 by Reinhard Lassek
against the Council of the European Union and the                      I. The applicant complains of the following breaches of
                                                                           formal law:
          Commission of the European Communities
                         ( Case T-67/95 )                                  1 . The defendant infringed essential procedural
                           ( 95/C 119/48 )                                     requirements by granting the applicant only partial
                                                                               access to documents during the administrative
                (Language of the case: German)                                 proceeding and no access whatever after the
                                                                               adoption of the Decision . The defendant based its
An action against the Council of the European Union and                        Decision on documents with which the applicant
the Commission of the European Communities was brought                         was unacquainted and also failed to translate
before the Court of First Instance of the European                             foreign-language evidence .
Communities on 24 February 1995 by Reinhard Lassek,                        2. The defendant failed to comply with the
Grefrath-Mulhausen (Federal Republic of Germany),                              Community-law requirements regarding evidence
represented by Dr Lukanow, Rechtsanwalt, Euskirchen,                           and made findings of fact in respect of complex sets
with an address for service in Luxembourg at the Chambers                      of individual circumstances and periods of time
of Dupong & Associés, 14A, Rue des Bains .                                     which were unsupported by evidence, or at any rate
                                                                               were supported by insufficient evidence.
The applicant claims that the Court should :
                                                                           3 . The defendant provided inadequate and
— order the defendants to pay the applicant compensation                       contradictory reasons for its Decision and based it
     for the period of five milk years from 1 April 1988 in the                on findings which were both unsubstantiated and
     amount of DM 46 412,01 , together with 8 % interest                       incapable of verification.
     thereon from 1 July 1985 .
                                                                           4 . The calculation of the fine is defective since the
Pleas in law and main arguments adduced in support:                            defendant wrongly proceeds on the basis of a
                                                                               particularly serious infringement, assumes that the
The pleas in law and main arguments are similar to those in                    alleged infringement lasted for an excessively long
Case T-20/94 .                                                                 period of time and calculates the fine on the basis
                                                                               of an incaccurate turnover figure and reference
                                                                               period .
                                                                               By committing these breaches, the Commission
                                                                               infringed the principle of equal treatment in
   Action brought on 25 February 1995 by Holderbank                            contradictory proceedings as well as the principles
       Financière Glarus Aktiengesellschaft against the                        of a fair hearing and due process.
          Commission of the European Communities
                         (Case T-68/95 )                              II. The applicant complains of the following breaches of
                                                                           substantive law:
                           ( 95/C 119/49 )
                                                                           1 , ( a ) The applicant contests the defendant's
                (Language of tbe case: German)                                       allegations regarding the European Task Force
                                                                                and its incompatibility with Article 85 ( 1 ) of the
An action against the Commission of the European                                     EC Treaty. The applicant takes particular issue
Communities was brought before the Court of First                                    with the defendant's claim that the European
Instance of the European Communities on 25 February                                  Task Force remains active up to the present
1995 by Holderbank Financière Glarus Aktiengesellschaft,                             day: on the contrary, that body ceased activity
Jona ( Switzerland), represented by Cornelis Canenbley and                           at the end of May 1987.
 ---pagebreak--- No C 119/26            EN                  Official Journal of the European Communities                                    13 . 5 . 95
         ( b ) The defendant is wrong to regard the                   The applicant claims that the Court should:
               establishment of Interciment SA as constituting
               a   permanent restriction      on competition.         — annul         Commission         Decision  94/815/EC        of
               Interciment SA was established as a subsidiary             30 November 1994 (*) in so far as it affects the
               of the applicant and was subsequently                      applicant,
               continued as no more than a shell company
               until its dissolution in March 1993 . As a             — in the alternative, annul the fine imposed on the
               'sleeping company', it was never active and                applicant,
               could never have generated any 'threat
               potential'. The participation of the single            — in the further alternative, reduce the amount of the fine
               temporary partner was discontinued in                      imposed on the applicant at the discretion of the Court
               November 1988 , with the result that any                   of First Instance, and
               infringements must be regarded as having been
               terminated by this date at the latest.                 — order the Commission to pay the costs .
         (c ) The applicant denies having ever concluded
               agreements in restraint of competition with the        Pleas in law and main arguments adduced in support:
               Greek producers Titan and Heracles. The
               relevant contracts with the Greek producers            The applicant relies upon the following grounds in support
               were concluded 'at arm's length', not by the           of its claims :
               applicant, but by its Spanish subsidiary
               'UMAR', which is not involved in the
               proceedings . The applicant also denies having           I. Breach of procedural guarantees . The applicant argues
                                                                            that its procedural rights have been seriously breached
               participated in concerted practices designed to
                                                                            for the following reasons:
               attract customers away from the Calcestruzzi
               undertaking.
                                                                            1 . Lack of clarity in the file;
         ( d ) The applicant denies having participated in a
               comprehensive cartel, the alleged Cembureau                  2. Defects in the Statement of Objections;
               agreement. The conduct of which it stands
               accused by the defendant ( even assuming it to               3 . Limited access to the file;
               be established ) is not of such kind as to prove
               participation in the alleged Cembureau                       4. Submission of illegible and erroneously cited
               agreement. The stratagem of a 'single and                        evidence and failure to translate certain documents
               continuous course of conduct' adopted to cover                   thereby impairing the applicant's right to a fair
               over the lack of evidence cannot obscure that
               fact.
                                                                                hearing.
    2 . In calculating the fine the defendant failed to take           II. Manifest errors in the assessment of the applicant's
        into account the fact that the infringements of which               conduct and failure to prove that its conduct infringed
        the applicant is accused are not serious                            Article 85 of the EC Treaty. The applicant contends
        infringements and that Interciment SA was no more                   that :
        than a sleeping company quite incapable of
        influencing market conditions. In any event, the                    1 . It was never involved in any agreement or
        defendant erred with regard to the assumed                              concerted practice concerning the so-called
        duration of the applicant's alleged infringements .                     ' Cembureau Principle';
                                                                            2 . The 'Export Policy Committee ' ( EPC) was not a
                                                                                vehicle for applying the so-called 'Cembureau
Action brought on 27 February 1995 by Hornos Ibéricos                           Agreement';
   Alba, SA ('Hisalba') against the Commission of the
                     European Communities                                   3 . The EPC was a legitimate forum for coordinating
                         (Case T-69/95 )                                        export activities and did not therefore constitute
                                                                                concerted action within the meaning of
                          ( 95/C 119/50 )                                       Article 85 ( 1 ).
                (Language of the case: Spanish)
                                                                      III. As a subsidiary plea, as regards the fine imposed, the
An action against the Commission of the European                            applicant contends that the Commission has made
Communities was brought before the Court of First                           manifest errors in assessing the seriousness and the
Instance on 27 February 1995 by Hornos Ibéricos, SA                         duration of the infringement alleged.
('Hisalba'), represented by Michael Schutte, of the Berlin
Bar, instructed by Audrey Stacey Winter and Luis Suârez de            (!) OJ No L 343 , 30 . 12 . 1994 , p . 1 .
Lezo Mantilla of the Madrid Bar, with an address for service
in Luxembourg at the Chambers of Axel Bonn, 62 Avenue
Guillaume,


title: Case C-275/15: Judgment of the Court (Fourth Chamber) of 1 March 2017 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — ITV Broadcasting Limited, ITV2 Limited, ITV Digital Channels Limited, Channel Four Television Corporation, 4 Ventures Limited, Channel 5 Broadcasting Limited, ITV Studios Limited v TVCatchup Limited, TVCatchup (UK) Limited, Media Resources Limited (Reference for a preliminary ruling — Directive 2001/29/EC — Harmonisation of certain aspects of copyright and related rights in the information society — Article 9 — Access to cable of broadcasting services — Concept of ‘cable’ — Retransmission of broadcasts of commercial television broadcasters by a third party via the internet — ‘Live streaming’)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/3

         Judgment of the Court (Fourth Chamber) of 1 March 2017 (request for a preliminary ruling from the Court of Appeal (England & Wales) (Civil Division) — United Kingdom) — ITV Broadcasting Limited, ITV2 Limited, ITV Digital Channels Limited, Channel Four Television Corporation, 4 Ventures Limited, Channel 5 Broadcasting Limited, ITV Studios Limited v TVCatchup Limited, TVCatchup (UK) Limited, Media Resources Limited
   (Case C-275/15) (1)

   ((Reference for a preliminary ruling - Directive 2001/29/EC - Harmonisation of certain aspects of copyright and related rights in the information society - Article 9 - Access to cable of broadcasting services - Concept of ‘cable’ - Retransmission of broadcasts of commercial television broadcasters by a third party via the internet - ‘Live streaming’))
   (2017/C 121/03)
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Appellants: ITV Broadcasting Limited, ITV2 Limited, ITV Digital Channels Limited, Channel Four Television Corporation, 4 Ventures Limited, Channel 5 Broadcasting Limited, ITV Studios Limited

      Respondents: TVCatchup Limited, TVCatchup (UK) Limited, Media Resources Limited

      Interveners: The Secretary of State for Business, Innovation and Skills, Virgin Media Limited

      Operative part of the judgment

   Article 9 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, and specifically the concept of ‘access to cable of broadcasting services’, must be interpreted as not covering, and not permitting, national legislation which provides that copyright is not infringed in the case of the immediate retransmission by cable, including, where relevant, via the internet, in the area of initial broadcast, of works broadcast on television channels subject to public service obligations.

      (1)  OJ C 279, 24.8.2015.


title: Case T-405/08: Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/32

         Action brought on 18 September 2008 — SPAR Österreichische Warenhandel v Commission
   (Case T-405/08)
   (2009/C 6/66)
   Language of the case: German
   Parties

      Applicant: SPAR Österreichische Warenhandels-AG (represented by: A.-H. Bischke, S. Brack und D. Bräunlich, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the defendant's decision of 23 June 2008;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant has brought an action against the decision of the Commission of 23 June 2008 in Case COMP/M.5047 — REWE/ADEG, by which the Commission approved the acquisition by Billa AG, a company in the German REWE Group, of sole control of ADEG Österreich Handelsaktiengesellschaft. The applicant submits that the Commission should not have approved the concentration in accordance with Article 6(2) of the EC Merger Regulation (1), since the undertakings given were not sufficient to remove what the applicant considers to be existing competition concerns.
   In support of its action, the applicant putting forward two pleas in law:
   First, the applicant submits that Article 6(1)(c) of the EC Merger Regulation has been infringed because the Commission erred in law when it failed to open Phase II proceedings and approved the proposed concentration ‘REWE/ADEG’ subject to conditions in Phase I. The Commission failed to sufficiently investigate the effect the proposed concentration would have on competition and therefore also misjudged the serious competition concerns arising in connection with the proposed concentration. In detail, the infringement consists of the following manifest errors of assessment:

               —

               the Commission misjudged the effect of the proposed takeover on competition in the retail market in the whole of Austria, because if wrongly assumed that a number of competitors would remain in place and underestimated ADEG's competitive potential;

               —

               the Commission wrongly determined and wrongly assessed the market position of the parties at regional and local level;

               —

               the undertakings accepted by the Commission are not appropriate for removing the existing competition concerns, since they were assessed on the wrong basis;

               —

               the Commission wrongly determined and wrongly assessed the effect on competition in the labour markets.

         Second, during the merger control proceedings, the Commission infringed essential formal requirements. It infringed the applicant's and the Member States' right to a fair hearing when it failed to market test the last undertaking proposed by the parties and failed to forward it to the Member States. Moreover, the Commission failed to give sufficient reasons for its decision.

      (1)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation) (OJ 2004 L 24, p. 1).


title: JUDGMENT OF THE COURT OF FIRST INSTANCE (Fourth Chamber) of 15 May 1997 in Case T-273/94: N v. Commission of the European Communities (Officials - Duty to act in good faith - Official suspected of conduct inconsistent with the dignity of his office - Official's cooperation in good faith with the investigation - Lacking - Disciplinary proceedings - Removal from post)

text:
12 . 7. 97                EN                  Official Journal of the European Communities                               No C 212/25
was allocated, by Regulation ( EC ) No 390/97, 38 886                              Removal from the register of C-40/95 (')
tonnes, which is 1 139 tonnes less than the quantity                                                 ( 97/C 212/46 )
provided for by the Act of Accession.
                                                                         By order of 3 February 1997 the President of the Court of
( 1 ) Council Regulation (EC ) No 390/97 of 20 December 1996             Justice of the European Communities has ordered the
      fixing, for certain fish stocks and groups of fish stocks, the     removal from the register of Case C-40/95 ( reference for a
      total allowable catches for 1997 and certain conditions under      preliminary ruling from the VAT and Duties Tribunal,
      which they may be fished ( OJ No L 66, 6. 3 . 1997, p. 1 ).        London ): Conoco Ltd v. Commissioners of Customs and
( 2 ) OJNoL 1 , 1 . 1 . 1995 , p . 1 .                                   Excise .
                                                                         (') OJ No C 119, 13 . 5 . 1995 ,
                                                                             OJ No C 31 , 3 . 2 . 1996 .
                                                        COURT OF FIRST INSTANCE
Decisions adopted by the Court of First Instance at its                       the President of the Court of First Instance designates
                 plenary conference on 5 June 1997                            the Judge who will not take part in the judgment of
                             ( 97/C 212/47)                                   the case, will be in the reverse order of precedence of
                                                                              those Judges based, in accordance with Article 6 of the
                                                                              Rules of Procedure, on their seniority in office, save
 1 . Composition of the First Chamber, Extended                               where the Judge thus designated is the Judge
        Composition, of the Second Chamber and of the                         Rapporteur. In the latter case, the Judge immediately
        Second Chamber, Extended Composition —                                senior to him is to be designated .
        Assignment of Judges to Chambers
        In the light of the decision of the Governments of the
        Member States of 29 May 1997 appointing Karl Joerg
        Pirrung a Member of the Court of First Instance
        following the death of Judge Heinrich Kirschner, the
        Court of First Instance decided at its plenary
        conference on 5 June 1997, in accordance with                       JUDGMENT OF THE COURT OF FIRST INSTANCE
        Article 10 of its Rules of Procedure, to modify the                                        (Fourth Chamber)
        composition of its Chambers, as decided on                                                  of 15 May 1997
        12 September 1996 ( OJ No C 294, 5 . 10 . 1996 , p. 10 ).
                                                                          in Case T-273/94: N v. Commission of the European
        For the period from 11 June 1997 to 30 September                                            Communities ( ] )
        1997, Judge Pirrung is assigned to the First Chamber,             (Officials — Duty to act in good faith — Official
        Extended Composition, the Second Chamber and the                  suspected of conduct inconsistent with the dignity of his
        Second Chamber, Extended Composition .                            office — Official's cooperation in good faith with the
                                                                          investigation — Lacking — Disciplinary proceedings —
        In cases where another Judge has been designated by                                       Removal from post)
        the President of the Court of First Instance, pursuant
        to Article 32 ( 3 ) of the Rules of Procedure, to                                              ( 97/C 212/48 )
        complete those Chambers in place of Judge Kirschner
         and the written procedure has been completed and a                               (Language of the case: French)
         hearing in the oral procedure has been held or fixed
         before 11 June 1996 , those Chambers shall continue              In Case T-273/94: N, a former official of the Commission
         to sit with that composition for the purposes of the              of the European Communities, residing in Brussels,
         oral procedure, deliberation and judgment.                        represented by Xavier Magnee, of the Brussels Bar, with
                                                                           an address for service in Luxembourg at the Chambers of
   2 . Plenary session                                                     Louis Schiltz, 2 Rue Fort Rheinsheim v. Commission of
                                                                           the European Communities ( Agents : Gianluigi Valsesia,
         At is plenary conference on 5 June 1997, the Court of             Ana Maria Alves Vieira and Denis Waelbroeck ) —
         First Instance decided, in accordance with the second             application for annulment of the Commission's decision of
         subparagraph of Article 32 ( 1 ) of its Rules of                  4 October 1993 removing the applicant from his post, and
         Procedure, that where, following the designation of an            a claim for damages — the Court of First Instance ( Fourth
         Advocate-General pursuant to Article 17 of the Rules              Chamber ), composed of K. Lenaerts, President, P. Lindh
         of Procedure , there is an even number of Judges of the           and J. D. Cooke, Judges; A. Mair, Administrator, for the
          Court of First Instance sitting in plenary session, the          Registrar, gave a judgment on 15 May 1997, the operative
          rota established in advance, in accordance with which            part of which is as follows:
 ---pagebreak--- No C 212/26            EN                   Official Journal of the European Communities                                     12 . 7 . 97
1 . The application is dismissed as inadmissible.                      Brussels,     represented     by    Jean-Noel  Louis,  Thierry
                                                                       Demaseure and Ariane Tornel, of the Brussels Bar, with an
2 . Each of the parties shall bear its own costs.                      address for service in Luxembourg at the offices of
                                                                       Fiduciaire Myson Sari, 1 Rue de Cessange, v. Council of
(') OJ No C 275 , 1 . 10 . 1994 .                                      the European Union ( Agents : Jean-Paul Jacqué and Denis
                                                                       Waelbroeck ) — application for annulment of the decision
                                                                       of the Secretary-General of the Council of 3 May 1995
                                                                       rejecting the applicant's application for a grade A 1 post
                                                                       in    the  Directorate-General       for Economic  and    Social
                                                                       Cohesion, Regional Policy, Social Policy, Employment,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              Social Dialogue, Education and Youth, Culture, and
                          of 28 May 1997                               Audiovisual Media ( DG J ), and of the decision of the
      in Case T-59/96: Jean-Louis Burban v. European                   Secretary-General of the Council of 7 November 1995
                           Parliament ( 1 )                            rejecting the applicant's complaint — the Court of First
                                                                       Instance ( Fifth Chamber ), composed of: R. García
(Officials — Delay in drawing up staff reports — Action
                                                                       Valdecasas, President, and J. Azizi and M. Jaeger, Judges;
for damages — Admissibility — Maladministration —
                                                                       A. Mair, Administrator, for the Registrar, has given a
                                 Loss)
                                                                       judgment on 29 May 1997, in which it:
                           ( 97/C 212/49
               (Language of the case: French)                          1 . dismisses the application;
In Case T-59/96 : Jean-Louis Burban, an official of the                2 . orders the parties to bear their own costs.
European Parliament, residing in Paris, represented by
Jean-Pierre Spitzer, of the Paris Bar, with an address for             C ) OJ No C 77, 16 . 3 . 1996 .
service in Luxembourg at the Chambers of Aloyse May,
31 Grand-Rue, v. European Parliament ( Agents : Yannis
Pantalis, Francis Herbert and Daniel M. Tomasevic ) —
application for compensation for the material and non
material damage suffered by the applicant as a result of
delay in the drawing up of his staff reports for the periods
1991 — 1992 and        1993— 1994 — the         Court of First            JUDGMENT OF THE COURT OF FIRST INSTANCE
Instance ( Fourth Chamber), composed of: K. Lenaerts,                                            of 3 June 1997
President, and P. Lindh and J. D. Cooke, Judges; J. Palacio
Gonzalez, Administrator, for the Registrar, has given a
                                                                       in Case T- 196/95 : H v. Commission of the European
                                                                                Communities O
judgment on 28 May 1997, in which it:
                                                                        (Officials — Compulsory retirement — Establishment and
 1 . orders the Parliament to pay the applicant damages in              tasks of the Invalidity Committee — Articles 53 and 59
     the sum of Bfrs 200 000;                                           (2) of the Staff Regulations — Notification of the
                                                                                decision)
2 . orders the Parliament to pay all the costs.
                                                                                ( 97/C 212/51
 n OJ No C 180, 22 . 6 . 1996 .
                                                                                (Language of the case: French)
                                                                        In Case T-l 96/95 : H, a former official of the Commission
                                                                        of the European Communities, residing in Brussels,
   JUDGMENT OF THE COURT OF FIRST INSTANCE                              represented initially by Pierre-Paul van Gehuchten and
                                                                       Jacques Sambon and subsequently by Lucette Defalque, of
                          of 29 May 1997                                the Brussels Bar, with an address for service in
 in Case T-6/96: Théistocle Contargyris v. Council of the               Luxembourg at the Chambers of Louis Schiltz, 2 Rue du
                       European Union (')                               Fort Rheinsheim, v. Commission of the European
 (Officials — Rejection of application for a post —                     Communities ( Agent: Ana Maria Alves Vieira ) —
 Article 19 (1) of the Council's rules of procedure —                   application for annulment of the Invalidity Committee 's
 Article 45 of the Staff Regulations — Power of the                     opinion of 13 September 1994, of the Commission's
 Secretary-General of the Council to adopt decisions                    decision of 27 September 1994 compulsorily retiring the
 rejecting an application for a post and a complaint —                  applicant and of the Commission's decision of 27 June
 Notice of vacancy — Manifest error of assessment —                      1995 rejecting the applicant's complaint against the
 Articles 7 and 27 of the Staff Regulations — Obligation to             former decision — the Court of First Instance (Third
     provide a statement of reasons — Misuse of powers)                 Chamber), composed of: B. Vesterdorf, President, C. P.
                                                                        Briët and A. Potocki, Judges; B. Pastor, Principal
                             97/ C 212/50
                                                                        Administrator, for the Registrar, has given a judgment on
                                                                         3 June 1997, in which it:
                (Language of the case: French)
 In Case T-6/96 : Théistocle Contargyris, a former official              1 . dismisses the application as inadmissible in so far as it
  of the Council of the European Union, residing in                           seeks annulment, first, of the decision of 27 June 1995


title: Case C-334/02: Action brought on 20 September 2002 by the Commission of the European Communities against the French Republic

text:
C 261/10               EN                      Official Journal of the European Communities                                     26.10.2002
The Commission claims that the Court should:                              The applicant claims that the Court should:
—     declare that, by failing to adopt all the necessary measures        —     Declare that, by excluding absolutely the application of
      prescribed by Council Regulation No 3508/92 (1) estab-                    the rate of levy in discharge to income arising from the
      lishing an integrated administration and control system                   investments and contracts referred to in Articles 125-0 A
      for certain Community aid schemes, the Hellenic Republic                  and 125 A of the Code général des impôts (General Tax
      has failed to fulfil its obligations under that regulation;               Code), where the debtor is not resident or established in
                                                                                France, the French Republic has failed to fulfil its obli-
                                                                                gations under Articles 49 and 56 EC;
—     order the Hellenic Republic to pay the costs.
                                                                          —     Order the French Republic to pay the costs.
Pleas in law and main arguments
                                                                          Pleas in law and main arguments
Under the regulation at issue, the Member States were obliged             The income referred to in Article 125 A of the Code general
to establish by 1 January 1997 an integrated system including             des impôts (CGI) (income from interest arising from arrears
a computerised data base, an alphanumeric identification                  and from all kinds of State bonds, stocks, participation share
system for agricultural parcels, an alphanumeric system for               certificates, stocks and other certificates of indebtedness,
the identification and registration of animals, standardised              deposits, guarantees and current accounts) and that referred to
processing of aid applications and an integrated control system           in Article 125-0 A of the CGI (income from certificates or
(Article 2).                                                              bond investments and other similar investments), is subject to
                                                                          income tax. None the less, the levy in discharge (which is often
                                                                          attractive because its rate is generally lower than the marginal
                                                                          rate of tax resulting from the application of the progressive
The Greek authorities have not yet established an integrated
                                                                          scale of tax on income and of splitting income) can be applied
system of that kind, and the alternative system which they
                                                                          to it only if the debtor is resident or established in France.
apply for checking areas and requests for payment has
repeatedly been considered inadequate and has been the cause
of corrections in the clearing of accounts.
                                                                          The Commission takes the view that the above constitutes a
                                                                          restriction on the freedom to provide services and on the free
                                                                          movement of capitals contrary to Articles 49 and 56 of the EC
( 1) OJ L 355, 5.12.1992, p. 1.                                           Treaty, in that the more generally favourable levy in discharge
                                                                          is not applied to income collected by French residents from a
                                                                          debtor which is not resident or established in France, even if
                                                                          the person in question is able to provide evidence that it fulfils
                                                                          all the conditions in which the levy in discharge is applied to
                                                                          income obtained from a debtor resident or established in
                                                                          France.
Action brought on 20 September 2002 by the Com-
mission of the European Communities against the French
                               Republic
                                                                          Action brought on 20 September 2002 by the Com-
                          (Case C-334/02)                                 mission of the European Communities against the Grand
                                                                                Duchy of Luxembourg
                          (2002/C 261/16)
                                                                                (Case C-335/02)
                                                                                (2002/C 261/17)
An action against the French Republic was brought before the
Court of Justice of the European Communities on 20 Septem-
ber 2002 by the Commission of the European Communities,
represented by R. Lyal and Ch. Giolito, acting as Agents, with            An action against the Grand Duchy of Luxembourg was
an address for service in Luxembourg.                                     brought before the Court of Justice of the European Communi-


title: Action brought on 7 August 1998 by Aéroports de Paris against Commission of the European Communities (Case T-128/98)

text:
C 312/20              EN                  Official Journal of the European Communities                                     10.10.98
Action brought on 7 August 1998 by AeÂroports de Paris               as the present case manifestly concerns the air transport
     against Commission of the European Communities                  sector and the transport sector as a whole has been
                       (Case T-128/98)                               removed from the scope of Regulation No 17. According
                                                                     to ADP, the misapplication of that Regulation constitutes
                         (98/C 312/47)                               a serious procedural defect vitiating the decision.
                (Language of the case: French)                       Secondly, ADP alleges infringement of the rights of the
                                                                     defence, since the contested decision is wholly at variance
                                                                     with the position expressly stated by the Commission
An action against the Commission of the European                     throughout the administrative procedure.
Communities was brought before the Court of First
Instance of the European Communities on 7 August 1998
by AeÂroports de Paris (ADP), a public corporation whose             Thirdly, ADP submits that the contested decision falls
registered office is in Paris, represented by Hugues Calvet,         seriously short of fulfilling the obligation to state reasons.
of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Aloyse May, 31 Grand-
                                                                     Fourthly, ADP maintains that the Commission misapplied
Rue.
                                                                     the provisions of Article 86 of the EC Treaty: ADP is not
                                                                     an undertaking within the meaning of Article 86; the
The applicant claims that the Court should:                          Commission's definition of the market is seriously
                                                                     inaccurate; ADP does not enjoy a dominant position; its
                                                                     conduct does not meet the conditions laid down in
Ð annul the Commission's decision of 11 June 1998                    Article 86 and no discrimination may properly be
    which states that ADP has infringed Article 86 of the            attributed to it.
    EC Treaty and must put an end to the infringement
    within two months of the date of notification of the
    decision,                                                        Fifthly, ADP argues that the competition rules cannot be
                                                                     applied to it in the present case pursuant to Article 90(2)
                                                                     of the EC Treaty.
Ð order the Commission to pay the whole of the costs
    incurred by the applicant in these proceedings.
                                                                     Lastly, ADP claims that the Commission has infringed
                                                                     Article 222 of the EC Treaty and, by misapplying
Pleas in law and main arguments adduced in support:                  Article 86 of the EC Treaty, has misused its powers.
The applicant is a public corporation with responsibility
for the planning, administration and development of all
the civil air transport installations which are centred in the
Paris region and which seek to facilitate the arrival and
departure of aircraft, to control traffic and to load, unload        Action brought on 12 August 1998 by Groupe Perry SA
and groundhandle passengers, goods and mail carried by               and Isibiris against Commission of the European
air. In 1995 Alpha Flight Services, a company which                                            Communities
supplies airport catering services at Paris-Orly Airport,                                   (Case T-132/98)
lodged a formal complaint against ADP alleging that the
latter was imposing discriminatory fees on the suppliers of                                   (98/C 312/48)
catering services in breach of Article 86 of the EC Treaty.
                                                                                (Language of the case: French)
By the contested decision, the Commission found that
ADP had infringed the provisions of Article 86 of the EC             An action against the Commission of the European
Treaty by using its dominant position as manager of the              Communities was brought before the Court of First
Paris airports to impose discriminatory commercial fees in           Instance of the European Communities on 12 August
the Paris airports of Orly and Roissy-Charles de Gaulle on           1998 by Groupe Perry SA and Isibiris, whose registered
suppliers or users engaged in groundhandling or self-                offices are in Luxembourg, represented by Fernand
handling activities relating to catering (including the              Entringer, of the Luxembourg Bar, with an address for
loading and unloading of food and beverages on aircraft),            service in Luxembourg at his Chambers, 34a Rue Philippe
to the cleaning of aircraft and to the handling of cargo.            II.
Under Article 2 of the decision, ADP is required to put an
end to the infringement by applying to the suppliers of
groundhandling services concerned a non-discriminatory               The applicants claim that the Court of First Instance
scheme of commercial fees within two months of the date              should:
of notification of the contested decision.
                                                                     Ð declare that the Commission acted improperly,
ADP maintains that the contested decision is vitiated by a
procedural defect, on which ground it must be annulled.              Ð declare that that improper conduct gives rise to non-
The application of Regulation No 17 is unlawful in so far                contractual liability on the part of the Union,


title: Case T-182/99: Action brought on 10 August 1999 by Georgios Karavelis against the European Parliament

text:
16.10.1999             EN                     Official Journal of the European Communities                                      C 299/27
Action brought on 14 July 1999 by Michael Rupp against                   — the fact that, having regard to those irregularities, the
       the Commission of the European Communities                            defendant refused to permit inspection of the results of the
                                                                             tests already concluded prevented the applicant from
                          (Case T-169/99)                                    pursuing his legal interests, and consequently constitutes
                                                                             an unlawful obstacle placed in the way of a citizen of the
                                                                             Union.
                         (1999/C 299/38)
                                                                         (1) OJ C 97 A of 31.3.1998.
                   (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 14 July 1999 by Michael Rupp,
residing in Brussels, represented by Silke Wöhlert, Rechtsan-
wältin, of 11B In der Aue, Heidelberg (Germany).
The applicant claims that the Court should:                              Action brought on 10 August 1999 by Georgios Karavelis
                                                                                against the European Parliament
I.   annul the defendant’s decision not to admit the applicant
     to the (competition) test held on 16 July 1999;
                                                                                (Case T-182/99)
II. order that the applicant’s representative be given the
     opportunity to inspect the competition file relating to the                                 (1999/C 299/39)
     applicant, in order to make sure that the test results are
     correct;
III. order the defendant to invite the applicant to take part in                            (Language of the case: Greek)
     the main test held in Brussels on 16 July 1999;
                                                                         An action against the European Parliament was brought before
IV. order the defendant to pay the costs.                                the Court of First Instance on 10 August 1999 by Georgios
                                                                         Caravelis, represented by Professor Haris Tagaras, of the
                                                                         Athens Bar.
Pleas in law and main arguments
                                                                         The applicant claims that the Court of First Instance should:
The applicant, who is currently employed in a temporary
position in Directorate-General IA of the European Com-
mission, took part in open competition No COM/A/10/98 (1),               — hold the application admissible;
which was organised by the Commission. On the strength of
his good results, he was admitted to that competition, in which          — annul the contested acts in so far as the applicant’s name
he was awarded the requisite minimum number of marks.                        is not included on the 1998 list of those to be promoted
However, by letter from the defendant dated 25 June 1999 he                  to Grade A 4 or, in the alternative, order the defendant
was informed that his complaint concerning the decision not                  to pay compensation for non-material damage of BEF
to admit him to the main test in the competition had been                    100 000;
rejected. Only after the applicant had insisted on being given
an answer was he sent a definitive refusal to admit him to the
                                                                         — order the Parliament to pay the costs.
test; this failed to take into account the imminence of the
subsequent test, since he did not receive an answer until 8 July
1999.
                                                                         Pleas in law and main arguments
The applicant claims, as a matter of law, that the competition
procedure was vitiated by manifest defects, which give rise to           The applicant, an official of the European Parliament, chal-
an imperative requirement that he be admitted to the main                lenges the legality of the 1998 procedure for promotion to
test:                                                                    Grade A 4. In his view that procedure was vitiated by the
                                                                         following defects:
— it was only during one of the breaks that a typographical
     error in the Swedish-language part of the test was disco-
     vered. The candidates were given the opportunity of                 1. The Promotions Committee downgraded the staff reports
     re-sitting that test following the conclusion of the entire             of those eligible for promotion, attaching special weight to
     test procedure. It was therefore possible for the candidates            the recommendations of the Directorates-General.
     concerned to obtain the answers to the corresponding
     questions from other candidates during the breaks, before           2. Those recommendations took into account only up to
     sitting the test in question. This seriously-prejudiced the             20 % of those eligible for promotion in each Directorate-
     applicant, and thus constitutes a breach of the principle of            General. The cases of the other officials eligible for
     equal treatment for all candidates;                                     promotion were not examined.
 ---pagebreak--- C 299/28              EN                      Official Journal of the European Communities                                 16.10.1999
3. In evaluating those eligible for promotion, the Promotions            Diekmeier and Others v Council of the European Union and
    Committee did not follow the criteria laid down in the               Commission of the European Communities.
    promotion guidelines, but relied on other criteria. Those
    criteria also contravened the recommendations formulated
                                                                         (1) OJ C 74 of 25.3.1995 and C 159 of 24.6.1995.
    by the Directorate-General to which the applicant belongs.
Partial removal from the register in Joined Cases T-85/93                        Removal from the register of Case T-2/98 (1)
                         and Others (1)
                                                                                (1999/C 299/42)
                        (1999/C 299/40)
                                                                                (Language of the case: Dutch)
                  (Language of the cases: German)
                                                                         By order of 1 February 1999 the President of the Second
                                                                         Chamber of the Court of First Instance of the European
By order of 21 May 1999, the President of the Fourth Chamber,
                                                                         Communities has ordered the removal from the register of
Extended Composition, of the Court of First Instance of the
                                                                         Case T-2/98: Petra Van Eynde-Neutens v Commission of the
European Communities has ordered the removal of Case
T-252/94 from the list of cases in Joined Cases T-85/93 and              European Communities.
Others: Helmut Bösl v Council of the European Union and
Commission of the European Communities.                                  (1) OJ C 55 of 20.2.1998.
(1) OJ C 275 of 1.10.1994.
                                                                                Removal from the register of Case T-168/98 (1)
Partial removal from the register in Joined Cases T-366/94                                       (1999/C 299/43)
                         and Others (1)
                                                                                (Language of the case: French)
                        (1999/C 299/41)
                                                                         By order of 11 February 1999 the President of the First
                  (Language of the cases: German)                        Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
                                                                         Case T-168/98: Anastasios Bisopoulos v Commission of the
By order of 21 May 1999, the President of the Fourth Chamber
                                                                         European Communities.
of the Court of First Instance of the European Communities
has ordered the removal of Cases T-16/95 and T-100/95 from
the list of cases in Joined Cases T-366/94 and Others: Hilde             (1) OJ C 397 of 19.12.1998.


title: Case C-53/04: Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Cristiano Marrosu, Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate (Directive 1999/70/EC — Clauses 1(b) and 5 of the framework agreement on fixed-term work — Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts — Possible derogation in respect of employment contracts in the public sector)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/1

         Judgment of the Court (Second Chamber) of 7 September 2006 (reference for a preliminary ruling from the Tribunale di Genova — Italy) — Cristiano Marrosu, Gianluca Sardino v Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate
   (Case C-53/04) (1)

   (Directive 1999/70/EC - Clauses 1(b) and 5 of the framework agreement on fixed-term work - Establishment of employment relationships of indefinite duration resulting from infringement of the rules governing successive fixed-term contracts - Possible derogation in respect of employment contracts in the public sector)
   (2006/C 281/01)
   Language of the case: Italian
   Referring court
   Tribunale di Genova
   Parties to the main proceedings

      Applicants: Cristiano Marrosu, Gianluca Sardino

      Defendant: Azienda Ospedaliera Ospedale San Martino di Genova e Cliniche Universitarie Convenzionate
   Re:
   Preliminary ruling — Tribunale di Genova — Interpretation of Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP (OJ 1999 L 175, p. 43) — Establishment of an employment relationship of indefinite duration in the case where the rules governing successive fixed-term contracts have been infringed — Possibility of derogation in the case of employment contracts signed with public authorities
   Operative part of the judgment
   The framework agreement on fixed-term work concluded on 18 March 1999, which is annexed to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP, must be interpreted as not in principle precluding national legislation which, where there is abuse arising from the use of successive fixed-term employment contracts or relationships by a public-sector employer, precludes their being converted into contracts of indeterminate duration, even though such conversion is provided for in respect of employment contracts and relationships with a private-sector employer, where that legislation includes another effective measure to prevent and, where relevant, punish the abuse of successive fixed-term contracts by a public-sector employer.

      (1)  OJ C 85, 3.4.2004.


title: Case T-321/03: Action brought on 8 September 2003 by Juckem GmbH and Others against European Parliament and Council of the European Union

text:
C 275/50                 EN                          Official Journal of the European Union                                       15.11.2003
Pleas in law and main arguments                                              The applicant claims that the Court should:
                                                                             —     annul the Decision of the Third Board of Appeal of the
The applicant received a grant from the Commission in 1996                         Office for Harmonisation in the Internal Market (Trade
within the framework of a project to create a joint venture                        Marks and Designs) of 25 June 2003 (Case R 85/2002-
with a Polish undertaking. The request for a grant was based                       3);
on application of a regional development plan entitled ‘Joint
Venture PHARE TACIS Program’. Following an investigation                     —     order that the costs of the proceedings be borne by the
carried out in 2002 at the applicant’s premises and an                             Office.
exchange of correspondence between the applicant and the
Commission, the latter, by a missive of 8 July 2003, instructed
the bank acting as financial intermediary for the development
plan to effect full recovery of the funds paid to the applicant.             Pleas in law and main arguments
It is this notification which constitutes the decision under
challenge by the applicant.                                                  Trade mark concerned:        ‘LIVE RICHLY’ (word) — Appli-
                                                                                cation No. 2112647.
In support of its action, the applicant first invokes an alleged
breach of the provisions of Regulation No 1 (1) inasmuch as                  Products or services:        ‘Financial and monetary services
the contested decision was drafted in English and not in                                                  and real estate affairs; in particu-
French, even though it was addressed to the applicant, which                                              lar: banking; credit card; commer-
is a French company. The applicant also pleads an alleged                                                 cial and consumer lending and
failure to comply with the four-year limitation period laid                                               financing; real estate and mort-
down in Article 3 of Council Regulation No 2988/95 (2). The                                               gage brokerage; trust, estate and
applicant further submits that the contested decision, which                                              fiduciary management, planning
was not signed by the competent Commissioner but by a Head                                                and consulting; investment and
of Unit and an administrator, infringes the principle of                                                  investment advisory and con-
collegiate responsibility and originates from an authority                                                sulting; securities brokerage and
lacking competence.                                                                                trading services facilitating secure
                                                                                financial transactions, insurance
                                                                                services; in particular, underwrit-
The applicant contends further that the contested decision is                                             ing and sales of property, casualty
vitiated by a substantive inaccuracy as to the facts, lacks any                                           and life insurance policies and
legal basis, fails to satisfy the obligation to state reasons, and                                        annuity contracts’ (Class 36)
infringes the principles of proportionality and audi alteram
partem and the right to due process.                                         Challenged       Decision    Refusal of registration by the
                                                                             before the Board of          examiner
                                                                             Appeal:
(1) Regulation No 1 of the Council determining the languages to be
    used by the European Economic Community (OJ English Special              Pleas in law:                Violation of Articles 7(1)(b) and
    Edition 1952-1958, p. 59).                                                                            73, first and second sentences, of
(2) Council Regulation (EC, Euratom) No 2988/95 of 18 December
                                                                                Regulation (EC) No 40/94.
    1995 on the protection of the European Communities’ financial
    interests (OJ L 312 of 23.12.1995, pp. 1 to 4).
                                                                             Action brought on 8 September 2003 by Juckem GmbH
Action brought on 15 September 2003 by Citicorp against                      and Others against European Parliament and Council of
    the Office for Harmonisation in the Internal Market                                           the European Union
                          (Case T-320/03)                                                            (Case T-321/03)
                          (2003/C 275/84)                                                            (2003/C 275/85)
                     (Language of the case: English)                                           (Language of the case: French)
An action against the Office for Harmonisation in the Internal               An action against the European Parliament and the Council of
Market was brought before the Court of First Instance of the                 the European Union was brought before the Court of First
European Communities on 15 September 2003 by Citicorp,                       Instance on 8 September 2003 by Juckem GmbH and 244
New York (USA), represented by Dr V. von Bomhard,                            other companies, represented by D. Waalbroeck and N. Ram-
Dr A. Pohlmann and Dr. A. Renck, lawyers.                                    pal, avocats.
 ---pagebreak--- 15.11.2003              EN                      Official Journal of the European Union                                           C 275/51
The applicants claim that the Court should:                             —     violates the principle of proportionality;
—     declare that the Community has, through the European              —     treats the applicants unequally in comparison with traders
      Parliament and the Council, incurred non-contractual                    active in the sphere of foodstuffs for human beings;
      liability, and order the defendants to make good all loss
      suffered by the applicants on account of the directive in         —     was adopted on the wrong legal basis. The directive at
      question;                                                               issue ought to have been based on Article 37 of the EC
                                                                              Treaty and not on Article 152(4)(b) of the EC Treaty,
—     declare that interest at the annual rate of 8 % (or at an               since it has nothing to do with the veterinary and
      appropriate rate to be fixed by the Court) is payable from              phytosanitary field.
      the date of the Court’s decision finding the Community
      liable until the time of payment;
                                                                        (1) OJ L 63 of 6 June 2002, p. 23.
—     order the defendants to pay the costs.
Pleas in law and main arguments
                                                                        Action brought on 12 September 2003 by La Baronia de
This application claims compensation for the damage suppos-             Turis against the Office for Harmonisation in the Internal
edly caused by Directive 2002/2/EC of the European Parlia-                        Market (Trade Marks and Designs) (OHIM)
ment and of the Council of 28 January 2002 amending
Council Directive 79/373/EEC on the circulation of compound
feedingstuffs and repealing Commission Directive 91/357/                                         (Case T-323/03)
EEC (1).
                                                                                (2003/C 275/86)
The abovementioned directive introduces a requirement that
manufacturers of compound feedingstuffs should indicate on                                 (Language of the case: Spanish)
their labels the precise quantities (in percentages) of all
feed materials included in each feedingstuff. By so doing it
establishes quite new labelling rules for compound feeding-
stuffs which, according to the applicants, will result in the           An action against the Office for Harmonisation in the Internal
compulsory divulgence of the know-how and fundamental                   Market (Trade Marks and Designs) (OHIM) was brought before
commercial secrets of the compound feedingstuff manufac-                the Court of First Instance of the European Communities on
turers. The introduction of those rules will enable the com-            12 September 2003 by La Baronia de Turis, Cooperativa
pound feedingstuff manufacturers’ customers to know not                 Valenciana, established in Turis, Valencia (Spain), represented
only the formula but also the exact cost of the feed materials,         by Juan José Carreño Moreno, lawyer.
so that the applicants will, they argue, lose their greatest
vehicle of competition and their very existence could be
jeopardised.                                                            The applicant claims that the Court should:
                                                                        —     annul the decision of the Second Board of Appeal of the
In support of their claims the applicants maintain that the                   Office for Harmonisation in the Internal Market (Trade
contested directive:                                                          Marks and Designs) (OHIM) of 9 July 2003 in Case R 57/
                                                                              2003-2;
—     infringes their know-how and commercial secrets which
      are protected in the Community legal order;                       —     order that registration be refused in respect of Community
                                                                              trade mark No 2 057 487 ‘LA BARONNIE’, owned by
—     fails to have regard to protection of undistorted compe-                the undertaking Baron Philippe de Rothschild SA, to
      tition, to reinforcement of the competitiveness of the                  designate products within Class 33 of the Nice Classifi-
      Community industry and encouragement of technologi-                     cation.
      cal R. & D.;
—     infringes the right to property and the right to carry on
      economic activity freely;                                         Pleas in law and main arguments
—     militates against improvement of agricultural products            Applicant for Com-             Baron Philippe de Rothschild SA.
      and protection of the environment;                                munity trade mark: