title: Action brought on 11 June 1997 by Odette Simon against the Commission of the European Communities (Case T-177/97)

text:
No C 252/34          EN                   Official Journal of the European Communities                                      16 . 8 . 97
Action brought on 11 June 1997 by Alan Hick against                  grade, to the President's cabinet for the duration of the
              Economic and Social Committee                          President's mandate . The candidate selected never in fact
                        Case T-176/97)                               took up the post of Head of the division in question, the
                                                                     applicant having performed those duties, first as deputy
                        ( 97/C 252/74 )                              and then as acting Head.
               (Language of the case: French)                        In the circumstances of the case, the applicant refers to the
                                                                     case-law following from the Court's judgment in Case
An action against the Economic and Social Committee of               T-272/94 Brulant ( ] ).
the European Communities was brought before the Court
of First Instance of the European Communities on 11 June             (') Case T-272/94 Brûlant v. European Parliament [ 1996 ] ECR-SC
1997 by Alan Hick, residing in Brussels, represented by                  II-1397 .
Jean-Noel Louis, Thierry Demaseure and Ariane Tornel of
the Brussels Bar, with an address for service in
Luxembourg at the office of Fiduciaire Myson Sari, 30
Rue de Cessange .
The applicant claims that the Court should:                          Action brought on 11 June 1997 by Odette Simon against
                                                                             the Commission of the European Communities
— annul the decision to promote Wolfgang Junck to                                            ( Case T-l 77/97 )
    Grade A 3 and appoint him to the post of Head of the                                       ( 97/C 252/75 )
    Division for Social, Family, Educational and Cultural
    Affairs in Directorate B — Consultative Work,
                                                                                (Language of the case: French)
— annul the decision rejecting the applicant's candidature
    for that post,                                                   An action against the Commission of the European
                                                                     Communities was brought before the Court of First
                                                                     Instance of the European Communities on 11 June 1997
— order the defendant to pay the costs.
                                                                     by Odette Simon, residing in Luxembourg, represented
                                                                     by Ariane Tornel, Thierry Demaseure and Fran^oise
Pleas in law and main arguments adduced in support:                  Parmentier, of the Brussels Bar, with an address for service
                                                                     in Luxembourg at the office of Fiduciaire Myson Sari, 30
                                                                     Rue de Cess&nge.
The applicant, a Grade A 4 official of the Economic and
Social Committee, challenges the appointing authority's
refusal to appoint him to the post of Head of one of the             The applicant claims that the Court should:
defendant's divisions .
                                                                     — annul the decision refusing to regularize the
The applicant points out that he has been acting as Head                  applicant's administrative position as from May 1966,
of the Division in question since April 1996, following the
death of the previous Head, and that on 18 June 1996 the
defendant published the disputed vacancy notice. By the              — order the defendant to pay ECU 1 by way of symbolic
contested decision, the appointing authority appointed to                 compensation for the non-material damage suffered,
the post in question another person who never took up
the post. That person was subsequently seconded to the               — order the defendant to pay the costs.
'Directorate-General for Consultative Work, Specialized
Department for Delegations' and seconded in the interest
of the service to the post of Chef de Cabinet in the                 Pleas in law and main arguments adduced in support:
Secretariat of the President of the Economic and Social
Committee. Finally, by decision of 23 December 1996, the
applicant was called upon to carry out as acting Head the            The applicant states that she entered the Commission's
duties attaching to the post in issue in this case .                 service in May 1966 . There she remained without
                                                                     interruption until 25 October 1995 . She points out that,
                                                                     although most of her contracts were concluded through
In support of his claims the applicant alleges breach of             the device of intermediary companies and 'organes de
Article 4, first paragraph, and Article 27 of the Staff              tutelle', she always performed her duties for the
Regulations, and misuse of powers. In particular, he                 Commission and under the direct authority of its officials,
considers that the purpose of the contested decision was             in accordance with detailed rules laid down by the
neither to fill the vacant post nor to secure for the                Commission . Her work contributed to the attainment of
institution the services of an official of the highest               the objectives for which the ECSC Treaty made the
standard of ability, efficiency and integrity. In his view, the      Commission responsible and was equivalent to a budgeted
decision was intended to promote another person to                   post. The duties entrusted to her were permanent defined
Grade A 3 with the sole aim of seconding him, at his new             duties of Community public service.
 ---pagebreak--- 16 . 8 . 97          EN                   Official Journal of the European Communities                              No C 252/35
First, the applicant alleges misuse of powers and abuse of           He pleads infringement of Article 23 of the Rules of
process, because the series of employment contracts or of            Procedure of the Commission of 17 February 1993 , since
contracts for the supply of services concluded with a series         he was automatically entitled and required to deputize for
of companies is unlawful, inasmuch as the contractual                his hierarchical superior during the latter's absences, in
terms were defined, not according to the needs of the                particular on 16 and 20 August 1996 . According to the
service, but with the sole aim of evading the application of         applicant, the contested decision was therefore adopted
the provisions of the Staff Regulations or other rules.              wilfully and in disregard of the steps taken by the
Those contracts must be regarded as concluded with an                applicant to ensure that his rights were respected.
agent covered by the Staff Regulations and/or the                    Moreover, such conduct represents a flagrant breach of
Conditions of Employment of Other Servants.                          the Commission's duty to have regard for his interests as
                                                                     one of its officials .
The second plea alleges breach of the duty to have regard
for the welfare and interests of officials, the duty to              His second plea alleges infringement of Article 25 of the
provide assistance and breach of the principle of                    Staff Regulation, on the ground that the Commission
protection of legitimate expectations, and also                      failed to provide a reasoned statement informing the
infringement of Article 3 of the European Convention on              applicant of the factors on the basis of which the merits of
                                                                     the contested decision could be assessed .
Human Rights, inasmuch as the Commission failed to
take action when the applicant requested its help .
                                                                     As regards the claim for compensation, the applicant
                                                                     maintains that he has suffered non-material damage, since
Last, the applicant assesses her non-material damage                 for nearly two years he has been in a state of uncertainty
caused by those infringements and failures at the symbolic           as to the future of his career.
sum of ECU 1 .
                                                                     Action brought on 17 June 1997 by Huguette Meyer and
Action brought on 11 June 1997 by Albano Moncada                     others against the Court of Justice of the European
                                                                                Communities
   against the Commission of the European Communities
                                                                                ( Case T-181/97)
                       ( Case T-l 78/97 )
                                                                                ( 97/C 252/77 )
                         ( 97/C 252/76 )
                                                                                (Language of the case: French)
                (Language of the case: French)
                                                                     An action against the Court of Justice of the European
An action against the Commission of the European                     Communities was brought before the Court of First
Communities was brought before the Court of First                    Instance of the European Communities on 17 June 1997
Instance of the European Communities on 11 June 1997                 by Huguette Meyer, residing at Mamer ( Luxembourg ),
by Albano Moncada, residing in Luxembourg, represented               Ines Bruno, residing in Luxembourg, Alba Muller di
by Jean-Noel Louis, Thierry Demaseure and Ariane                     Leonardo, residing at Mersch ( Luxembourg), Maria da
Tornel, of the Brussels Bar, with an address for service in          Paz Gomes, residing in Luxembourg, and Leonor Araujo,
Luxembourg at the offices of Fiduciaire Myson Sari, 30               residing at Strassen ( Luxembourg ), represented by Jean
Rue de Cessange.                                                     Noel Louis, Ariane Tornel and Fran?oise Parmentier, of
                                                                     the Brussels Bar, with an address for service in
                                                                     Luxembourg at the offices of Fiduciaire Myson Sari , 30
The applicant claims that the Court should:                          Rue de Cessange .
— annul the decision of 12 August 1996 directing a                   The applicants claim that the Court should:
     colleague of the applicant to deputize for his
     hierarchical superior during the latter's absences on 16        — annul the decisions expressly rejecting their requests
     and 20 August 1996,                                                  for reimbursement of the sums wrongly deducted in
                                                                          respect of household grants,
— order the Commission to pay to the applicant the                   — order the defendant to reimburse to them all sums
     token sum of ECU 1 ,                                                 wrongly deducted and to pay interest thereon at the
                                                                          rate of 8 % per annum from the date when each
— order the Commission to pay the costs .                                 deduction was made until the date of reimbursement,
                                                                     — order the defendant to pay the costs.
 Pleas in law and main arguments adduced in support:
                                                                      Pleas in law and main arguments adduced in support:
 The applicant, a grade A 4 official, contests the decision
 of his Head of Unit directing a colleague of the applicant           The applicants, whose spouses work in the Luxembourg
 to deputize for the Head of Division E-3 during the                  banking sector, state that up until June 1996 the defendant
 latter's absences on 16 and 20 August 1996 .                         deducted, pursuant to Article 67 ( 2 ) of the Staff


C 55/22              EN                Official Journal of the European Communities                                 20.2.98
survivor's pensions for workers provides as follows: A                 Removal from the register of Case C-169/97 (1)
worker who was employed as a worker during the period                                      (98/C 55/43)
between 1 January 1938 and 1 January 1945 and in
respect of whom a contribution was paid of an amount              By order of 18 September 1997 the President of the Court
equivalent to the annual amount referred to in                    of Justice of the European Communities has ordered the
paragraph 2, is deemed to have paid sufficient                    removal from the register of Case C-169/97: Commission
contributions to establish that he was normally and               of the European Communities v. Portuguese Republic.
principally employed during the entire period comprised
between the date on which the period of employment                (1) OJ C 199, 28.6.1997.
established came to an end and 1 January 1946.'
Article 32b(6) of the aforesaid Royal Decree of
21 December 1967 provides as follows: The presumption
laid down in the two aforesaid paragraphs is rebuttable
only in respect of periods for which the person concerned               Removal from the register of Case C-193/96 (1)
can claim a pension under another Belgian scheme, with                                     (98/C 55/44)
the exception of the scheme for self-employed workers, or
under the scheme of a foreign country.'                           By order of 25 September 1997 the President of the Sixth
                                                                  Chamber of the Court of Justice of the European
Is a provision such as Article 32b(6) of the Royal Decree         Communities has ordered the removal from the register of
of 21 December 1967 a provision on reduction,                     Case C-193/96 (reference for a preliminary ruling from
suspension or withdrawal laid down by the legislation of a        the Verwaltungsgericht Köln): Richard Buchen GmbH v.
Member State, as referred to in Article 46b(2) of                 Bezirksregierung Köln.
Regulation (EEC) No 1408/71, which does not apply to a
benefit calculated in accordance with Article 46(1)(a)(i)?        (1) OJ C 210, 20.7.1996.
      Removal from the register of Case C-322/96 (1)                    Removal from the register of Case C-205/97 (1)
                         (98/C 55/42)                                                      (98/C 55/45)
By order of 12 September 1997 the President of the Court          By order of 5 December 1997, the President of the Court
of Justice of the European Communities has ordered the            of Justice of the European Communities ordered the
removal from the register of Case C-322/96 (reference for         removal from the register of Case C-205/97 (reference for
a preliminary ruling from the Supremo Tribunal                    a preliminary ruling from the Supremo Tribunal
Administrativo): ICT Ð InduÂstria e ComeÂrcio TeÃxtil SA v.       Administrativo (Supreme Administrative Court)): Fazenda
Fazenda PuÂblica.                                                 PuÂblica v. AssociacËaÄo Nacional de Transportes PuÂblicos
                                                                  RodoviaÂrios de Mercadorias (Antram) in the presence of
(1) OJ C 336, 9.11.1996.                                          MinisteÂrio PuÂblico.
                                                                  (1) OJ C 252, 16.8.1997.


title: Case C-277/99: Reference for a preliminary ruling from the Verwaltungsgerichtshof by order of that court of 29 June 1999 in the case of Doris Kaske v Landesgeschäftsstelle des Arbeitsmarktservice Wien

text:
C 281/8                 EN                    Official Journal of the European Communities                                     2.10.1999
Reference for a preliminary ruling from the Verwaltungs-                     meaning of Article 67(3) of Regulation No 1408/71), but
gerichtshof by order of that court of 29 June 1999 in                        makes its application dependent — apart from the case of
the case of Doris Kaske v Landesgeschäftsstelle des                          reuniting a family — on 15 years’ residence in that State
                    Arbeitsmarktservice Wien                                 before the acquisition of the periods of insurance in the
                                                                             other Member State?
                          (Case C-277/99)                                (1) OJ, English Special Edition 1971 (II), p. 416.
                          (1999/C 281/15)
Reference has been made to the Court of Justice of the
European Communities by an order of the Verwaltungsge-                   Appeal brought on 28 July 1999 by Moccia Irme SpA
richtshof (Administrative Court) of 29 June 1999, which                  against the judgment delivered on 12 May 1999 by the
was received at the Court Registry on 26 July 1999, for a                Third Chamber, extended composition, of the Court of
preliminary ruling in the case of Doris Kaske v Landesgeschäfts-         First Instance of the European Communities in Joined
stelle des Arbeitsmarktservice Wien on the following questions:          Cases T-164/96, T-165/96, T-166/96, T-167/96, T-122/97
                                                                         and T-130/97, brought by Moccia Irme SpA, Prolafer Srl,
                                                                         Ferriera Acciaieria Casilina SpA, Dora Ferriera Acciaieria
1. Does the Court of Justice’s ‘Rönfeldt judgment’ [Case                 Srl, Ferriera Lamifer SpA and Nuova Sidercamuna SpA,
     C-227/89] apply also to a case in which a migrant worker                against Commission of the European Communities
     has made use of ‘freedom of movement’ (or more precisely,
     has anticipated it) before the entry into force of Regulation                                (Case C-280/99 P)
     (EEC) No 1408/71 (1), but also before the EC Treaty came
     into effect in her home State, that is, at a time when she
     could not yet rely on Article 39 et seq. EC (formerly                                         (1999/C 281/16)
     Article 48 et seq.) in the State of employment?
                                                                         An appeal against the judgment delivered on 12 May 1999 by
                                                                         the Third Chamber, extended composition, of the Court of
2. If the answer to Question 1 is affirmative:                           First Instance of the European Communities in Joined Cases
                                                                         T-164/96, T-165/96, T-166/96, T-167/96, T-122/97 and
                                                                         T-130/97, brought by Moccia Irme SpA, Prolafer Srl, Ferriera
     Does application of the Rönfeldt judgment to the insured            Acciaieria Casilina SpA, Dora Ferriera Acciaieria Srl, Ferriera
     risk of unemployment mean that a migrant worker may                 Lamifer SpA and Nuova Sidercamuna SpA, against the Com-
     rely on a legal position more favourable than Regulation            mission of the European Communities was brought before the
     No 1408/71 which derives from a bilateral convention                Court of Justice of the European Communities on 28 July
     between two Member States of the European Union (in this            1999 by Moccia Irme SpA, having its registered office in
     case, the Austro-German Convention on unemployment                  Naples (Italy), represented by Emilio Cappelli, Paolo De Caterini
     insurance) for the further duration of each period of               and Andrea Bandini of the Rome Bar, with an address for
     exercise of freedom of movement within the meaning of               service in Luxembourg at the Chambers of Charles Turk, 13B
     Article 39 et seq. EC (formerly Article 48 et seq.), and thus       avenue Guillaume, L-1651 Luxembourg.
     in particular also for claims which are raised after the
     return from the State of employment to the home State?              The appellant claims that the Court should:
                                                                         — set aside the judgment of the Third Chamber, extended
3. If the answer to Question 2 is affirmative: Must such claims              composition, of the Court of First Instance of the European
     be assessed in accordance with the (more favourable)                    Communities of 12 May 1999 in so far as it concerns the
     convention only in so far as they are based on periods of               appellant, Moccia Irme SpA (Case T-164/96);
     insurance under compulsory unemployment insurance
     which were acquired before the entry into force of                  — give judgment for the appellant in the terms sought by it
     Regulation No 1408/71 in the State of employment (in                    at first instance.
     this case, 1 January 1994)?
                                                                         Pleas in law and main arguments
4. If the answer to either of Questions 1 and 2 is negative or           (1) Breach and misapplication of Article 4(c) of the ECSC
     if the answer to Question 3 is affirmative:                             Treaty — Insufficient and contradictory grounds — Misuse
                                                                             of powers.
     Is it permissible from the point of view of the prohibition         (2) Breach and misapplication of Article 4(2), second indent,
     of discrimination under Article 39 EC (formerly Article 42)             of the Fifth Aid Code — No grounds stated — Misuse of
     in conjunction with Article 3(1) of Regulation No 1408/71               powers.
     if a Member State provides in its legal system, for the
     taking into account of periods of insurance completed in            (3) Breach of the principle of non-discrimination.
     another Member State, a more favourable provision that
     Regulation No 1408/71 (in this case, waiver of the require-
     ment of immediately preceding insurance within the


title: Case C-538/03: Action brought on 22 December 2003 by the Commission of the European Communities against the Federal Republic of Germany

text:
20.3.2004              EN                         Official Journal of the European Union                                           C 71/7
Pleas in law and main arguments                                           f)   infringement and failure to comply with the ‘practice for
                                                                               aid to farms in difficulty’ and with the ‘Community
—     The dispute concerns not the classification of the Saronic               guidelines on State aid for rescuing and restructuring
      Gulf as a sensitive area but the lack of a system subjecting             firms in difficulty’;
      urban waste water from the wider Athens area to
      treatment more stringent than secondary treatment                   g)   breach of the principle of legitimate expectations.
      before its discharge into a sensitive area.
                                                                          (1) OJ L 248 of 11.9.1997, p. 27.
—     It is an unquestionable fact that on expiry of the period           (2) OJ L 93 of 30.3.1985, p. 1.
      prescribed by the Commission in its reasoned opinion,
      but also up to the time when the present action was
      brought, urban waste water from the Psitallia plant did
      not receive treatment more stringent than secondary
      treatment.
                                                                          Action brought on 22 December 2003 by the Commission
(1) OJ L 135 of 30.5.1991, p. 40.                                         of the European Communities against the Federal Repub-
                                                                                lic of Germany
                                                                                (Case C-538/03)
                                                                                (2004/C 71/11)
Reference for a preliminary ruling made by order of the
Tribunale di Cagliari of 20 October 2003 in the case                      An action against the Federal Republic of Germany was
between Marco Antonio Scalas and Renato Lilliu and the                    brought before the Court of Justice of the European Communi-
              Regione Autonoma della Sardegna                             ties on 22 December 2003 by the Commission of the
                                                                          European Communities, represented by Nicola Yerrell, of the
                         (Case C-529/03)                                  Commission’s Legal Service, and Horstpeter Kreppel, a labour
                                                                          court judge appointed to the Commission’s Legal Service under
                                                                          the exchange programme for national public servants, acting
                          (2004/C 71/10)                                  as Agents, with an address for service in Luxembourg.
                                                                          The applicant claims that the Court should:
A reference for a preliminary ruling was made to the Court of             1.   Declare that the Federal Republic of Germany has
Justice of the European Communities by order of the Tribunale                  infringed the principle of equal treatment for men and
di Cagliari on 20 October 2003 in proceedings between Marco                    women laid down under Articles 1, 2 and 5 of Council
Antonio Scalas and Renato Lilliu and the Regione Autonoma                      Directive 76/207/EEC (1), and Clause 4 of the Framework
della Sardegna which was lodged at the Court Registry on                       Agreement on part-time work concluded between UNICE,
19 December 2003. The Tribunale di Cagliari seeks a ruling                     CEEP and the ETUC set out in the Annex to Council
on the validity of Commission Decision No 97/612 (1), having                   Directive 97/81/EC (2), in that it indirectly discriminates
regard to the following defects:                                               against women, who form the great majority of part-time
                                                                               employees working less than 18 hours a week in the
a)    lack of competence on the part of the Commission to                      German public sector,
      adopt the contested decision in infringement of the
      combined provisions of Articles 32, 33, 34, 35, 36, 37                   by excluding,
      and 38 EC;
                                                                               (a)   under Paragraph 14(2) of the Bundespersonalvertre-
b)    infringement of the provisions governing the procedure                         tungsgesetz (Federal Law on staff committees in
      provided for under Article 88(1) EC;                                           the public sector) and the equivalent regulations
                                                                                applying in the Länder of
c)    infringement of the provisions governing the procedure
                                                                                —     Bavaria
      provided for under Article 88(2) and (3) EC;
                                                                                —     Berlin
d)    failure to state reasons for the decision in application of
      the combined provisions of Articles 253, 88(3) and 87(1)                       —     Bremen
      EC;
                                                                                —     Hesse,
e)    infringement and erroneous application of Council Regu-
      lation No 797/85 (2) on improving the efficiency of                            part-time employees who normally work less than
      agricultural structures;                                                       18 hours a week, and
 ---pagebreak--- C 71/8                 EN                           Official Journal of the European Union                                      20.3.2004
      (b) in the Länder of                                                  treated in a less favourable manner than full-time workers
                                                                            unless such different treatment is justified on objective
                                                                            grounds.
            —     Mecklenburg-Western Pomerania
            —     Saxony                                                    However, there are no objective grounds for the exclusion
                                                                            from eligibility for election. The restricted presence of the
            —     Schleswig-Holstein                                        relevant employees in the workplace could be compensated
                                                                            for by the creation of flexible working time arrangements and
                                                                            modern means of communication. The Betriebsverfassungsge-
            —     Thuringia,                                                setz (Law on labour relations at the workplace), which governs
                                                                            elections to works councils in the private sector, does not
            part-time employees who work less than half of the              restrict eligibility for election in the same way. Such works
            normal weekly hours of work,                                    councils perform the same functions as staff committees in
                                                                            the public sector. Representation of the excluded groups is
                                                                            necessary because they have separate interests, which other-
      (c)   in the Länder of                                                wise would not be taken into account.
            —     Baden-Württemberg
                                                                            (1) OJ 1976 L 39, p. 40.
                                                                            (2) OJ 1998 L 14, p. 9.
            —     Brandenburg
            —     Rhineland-Palatinate
            —     Saxony-Anhalt,
            part-time employees who work less than one-third                Appeal brought on 29 December 2003 by General Motors
            of the normal weekly hours of work,                             Nederland BV and Opel Nederland BV against the judg-
                                                                            ment delivered on 21 October 2003 by the Second
      (d) in North Rhine-Westphalia,                                        Chamber of the Court of First Instance of the European
                                                                            Communities in case T-368/00 (1) between General
            part-time employees who less than 2/5 of the                    Motors Nederland BV and Opel Nederland BV and the
            normal weekly hours of work,                                             Commission of the European Communities
      (e)   in Lower Saxony,                                                                        (Case C-551/03 P)
            part-time employees who, for a period of up to two                                        (2004/C 71/12)
            months in the course of a year, are employed for
            less than 15 hours a week,
            from eligibility for election to staff committees.              An appeal against the judgment delivered on 21 October 2003
                                                                            by the Second Chamber of the Court of First Instance of the
                                                                            European Communities in case T-368/00 between General
2.    Order the Federal Republic of Germany to pay the costs.               Motors Nederland BV and Opel Nederland BV and the
                                                                            Commission of the European Communities, was brought
                                                                            before the Court of Justice of the European Communities on
                                                                            29 December 2003 by General Motors Nederland BV and Opel
                                                                            Nederland BV, both established in Sliedrecht (Netherlands),
Pleas in law and main arguments                                             represented by D. Vandermeersch, R. Snelders and T. Graf,
                                                                            lawyers, with an address for service in Luxembourg.
The exclusion from eligibility for election to staff committees,
for public sector workers employed by the Federal Republic                  The Appellants claim that the Court should:
and almost all Länder, of part-time employees who normally
work less than 18 hours a week (the number of hours is                      1.    annul the judgment of the Second Chamber of the Court
somewhat less in certain Länder) constitutes indirect discrimi-                   of First Instance of 21 October 2003 in case T-368/00,
nation against women, as they form the great majority of part-                    General Motors and Opel Nederland vs. Commission of
time workers. This is accordingly in breach of Directive 76/                      the European Communities, in so far as it relates to Opel
207/EEC. The rules are also incompatible with Directive 97/                       Nederland’s alleged export strategy and bonus policy and
81/EC, which provides that part-time workers may not be                           confirms a fine in that regard;


title: Removal from the register of C-282/94

text:
No C 199/ 18              EN                   Official Journal of the European Communities                                   28 . 6 . 97
Pleas in law and main arguments adduced in support:                                 Removal from the register of C-282/94 ( ')
                                                                                ( 97/C 199/35 )
The mandatory nature of the provisions of the third
paragraph of Article 189 and the first paragraph of                       By order of 17 April 1997, the President of the Court of
Article 5 of the EC Treaty requires Member States to                      Justice of the European Communities has ordered the
adopt the measures necessary to transpose directives                      removal from the register of Case C-282/94 : French
addressed to them into their domestic law before the
                                                                          Republic v. Commission of the European Communities .
expiry of the period prescribed for doing so and forthwith
to inform the Commission thereof. That period, which is
                                                                          (') OJ No C 351 , 10 . 12 . 1994 .
laid down in Article 21 of the Directive, expired without
the Portuguese Republic having brought into force the
necessary provisions.
H OJNoL20, 26 . 1 . 1980 , p . 43 .
                                                                                Removal from the register of C- 174/95 ( ] )
                                                                                97/C 199/36 )
                                                                          By order of 7 March 1997, the President of the Court of
Action brought on 16 May 1997 by the Commission of                        Justice of the European Communities ordered the removal
the European Communities against the Kingdom of                           from the register of Case C-l 74/95 ( Reference for a
                                   Belgium                                preliminary ruling from the Pretura Circondariale di
                                                                          Roma, Sezione Distaccata di Tivoli ( Rome District
                             ( Case C-190/97 )
                                                                          Magistrates' Court, Tivoli Division )): criminal proceedings
                               ( 97/C 199/34 )                            against Siro Mattei .
                                                                          ( ] ) OJ No C 208 , 12 . 8 . 1995 .
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities
on 16 May 1997 by the Commission of the European
Communities, represented by Gotz zur Hausen, acting as
Agent, with an address for service in Luxembourg at the
office of Carlos Gomez de la Cruz, Wagner Centre,                                    Removal from the register of C-175/95 (')
Kirchberg.
                                                                                ( 97/C 199/37 )
The Commission of the European Communities claims
that the Court should :                                                    By order of 7 March 1997, the President of the Court of
                                                                          Justice of the European Communities ordered the removal
                                                                           from the register of Case C-175/95 ( Reference for a
— declare that, by failing to adopt the laws, regulations                  preliminary ruling from the Pretura Circondariale di
       and administrative provisions necessary to comply                   Roma, Sezione Distaccata di Tivoli ( Rome District
       with     Commission          Directives    93/72/EEC ( l ) . of     Magistrates' Court, Tivoli Division )): criminal proceedings
       1 September 1993 and 93/101 /EC (2 ) of 11 November                 against Bruno Belli .
       1993 adapting to technical progress for the 19th and
       20th time respectively Council Directive 67/548/EEC                 H OJ No C 208 , 12 . 8 . 1995 .
       on the approximation of the laws, regulations and
       administrative provisions relating to the classification,
       packaging and labelling of dangerous substances ( 3 ),
       the Kingdom of Belgium has failed to fulfil its
       obligations under those Directives, and
                                                                                Removal from the register of C-l 76/95 (')
 — order the Kingdom of Belgium to pay the costs .                                                       ( 97/C 199/38 )
 Pleas in law and main arguments adduced in support:
                                                                           By order of 7 March 1997, the President of the Court of
                                                                           Justice of the European Communities ordered the removal
 The pleas in law and main arguments are similar to those                  from the register of Case C-l 76/95 ( Reference for a
 put forward in Case C-l 86/97: the relevant time-limits                   preliminary ruling from the Pretura Circondariale di
 expired on 1 July 1994 and 1 January 1995 respectively.                   Roma, Sezione Distaccata di Tivoli ( Rome District
                                                                           Magistrates' Court, Tivoli Division )): criminal proceedings
 (') OJ No L 258 , 16 . 10 . 1993 , p . 29 .                               against Armando Scrocca .
 ( 2 ) OJ No L 13 , 15 . 1 . 1994 , p . 1 .
 ( 3 ) OJ, English Special Edition 1967, p. 234 .                          (') OJ No C 208 , 12 . 8 . 1995 .


title: Action brought on 25 May 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-201/98)

text:
C 258/20              EN                  Official Journal of the European Communities                                    15.8.98
     legally permissible, that is to say, adequate, not              Reference for a preliminary ruling by the Regeringsrätten
     vitiated by any error of law or of fact and not                 by order of that court of 29 April 1998 in the case of X
     contradictory;                                                             AB and Y AB against Riksskatteverket
                                                                                (Case C-200/98)
Ð infringement of the Staff Regulations of officials of the
     European Communities, in particular Articles 12, 13,                                    (98/C 258/33)
     14 and 17, the first and second paragraphs of
     Article 21, Article 25, the second paragraph of
     Article 87 and the fifth paragraph of Article 88 thereof
     and Annex IX thereto, in particular Articles 1, 2 and           Reference has been made to the Court of Justice of the
     3, the second paragraph of Article 7 and Article 11 of          European Communities by order of 29 April 1998,
     that annex;                                                     received at the Court Registry on 22 May 1998, for a
                                                                     preliminary ruling in the case of X AB and Y AB against
Ð breach of the general principles applicable under                  Riksskatteverket on the following question:
     Community law, in particular the principle of the
     rights of the defence, the audi alteram partem rule, the
     principle that the court seised of the proceedings must
     be impartial (and Article 6 of the Convention on                Under Paragraph 2(3) of Law 1947:576 on State Income
     Human Rights), the principles of legal certainty, good          Tax, an intra-group transfer is treated, under certain
     faith and the protection of legitimate expectations, the        conditions, as having fiscal effect if it is made by a
     duty to have regard for the welfare and interests of            Swedish limited liability company to another Swedish
     officials and the principle that all administrative acts        limited liability company which is wholly owned either by
     must be based on legally permissible grounds, that is           the first-named company directly or by that company
     to say, grounds which are pertinent and not vitiated by         together with a wholly-owned Swedish subsidiary or
     any error of law or of fact.                                    subsidiaries. The fiscal result is the same if one, or more,
                                                                     of the wholly-owned subsidiaries is foreign provided it is
                                                                     established, or they are established, in one and the same
The contested judgment applies a restrictive interpretation          Member State and Sweden has concluded with that State a
to the fifth paragraph of Article 88 of the Staff                    double-taxation      agreement       containing    a    non-
Regulations of officials; the object of that provision is to         discrimination clause. Against that background, is it
ensure that the administrative authority charged with                compatible with existing Community law, in particular
investigating the matter and thereafter, as the case may be,         Article 52 in combination with Article 58 and Article 73b
with imposing a disciplinary measure is fully informed of            and d of the Treaty of Rome, to apply a set of rules under
the facts alleged against the official concerned which form          which an intra-group transfer is not treated as having the
the subject-matter of the criminal prosecution brought               same fiscal effect when the Swedish parent company
against him.                                                         instead owns the recipient company together with two or
                                                                     more wholly-owned foreign subsidiaries which are
The appellant also complains that the Court of First                 established in different Member States with which Sweden
Instance based its contested judgment on incorrect                   has concluded a double-taxation agreement containing a
considerations and reasons which were contrary to the                non-discrimination clause?
items contained in the case-file. The Court of First
Instance failed in the contested judgment to arrive at the
proper factual or legal conclusions which it should have
drawn from the information in the file before it.
The contested judgment should also be annulled on the
ground that it misapplies the audi alteram partem rule, the
principle of equality of arms and the obligation to provide          Action brought on 25 May 1998 by the Commission of
a statement of pertinent reasons. Thus it wrongly                    the European Communities against the Kingdom of
concludes that the principle of equality of arms was                                            Belgium
respected on the ground that the appellant had access to                                  (Case C-201/98)
the documents which were available to the Disciplinary
Board for the purposes of delivering its opinion, on which                                   (98/C 258/34)
the appointing authority relied in adopting the contested
decision'. The Court of First Instance also wrongly based
on the same grounds its conclusion that the appellant was
given the opportunity of acquainting himself with all the
                                                                     An action against the Kingdom of Belgium was brought
facts on which the decision was based, in sufficient time
                                                                     before the Court of Justice of the European Communities
to enable him to submit his observations'.
                                                                     on 25 May 1998 by the Commission of the European
                                                                     Communities, represented by Frank Benyon, Legal
(1) Judgment of 19 March 1998 in Case T-74/96 (OJ C 137 of           Adviser, and Bernard Mongin, of its Legal Service, acting
    2.5.1998, p. 13).                                                as Agents, with an address for service in Luxembourg at
                                                                     the Office of Carlos Gómez de la Cruz, Wagner Centre,
                                                                     Kirchberg.
 ---pagebreak--- 15.8.98                EN                 Official Journal of the European Communities                                  C 258/21
The Commission of the European Communities claims                    The Kingdom of Belgium is wrong in maintaining that the
that the Court should:                                               time-limits for adjusting the cargo-sharing arrangements in
                                                                     respect of trades governed by the United Nations Code of
                                                                     Conduct for Liner Conferences have not expired and that
Ð declare that, by concluding and maintaining in force               the date on which Belgium signed the Code of Conduct
    the agreements with Mali containing cargo-sharing                did not constitute the deadline for adjusting the
    arrangements, and by omitting either to adjust the               arrangement. The Commission observes that, in any event,
    agreements with Senegal and Côte d'Ivoire in such a              no adjustment has been made 11 years after the entry into
    way as to provide for fair, free and non-discriminatory          force of the regulation and 5 years after expiry of the final
    access by Community nationals to cargo-shares due to             deadline for adjustment laid down by that regulation.
    Belgium or to denounce those agreements, Belgium has
    failed to fulfil its obligations under Council Regulation
    (EEC) No 4055/86 of 22 December 1986 applying the
    principle of freedom to provide services to maritime             The agreement concluded after the entry into force of
    transport between Member States and between                      Regulation No 4055/86 (between the Belgo-Luxembourg
    Member States and third countries (1), in particular             Economic Union and Mali)
    Articles 3 and 4(1) thereof in the case of Senegal and
    Côte d'Ivoire and Article 5 thereof in the case of Mali;
Ð order the Kingdom of Belgium to pay the costs.                     The prohibition of cargo-sharing arrangements in any
                                                                     further agreements' (Article 5 of the regulation) is
                                                                     designed to obviate the significant legal effects of such
                                                                     arrangements, which undermine the principle of freedom
Pleas in law and main arguments adduced in support:
                                                                     to provide services to maritime transport applied by
                                                                     Regulation No 4055/86. In order to guarantee the
                                                                     effectiveness of the prohibition, the Member States are
The existing agreements (between the Belgo-Luxembourg                obliged to refrain from including cargo-sharing
Economic Union and Senegal and between the Belgo-                    arrangements in any new agreements negotiated with third
Luxembourg Economic Union and Côte d'Ivoire                          countries.
The agreements with Senegal and Côte d'Ivoire entered
into force on 3 September 1984 and 25 October 1979,
                                                                     The agreement concluded with Mali contains cargo-
that is to say, prior to the entry into force of Regulation
                                                                     sharing arrangements which, in the case of future
No 4055/86. They are existing agreements which are
                                                                     agreements, may be authorised only in those exceptional
subject to the provisions of Articles 3 and 4 of that
                                                                     circumstances, provided for in Article 5(1) of Regulation
regulation.
                                                                     No 4055/86, where Community liner shipping companies
                                                                     would not otherwise have an effective opportunity to ply
                                                                     for trade to and from the country concerned, and which
Each of those agreements contains cargo-sharing                      may be permitted in accordance with Article 6 of the
arrangements reserving up to 40 % of trade for Belgian or            regulation, which provides for a proposal to be submitted
Luxembourg shipping companies, to the exclusion of                   by the Commission to the Council. Those criteria and
shipping companies established in other Member States of             procedures are not satisfied in the present case.
the Community. According to Article 3 of the regulation,
those arrangements are to be phased out or adjusted in
accordance with the provisions of Article 4.
                                                                     The agreement in question reserves carriage between the
Belgium is unable to produce any act effectively adjusting           parties thereto for vessels which fly the flag of either of
or phasing out the arrangements in the agreements with               those parties or which are operated by national shipping
Senegal, and has not referred to any notice published in             companies'. It follows that vessels operated by nationals
the Moniteur Belge. It has not therefore shown that the              of other Member States are excluded from the trade. The
cargo-sharing agreement has been terminated.                         agreement has therefore been contrary to the regulation
                                                                     since it entered into force. Consequently, the regulation
                                                                     has been infringed, albeit that Belgium purports to wish to
                                                                     terminate the agreement as regards the future. In any
As regards adjustment of the agreement concluded with
                                                                     event, no adjustment has been carried out to date.
Côte d'Ivoire, a draft additional protocol to the maritime
agreement between the Belgo-Luxembourg Economic
Union and the Republic of Côte d'Ivoire was
                                                                     (1) OJ L 378 of 31.12.1986, p. 1.
communicated to the Commission on 7 April 1998
(SG(98)A/5766). Quite apart from the fact that it requires
various alterations in order to bring it into line with
Community law, that draft has not yet been signed and
has not entered into force.


title: Judgment of the Court (First Chamber) of 7 December 2000 in Case C-2/99 (reference for a preliminary ruling from the Hessisches Finanzgericht, Kassel): Döhler GmbH v Hauptzollamt Darmstadt (Agriculture — Common organisation of the markets — Production refunds — Article 7 of Regulation (EEC) No 2169/86, as amended by Regulation (EEC) No 165/89 — Esterified or etherified starch — Proper use — Penalties — Meaning of "party concerned")

text:
10.3.2001               EN                      Official Journal of the European Communities                                                C 79/7
Directive 92/83/EEC on the harmonisation of the structures of              The term ‘party concerned’ used in Article 7(5) of Commission
excise duties on alcohol and alcoholic beverages (OJ 1998                  Regulation (EEC) No 2169/86 of 10 July 1986 laying down
L 295, p. 43) — the Court (Fifth Chamber), composed of: A.                 detailed rules for the control and payment of the production refunds
La Pergola, President of the Chamber, M. Wathelet (Rapporteur)             in the cereals and rice sectors, as amended by Commission Regulation
and D.A.O. Edward, Judges; D. Ruiz-Jarabo Colomer, Advocate                (EEC) No 165/89 of 24 January 1989, is to be construed as
General; L. Hewlett, Administrator, for the Registrar, has given           meaning that it does not refer to a purchaser of esterified or etherified
a judgment on 7 December 2000, in which it:                                starch who has undertaken to his supplier to use that product
                                                                           exclusively for the manufacture of products other than those listed in
1.    Dismisses the application;                                           Annex I to that regulation. Such a purchaser cannot therefore have
                                                                           imposed on him the penalty provided for in Article 7(5) of that
2.    Orders the Italian Republic to pay the costs.                        regulation, namely, payment of an amount equal to 105 % of the
                                                                           highest production refund applicable to the product in question
                                                                           during the previous 12-month period.
(1) OJ C 71 of 13.3.1999.
                                                                           (1) OJ C 71 of 13.3.1999.
                 JUDGMENT OF THE COURT
                          (First Chamber)                                                       ORDER OF THE COURT
                       of 7 December 2000
                                                                                (Fifth Chamber)
in Case C-2/99 (reference for a preliminary ruling from
the Hessisches Finanzgericht, Kassel): Döhler GmbH v                                              of 27 September 2000
                  Hauptzollamt Darmstadt (1)
                                                                           in Case C-456/99 P: J v Commission of the European
(Agriculture — Common organisation of the markets —                                                   Communities (1)
Production refunds — Article 7 of Regulation (EEC) No
2169/86, as amended by Regulation (EEC) No 165/89 —
Esterified or etherified starch — Proper use — Penalties —                 (Officials — Place of recruitment — Habitual residence at
                  Meaning of ‘party concerned’)                            the time of recruitment — Legal characterisation of the facts
                                                                                found — Manifestly inadmissible appeal)
                           (2001/C 79/12)
                                                                                (2001/C 79/13)
                   (Language of the case: German)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                                                                           In Case C-456/99 P: J, an official of the Commission of the
                   in the European Court Reports)
                                                                           European Communities, residing in Brussels, represented by
                                                                           G. Vandersanden and L. Levi, of the Brussels Bar, with an
In Case C-2/99: reference to the Court under Article 177 of                address for service in Luxembourg at the offices of Société de
the EC Treaty (now Article 234 EC) from the Hessisches                     Gestion Fiduciaire, 2-4 Rue Beck — appeal against the
Finanzgericht (Finance Court, Hessen), Kassel, Germany, for a              judgment of the Court of First Instance of the European
preliminary ruling in the proceedings pending before that                  Communities (Third Chamber) of 28 September 1999 in Case
court between Döhler GmbH and Hauptzollamt Darmstadt —                     T-28/98 J v Commission (not yet published in the European
on the interpretation of Article 7(5) of Commission Regulation             Court Reports), seeking to have that judgment set aside and to
(EEC) No 2169/86 of 10 July 1986 laying down detailed rules                obtain relief in the form of order sought by the appellant in
for the control and payment of the production refunds in the               the proceedings at first instance, the other party to the
cereals and rice sectors (OJ 1986 L 189, p. 12), as amended by             proceedings being the Commission of the European Communi-
Commission Regulation (EEC) No 165/89 of 24 January 1989                   ties (Agent: J. Currall, assisted by D. Waelbroeck) — the Court
(OJ 1989 L 20, p. 14) — the Court (First Chamber), composed                (Fifth Chamber), composed of: D.A.O. Edward, President of the
of: M. Wathelet, President of the Chamber, P. Jann (Rapporteur)            Chamber, L. Sevón, A. La Pergola, P. Jann and M. Wathelet,
and L. Sevón, Judges; G. Cosmas, Advocate General; D. Louter-             Judges; G. Cosmas, Advocate General; R. Grass, Registrar, has
man-Hubeau, Head of Division, for the Registrar, has given a               made an order on 27 September 2000, the operative part of
judgment on 7 December 2000, in which it has ruled:                        which is as follows:


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 October 1996 in Case T-36/94: Alberto Capitanio v. Commission of the European Communities (Officials - Reinstatement - Determination of the level of a post - Act adversely affecting an official)

text:
23 . 11 . 96           EN                Official Journal of the European Communities                                 No C 354/23
     Member State such as the second paragraph of                         law and, in particular, with the Court's findings as to
     Article 29 of Law No 428 of 29 December 1990                         unacceptable requirements of proof in Case 199/82 ( San
     complies with that principle, simply because the                     Giorgio ), cited above ? In particular, are the
     conditions laid down therein for reimbursement of fiscal             interpretation and application of Article 29 compatible
     charges linked to Community law, although restrictive                with Community law, on the basis of the assumption
     in comparison with the general rules of ordinary law, are            that ' it is a well-known fact that consumer taxes are
     however less onerous in comparison with the special                  passed on' presumptive evidence is deemed to be
     conditions for reimbursement laid down in the third                  sufficient proof of passing on and therefore for the claim
     paragraph of Article 29 ?                                            for reimbursement to be dismissed ?
3 . Do the abovementioned fundamental principles of the             5 . In consequence, is it compatible with Community law
     Community order preclude the adoption by a Member                    for the national court or its expert witness to establish
     State — after numerous judgments of the Court                        that charges have been passed on , relying on those mere
     declaring various charges relating to customs duties on              presumptions, which are claimed to be evidence freely
     imports, manufacturing taxes, consumer taxes, sugar                  assessed by the court, thus systematically excluding
     premium and state taxes to be incompatible with                      applications for reimbursement, as is happening in
     Community law — of a procedural provision such as                    practice, with the result that the debtor
     Article 29 of Law No 428 , which specifically reduces the            Amministrazione never acknowledges that it has to
     possibilities of bringing proceedings for recovery of                make repayment ?
     charges which were wrongly levied in breach of
     Community law ?                                                6 . May a rule such as that laid down in the fourth and
                                                                          eighth paragraphs of Article 29 , establishing procedural
4 . Is such a law as that — supposedly introduced in order                formalities ( for example, the requirement to notify
     to make national law comply with the precepts of the                 particular departments of the debtor authority ) which
     Court of Justice — which was passed three and a half                 were never contemplated in previous cases of
     years late following the judgments of the Court in                   reimbursement considered under the relevant general
     question, thus further unjustly enriching the State                  rules, be introduced and may it be interpreted with
     responsible for the delay, compatible with Community                 retrospective effect ?
                                                   COURT OF FIRST INSTANCE
JUDGMENT OF THE COURT OF FIRST INSTANCE                             Directorate E ( East and Southern Africa ) of
                      of 16 October 1996                            Directorate-General VIII ( Development ), of the decision of
                                                                    the Commission classifying that position as a grade A 5/A 4
in Case T-36/94 : Alberto Capitanio v. Commission of the            post, of the decision to annul the vacancy notice for that post
                   European Communities C )                         in order to allow the reinstatement of an official who had
(Officials — Reinstatement — Determination of the level of          taken leave on personal grounds, and of all subsequent
         a post — Act adversely affecting an official)              and/or connected decisions adopted by the Commission in
                         ( 96/C 354/45 )                            consequence of the aforementioned decisions , in particular
                                                                    the decision rejecting the applicant's application for the post
                                                                    and the decision appointing Mr G. to that post — the Court
                                                                    of First Instance ( Fourth Chamber ), composed of: K.
                                                                    Lenaerts, President, and P. Lindh and J. D. Cooke , Judges; J.
                 (Language of the case: French)                     Palacio Gonzalez, Administrator, for the Registrar, has
                                                                    given a judgment on 16 October 1996 , in which it:
In Case T-36/94 : Alberto Capitanio, an official of the             1 . dismisses the application;
Commission of the European Communities, residing in
Brussels, represented by Jean-Noel Louis, Veronique
Leclercq, Greta-Fran^oise Parmentier and Ariane Tornel, of          2 . orders the Commission to pay the costs.
the Brussels Bar, with an address for service in Luxembourg
at the offices of Fiduciaire Myson Sari, 1 Rue Glesener, v.
Commission of the European Communities ( Agent: Ana                 f 1 ) OJ No C 76 , 12 . 3 . 1994 .
Maria Alves Vieira ) — application for annulment of the
decision of the Commission concerning the drawing-up and
publication of vacancy notice COM/022/93 for the post of
Head of Unit 4 (Technical group on infrastructure ) of


title: Judgment of the Court (Fifth Chamber) of 9 September 2004 in Case C-113/03: Commission of the European v French Republic (Failure of a Member State to fulfil obligations — Telecommunications — Directive 97/33/CE — Number portability service — Non-geographic numbers)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/10

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 9 September 2004
   in Case C-113/03: Commission of the European v French Republic (1)

   (Failure of a Member State to fulfil obligations - Telecommunications - Directive 97/33/CE - Number portability service - Non-geographic numbers)
   (2004/C 262/19)
   Language of the case: French
   In Case C-113/03: action under Article 226 EC for failure to fulfil obligations, brought on 13 March 2003, Commission of the European Communities (Agents: C. Giolito and M. Shotter) v French Republic (Agents: G. de Bergues and C. Lemaire) — the Court (Fifth Chamber), composed of: C. Gulmann (Rapporteur), President of the Chamber, S. von Bahr and R. Silva de Lapuerta, Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 9 September 2004, in which it:

               1.

               Declares that, by failing to ensure that portability of non-geographic numbers was available on 1 January 2000 at the latest, as required by Article 12(5) of Directive 97/33/EC of the European Parliament and of the Council of 30 June 1997 on interconnection in Telecommunications with regard to ensuring universal service and interoperability through application of the principles of Open Network Provision (ONP), as amended by Article 1(2) of Directive 98/61/EC of the European Parliament and of the Council of 24 September 1998 with regard to operator number portability and carrier pre-selection, the French Republic has failed to fulfil its obligations under that directive;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 113 of 10.5.2003.


title: ORDER OF THE COURT (First Chamber) of 16 September 1997 in Case C-59/96 P: Casper Koelman v. Commission of the European Communities, supported by Buma, an association governed by Dutch law, and the French Republic (Appeal - Regulation No 17 - Rejection of a complaint - Statement of reasons)

text:
1 . 11 . 97             EN                  Official Journal of the European Communities                                       C 331 /9
     of assessment, authorizes Member States to regard a               Hewlett, Administrator, for the Registrar, has given a
     credit note issued by the recipient of the goods or               judgment on 25 September 1997, in which it has ruled:
     services as a 'document serving as an invoice', where it
     includes the information prescribed for invoices by
     that directive, it is drawn up with the agreement of the          1 . The rule laid down in Council Regulation (EEC)
     taxable person who supplies the goods or services, and                   No 222H7 of 13 December 1976 on Community
     the latter is able to contest the amount of value added                  transit and Commission Regulation (EEC) No 223177
     tax mentioned.                                                           of 22 December 1976 on provisions for the
                                                                              implementation of the Community transit procedure
                                                                              and for certain simplifications of that procedure to the
2 . A taxable person who has not contested the mention,                       effect that, save as otherwise provided, proof of the
     in a credit note serving as an invoice, of an amount of                  Community status of goods may be provided only by
     value added tax greater than that owed by reason of                      means of transit documents T2 or T2 L is consistent
     taxable transactions may be regarded as the person                       with Articles 9 and 10 of the EC Treaty.
     who has mentioned that amount, and is consequently
     liable to pay the amount shown, within the meaning
     of Article 21 (1 ) (c) of the Sixth Directive.                    2 . Article 37 (2) of Regulation (EEC) No 222177 does
                                                                              not allow proof of the Community status of goods to
                                                                              be provided by means of the findings of the competent
(') OJ C 180, 22 . 6 . 1996 .                                                 authorities of a Member State made when inspections
(2) OJL 145, 13 . 6 . 1977, p . 1 .                                          are carried out under the Community transit
                                                                             procedure.
                                                                       f 1 ) OJ C269, 14 . 9 . 1996 . .
                                                                       (2 ) OJL 38 , 9.2 . 1977, p. 1 .
                                                                       ( 3 ) OJL 38 , 9.2 . 1977, p . 20 .
               JUDGMENT OF THE COURT
                         (Fourth Chamber)
                       of 25 September 1997
in Case C-237/96 (reference for a preliminary ruling from                                  ORDER OF THE COURT
the Cour d'Appel, Mons ): criminal proceedings against                                            (First Chamber)
                Eddy Amelynck and Others ( l )
                                                                                of 16 September 1997
(Free movement of goods — Community transit — Proof
              of the Community status of goods)                        in Case C-59/96 P: Casper Koelman v. Commission of
                                                                       the European Communities, supported by Buma, an
                           ( 97/C 331 /15 )                            association governed by Dutch law, and the French
                                                                                Republic (J )
                                                                       (Appeal — Regulation No 17 — Rejection of a complaint
                 (Language of the case: French)                                              — Statement of reasons)
                                                                                (:97/C 331 / 16
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                       (Language of the case: Dutch)
In Case C-237/96 : reference to the Court under Article 177               (Provisional translation; the definitive translation will be
of the EC Treaty from the Cour d'Appel ( Court of                                  published in the European Court Reports)
Appeal ), Mons (Belgium ), for a preliminary ruling in the
criminal proceedings pending before that court against
Eddy Amelynck and Others and Transports Amelynck                       In Case C-59/96 P, Casper Koelman (represented by:
SPRL, party liable at civil law — on the interpretation                R. V. H. Jonker) — appeal against the judgment of the
and validity of Council Regulation ( EEC ) No 222/77                   Court of First Instance of the European Communities
of 13 December 1976 on Community transit (2 )                          ( Fourth Chamber, Extended Composition ) in Case T-575/
and Commission Regulation ( EEC) No 233/77 of                          93 Koelman v. Commission [ 1996] ECR II- 1 , seeking to
22 December 1976 on provisions for the implementation                  have that judgment set aside, the other party to the
of the Community transit procedure and for certain                     proceedings being the Commission of the European
simplifications of that procedure (3 ) — the Court ( Fourth            Communities (Agent: B. J. Drijber ), supported by Buma,
Chamber), composed of: J. L. Murray, President of the                  an association governed by Dutch law, established at
Chamber, C. N. Kakouris ( Rapporteur) and P. J. G.                     Amstelveen (Netherlands), represented by C. van Rij and
Kapteyn, Judges; C. O. Lenz, Advocate General; L.                      E. A. P. Engels, of the Amsterdam Bar, with an address for
 ---pagebreak--- C 331 / 10              EN                    Official Journal of the European Communities                                        1 . 11 . 97
service in Luxembourg at the Chambers of G. Harles, 8                   3 . Where a collective agreement provides that pay for
10 Rue Mathias Hardt, and the French Republic (Agents:                       the same work or for work of equal value is
C. de Salins and R Martinet) — the Court ( First Chamber)                    to vary according to the employee's professional
composed of: L. Sevon, President of the Chamber, D. A. O.                    qualifications, are the groups to be compared for the
Edward and M. Wathelet ( Rapporteur), Judges; G.                             purpose of determining whether a measure gives rise
Tesauro, Advocate General; R. Grass, Registrar, has made                     to discrimination to be defined by reference to
an order on 16 September 1997, the operative part of
which is at follows :
                                                                             ( a ) the persons actually employed in the undertaking,
1 . The appeal is dismissed;
                                                                             ( b ) the employees covered by the collective agreement,
                                                                                or
2 . The appellant is ordered to pay the costs.
                                                                             (c ) the persons qualified to pursue that occupation ?
(') OJ C 133,4 . 5 . 1996 .
                                                                         4 . In such a case ( Questions 2 and 3 ) is the relevant
                                                                             proportion of men to women that in the
                                                                             disadvantaged group only, or that in both groups ?
Reference        for     a      preliminary    ruling     by     the
Oberlandesgericht Wien by order of that court of 5 May                   5 . Where the activities which both groups have actually
1997 in the case of Angestelltenbetriebsrat der Wiener                       been called on to perform represent only a fraction of
 Gebietskrankenkasse against Wiener Gebietskrankenkasse                      the duties covered by the relevant professional
                           ( Case C-309/97                                   qualification, is the relevant group
                             ( 97/C 331 /17)
                                                                             ( a ) all persons whose qualifications cover such duties
                                                                                ( all medical specialists and all psychologists ) in the
Reference has been made to the Court of Justice                                    relevant context ( the establishment, the collective
of the European Communities by order of the                                        agreement — see Question 3 ),
Oberlandesgericht ( Higher Regional Court), Vienna, of
5 May 1997, received at the Court Registry on
4 September 1997, for a preliminary ruling in the case of                    ( b ) all those specifically qualified for this type of work
Angestelltenbetriebsrat der Wiener Gebietskrankenkasse v.                          ( doctors specialized in psychiatry . . .), or
Wiener Gebietskrankenkasse on the following questions:
                                                                             (c ) only those who in practice perform these duties ?
1 . Do the terms 'equal work' or 'the same job' apply for
     the purposes of Article 119 of the EC Treaty or
     Directive 75/117/EEC ( J ) where the same duties are                6 . Where employees are assigned to the same duties, is a
     performed over a considerable length of time                            difference in their professional training to be regarded
     ( several salary periods ) by employees with different                  as a factor capable of justifying discriminatory rates of
     professional qualifications ?                                           pay ? Are more extensive professional qualifications to
                                                                             be regarded, independently of the duties actually
                                                                             performed, as an objective factor justifying
2. Is it material, in determining whether discrimination                     discriminatory rates of pay ?
     for the purposes of Article 119 of the EC Treaty or
     Directive 75/119/EEC exists, that:
                                                                             ( a ) Is the decisive factor therefore whether the higher
     ( a ) pay is determined exclusively by the parties to the                     paid group of employees in the undertaking
           employment contract, who may decide whether                             concerned can also be considered for other duties,
                                                                                or
           to have the terms of collective agreements
           incorporated therein,
                                                                             ( b ) is actual proof of performance of other duties
     ( b ) general    rules      (collective agreements )    fix   a               essential ?
           mandatory minimum level of pay for every
           employee in a particular field or
                                                                             Is account to be taken of the fact that the relevant
     (c ) pay is governed unconditionally and definitively by                rules of the collective agreement provide for protection
           collective agreements ?                                           against arbitrary dismissal ?


title: Case T-327/03: Action brought on 19 September 2003 by STICHTING AL-AQSA against the Council of the European Union and Commission of the European Communities

text:
C 289/30               EN                          Official Journal of the European Union                                         29.11.2003
Action brought on 19 September 2003 by STICHTING                           decision, in that contrary to the requirements of these pro-
AL-AQSA against the Council of the European Union and                      visions no decision had been taken by a competent authority
         Commission of the European Communities                            in respect of the applicant, concerning the instigation of
                                                                           investigations or prosecution for a terrorist act, based on
                                                                           serious and credible evidence or clues. The applicant also
                         (Case T-327/03)                                   invokes alleged violations of the general principles of Com-
                                                                           munity law, in particular the principles of proportionality, the
                        (2003/C 289/62)                                    right to a fair hearing, the right to privacy, the right to freedom
                                                                           of expression and association, and the right to property.
                                                                           Finally, the applicant submits that the contested decisions
                   (Language of the case: English)                         violate the freedom of circulation of capital protected by
                                                                           article 56 of the EC Treaty.
An action against the Council of the European Union and the                (1) OJ L 344, 28.12.2001, p. 70-75.
Commission of the European Communities was brought                         (2) OJ L 344, 28.12.2001, p. 93-94.
before the Court of First Instance of the European Communities
on 19 September 2003 by STICHING AL-AQSA, Heerlen, The
Netherlands, represented by Victor Koppe and Laura Janssen,
lawyers.
The applicant claims that the Court should:
                                                                           Action brought on 26 September 2003 by Xanthippi
—     Partially annul, on the basis of Article 230 of the EC
                                                                               Liakoura against the Council of the European Union
      Treaty, COUNCIL DECISION 2003/480/EC of 27 June
      2003 and/or COUNCIL DECISION 2003/646/EC of
      12 September 2003, implementing Article 2 paragraph 3                                          (Case T-330/03)
      of Regulation (EC) No. 2580/2001 on specific restrictive
      measures directed against certain persons and entities
      with a view to combatting terrorism and more specifi-                                         (2003/C 289/63)
      cally;
                                                                                (Language of the case: French)
—     Annul article 1, part 2, point 22, that reads: ‘Stichting Al
      Aqsa (alias Stichting Al Aqsa Nederland, alias Al Aqsa
      Nederland)’
—     Declare inapplicable, on the basis of Article 241 of the             An action against the Council of the European Union was
      EC Treaty, Council Regulation (EC) No 2580/2001 of                   brought before the Court of First Instance of the European
      27 December 2001, on specific restrictive measures                   Communities on 26 September 2003 by Xanthippi Liakoura,
      directed against certain persons and entities with a view            residing in Brussels, represented by J.A. Martin, avocat.
      to combatting terrorism.
—     Require the defendants to bear the costs of suit.                    The applicant claims that the Court should:
                                                                           —     annul the Council’s decision dated 18 June 2003 and
                                                                                received on 23 June 2003 not to promote the applicant
Pleas in law and main arguments                                                  to Grade C 1 in the 2002 promotion procedure;
                                                                           —     order the Council to pay the applicant the sum of
By the contested decisions the applicant was included in the                     EUR 30 000;
list of persons whose assets were frozen in application of
Council Regulation (EC) No 2580/2001 of 27 December 2001                   —     order the Council to pay the costs.
on specific restrictive measures directed against certain persons
and entities with a view to combatting terrorism (1). In support
of its application the applicant invokes first of all alleged
violations of essential procedural requirements, more specifi-
cally an alleged failure to state any reasons in the contested             Pleas in law and main arguments
decisions and an alleged violation of its right to be heard prior
to the adoption of the contested decision. The applicant further
submits that regulation 2580/2001, as well as Common                       The applicant in this case challenges the Appointing Auth-
Position 2001/931/CFSP (2), to which article 2 paragraph 3 of              ority’s refusal to promote her to Grade C 1 in the 2002
regulation 2580/2001 refers, were infringed by the contested               promotion procedure.


title: Judgment of the Court of First Instance of 11 December 2003 in Case T-61/99: Adriatica di Navigazione SpA v Commission of the European Communities (Competition — Article 85(1) of the EC Treaty (now Article 81(1) EC) — Definition of the relevant market — Statement of reasons — Price-fixing agreement — Proof of participation in the agreement — Proof that a participant distanced himself from the agreement — Principle of non-discrimination — Fines — Criteria for assessment)

text:
C 85/22                EN                           Official Journal of the European Union                                              3.4.2004
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                      of 11 December 2003                                                          of 13 January 2004
                                                                            in Case T-158/99: Thermenhotel Stoiser Franz Gesell-
in Case T-61/99: Adriatica di Navigazione SpA v Com-
                                                                            schaft mbH & Co. KG and Others v Commission of the
          mission of the European Communities (1)
                                                                                European Communities (1)
(Competition — Article 85(1) of the EC Treaty (now                          (State aid — Aid for regional purposes — Validity of
Article 81(1) EC) — Definition of the relevant market —                     lawyer’s signature on the application — Standing — State-
Statement of reasons — Price-fixing agreement — Proof of                    ment of reasons — Compatibility with the common market
participation in the agreement — Proof that a participant                   — Prohibition of discrimination — Right of establishment
distanced himself from the agreement — Principle of non-                    of the national competitors of the aid recipient — Protection
      discrimination — Fines — Criteria for assessment)                                of the environment — Misuse of powers)
                          (2004/C 85/41)                                                              (2004/C 85/42)
                    (Language of the case: Italian)                                           (Language of the case: German)
                                                                            In Case T-158/99, Thermenhotel Stoiser Franz Gesellschaft
In case T-61/99: Adriatica di Navigazione SpA, established in               mbH & Co. KG, VierJahreszeiten Hotel-Betriebsgesellschaft
Venice (Italy), represented by U. Feraro, M. Siragusa and                   mbH & Co. KG, Thermenhotel Kowald, Thermalhotel Leitner
F. M. Moretti, lawyers, with an address for service in Luxem-               GesmbH, established in Loipersdorf (Austria), represented
bourg, against Commission of the European Communities                       by G. Eisenberger, lawyer, with an address for service in
(Agents: R. Lyal and L. Pignataro) — application for annulment              Luxembourg, v Commission of the European Communities
of Commission Decision 1999/271/EC of 9 December 1998                       (Agents: V. Kreuschitz and J. Macdonald Flett), supported
relating to a proceeding pursuant to Article 85 of the EC                   by Republic of Austria (Agents: W. Okresek, H. Dossi,
Treaty (IV/34.466 — Greek Ferries) (OJ 1999 L 109, p. 24) —                 C. Pesendorfer and T. Kramler): Application for annulment of
the Court of First Instance (Fifth Chamber), composed of                    Commission Decision SG(99) D/1523 of 3 February 1999
J. D. Cooke, President, R. García-Valdecasas and P. Lindh,                  declaring State aid in connection with a hotel project in
Judges; J. Plingers, Administrator, acting for the Registrar, has           Loipersdorf (Austria) compatible with the common market, the
given a judgment on 11 December 2003, in which it:                          Court of First Instance (First Chamber, Extended Composition),
                                                                            composed of: B. Vesterdorf, President, J. Azizi, M. Jaeger,
                                                                            H. Legal and M. E. Martins Ribeiro, Judges; D. Christensen,
1.    Sets the fine imposed on Adriatica di Navigazione SpA at              Administrator, for the Registrar, has given a judgment on
      EUR 245 000;                                                          13 January 2004, in which it:
2.    Dismisses the remainder of the application;                           1.    Dismisses the application;
3.    Orders Adriatica di Navigazione SpA to bear its own costs and         2.    Orders the applicants to pay the Commission’s costs;
      to pay three quarters of those incurred by the Commission and
      orders the Commission to bear one quarter of its own costs.
                                                                            3.    Orders the Republic of Austria to bear its own costs.
(1) OJ C 160 of 5.6.1999.                                                   (1) OJ C 299 of 16.10.1999.


title: Case T-334/05: Action brought on 29 August 2005 — Wineke Neirinck v Commission

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/29

         Action brought on 29 August 2005 — Wineke Neirinck v Commission
   (Case T-334/05)
   (2005/C 281/55)
   Language of the case: French
   Parties

      Applicant(s): Wineke Neirinck (Brussels, Belgium) (represented by: G. Vandersanden, L. Levi and C. Ronzi, lawyers)

      Defendant(s): Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               Annul the implied decision rejecting her claim for damages and, so far as may be necessary, the express decision rejecting her complaint;

               —

               Award damages for the pecuniary and non-pecuniary loss sustained by her following the breach of the Commission's promise to recruit her to the Investigatory and Disciplinary Office (IDOC) with effect from 1 May 2004 at the latest, that amount being fixed ex aequo et bono at EUR 576 593,20;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant first of all worked in the Commission as a seconded national expert from 1 May 1998 to 30 April 2001, then as a member of the temporary staff under a contract which expired on 30 April 2004.
   From October 2003 the applicant took steps to obtain a new contract as a member of the temporary staff with effect from 1 May 2004. She claims that she was offered a post in the Investigatory and Disciplinary Office but that finally she was not recruited by reason of fault on the part of the Commission's staff. She alleges that DG ADMIN refused to recruit her on the basis that she had already served the maximum period of six years. According to the applicant that interpretation is erroneous as her first three years in the Commission as a seconded national expert should not have been taken into account. She submits that the administration finally admitted its error but, in the meantime, the post which had been offered to her had already disappeared as a result of restructuring.
   By her action, the applicant seeks compensation for the damage she allegedly suffered. She alleges a breach of the general principles of legitimate expectations, legal certainty, good faith, the duty to state reasons, transparency, ‘patere legem quam ipse fecisti legem’, sound administration, the right to be heard, the duty to have regard to the interests of the official and the interests of the service.