title: Action brought on 23 April 1998 by Stefan Jung against the Commission of the European Communities (Case T-68/98)

text:
C 209/42             EN                 Official Journal of the European Communities                                       4.7.98
Pleas in law and main arguments adduced in support:                service in Luxembourg at the offices of Fiduciaire Myson
                                                                   SARL, 30 Rue de Cessange.
By decision of 12 May 1997 the appointing authority
granted the applicant, at his request, unpaid leave on             The applicant claims that the Court should:
personal grounds (hereinafter unpaid leave') from
1 August to 31 October. By agreement with his immediate
                                                                   Ð rule that the applicant's request that the question of
superior, he took his annual holiday from 1 June to 31 July
                                                                       the possible application of Article 31(2) of the Staff
1997. On 14 July he was the victim of an accident which
                                                                       Regulations be considered with a view to reviewing his
left him unable to work from 14 July to 30 September
                                                                       classification in grade with effect from 5 October
1997. By note of 24 July 1997 the applicant requested
                                                                       1995 is admissible and well-founded,
cancellation of his unpaid leave in view of the fact that he
was on sick leave. The act adversely affecting him is the
decision of the Director-General of Budgets rejecting the
                                                                   Ð annul the Commission's decision implicitly rejecting
request of the applicant, who was on sick leave from
                                                                       the applicant's request that the possible application of
14 July to 30 September 1997, to cancel his unpaid leave.
                                                                       Article 31(2) of the Staff Regulations be considered,
The applicant pleads infringement of Article 25 of the             Ð if necessary, annul the decision explicitly rejecting the
Staff Regulations. No grounds whatsoever were given for                applicant's complaint, which the Commission adopted
the decision refusing cancellation of his unpaid leave. The            on 17 December 1997,
applicant was not given any information either directly or
indirectly which would enable him to understand the
reasons for the contested decision. The decision was not           Ð order the defendant to pay all the costs.
communicated to the applicant in writing and without
delay.
                                                                   Pleas in law and main arguments adduced in support:
The second plea alleges infringement on breach of
                                                                   On 13 January 1997 the applicant, an official in Grade B 5,
Article 59(1) of the Staff Regulations. The applicant
                                                                   made a request under Article 90(1) of the Staff
submits that the contested decision is illegal in that his
                                                                   Regulations that his classification in grade be reviewed in
absence from 1 August to 30 September 1997 was
                                                                   the light both of the decision of the Commission of
justified by medical certificates in accordance with
                                                                   7 February 1996 authorising the appointing authority to
Article 59(1) of the Staff Regulations. Moreover the
                                                                   appoint a probationary official to the higher grade in a
decision was adopted without the Commission having
                                                                   career bracket and of his exceptional qualifications.
availed itself of its right to require the applicant to
undergo a medical examination pursuant to the second
subparagraph of Article 59(1) of the Staff Regulations.
                                                                   The applicant challenges the standard reply from the
                                                                   Commission of 8 January 1998 rejecting the complaint
                                                                   and maintaining that the applicant's request and
The final plea alleges breach of the duty to have regard           complaint were late and that the principles of non-
for the welfare of officials and of the principle of               retroactivity and legal certainty ruled out the
legitimate expectations and a manifest error of assessment.        reconsideration of decisions which had become final.
                                                                   The applicant argues that, by refusing to consider the
                                                                   possible application of Article 31(2) of the Staff
                                                                   Regulations, which would be to the applicant's benefit,
                                                                   the Commission infringed Article 31(2) of the Staff
Action brought on 23 April 1998 by Stefan Jung against             Regulations and of the Commission Decision of 7 February
       the Commission of the European Communities                  1996 amending the criteria applicable to appointment in
                                                                   grade and classification in step adopted on 1 September
                       (Case T-68/98)                              1983 as well as the principle of equal treatment and
                                                                   Article 5(3) of the Staff Regulations and, finally, its duty
                        (98/C 209/88)
                                                                   to have regard for the welfare of officials. Moreover, the
                                                                   Commission did not comply with the second paragraph of
                                                                   Article 25 of the Staff Regulations, which requires any
               (Language of the case: French)                      decision adversely affecting an official to state the grounds
                                                                   on which it is based. Finally, the applicant submits that
                                                                   the Commission has committed a manifest abuse of power
An action against the Commission of the European                   and a manifest error of assessment in not reviewing his
Communities was brought before the Court of First                  classification in grade.
Instance of the European Communities on 23 April 1998
by Stefan Jung, residing in Luxembourg, represented by
Nicolas LhoeÈst, of the Brussels Bar, with an address for


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 14 May 1998 in Case T-311/94: BPB de Eendracht NV (formerly Kartonfabriek de Eendracht NV) v. Commission of the European Communities (Competition - Article 85(1) of the EC Treaty - Rights of the defence - Proof of participation in collusion - Information exchange - Order - Fine - Statement of reasons - Determination of the amount - Cooperation during the administrative procedure)

text:
4.7.98                EN                 Official Journal of the European Communities                                 C 209/31
2. Dismisses the application as regards the remaining                   agreement or concerted practice which may have the
     claims.                                                            same or a similar object or effect, including any
                                                                        exchange of commercial information:
3. Orders the applicant to bear its own costs and to pay
     one-half of the Commission's costs.                                a) by which the participants are directly or indirectly
                                                                            informed of the production, sales, order backlog,
                                                                            machine utilisation rates, selling prices, costs or
4. Orders the Commission to bear one-half of its own                        marketing plans of other individual producers.
     costs.
                                                                        Any scheme for the exchange of general information
(1) OJ C 351, 10.12.1994.
                                                                        to which they subscribe, such as the Fides system or its
                                                                        successor, shall be so conducted as to exclude any
                                                                        information from which the behaviour of individual
                                                                        producers can be identified.'.
                                                                    3. Sets the amount of the fine imposed on the applicant
  JUDGMENT OF THE COURT OF FIRST INSTANCE                               by Article 3 of Decision 94/601/EC at ECU 730 000.
                       of 14 May 1998
in Case T-310/94: Gruber & Weber GmbH & Co. KG v.                   4. Dismisses the application as regards the remaining
        Commission of the European Communities (1)                      claims.
(Competition Ð Article 85(1) of the EC Treaty Ð Proof
of participation in collusion Ð Fine Ð Determination of             5. Orders the applicant and the Commission to bear their
the amount Ð Statement of reasons Ð Products                            own costs.
                concerned by the infringement)
                         (98/C 209/66)                              (1) OJ C 380, 31.12.1994.
               (Language of the case: German)
In Case T-310/94: Gruber & Weber GmbH & Co. KG,
established at Gernsbach-Obertsrot, Germany, represented
by Holger-Friedrich Wissel and Joachim Schütze,                       JUDGMENT OF THE COURT OF FIRST INSTANCE
Rechtsanwälte, Düsseldorf, with an address for service in                                 of 14 May 1998
Luxembourg at the Chambers of Marc Loesch, 11 Rue
                                                                    in Case T-311/94: BPB de Eendracht NV (formerly
Goethe v. Commission of the European Communities
                                                                    Kartonfabriek de Eendracht NV) v. Commission of the
(Agents: Bernd Langeheine, Richard Lyal and Dirk
                                                                                European Communities (1)
Schroeder) Ð application for annulment of Commission
Decision 94/601/EC of 13 July 1994 relating to a                    (Competition Ð Article 85(1) of the EC Treaty Ð Rights
proceeding under Article 85 of the EC Treaty (IV/C/                 of the defence Ð Proof of participation in collusion Ð
33.833 Ð Cartonboard, OJ L 243 of 19.9.1994, p. 1) Ð                Information exchange Ð Order Ð Fine Ð Statement of
the Court (Third Chamber, Extended Composition),                    reasons Ð Determination of the amount Ð Cooperation
composed of B. Vesterdorf, President of the Chamber, C. P.                      during the administrative procedure)
BrieÈt, P. Lindh, A. Potocki and J. D. Cooke, Judges; J.
Palacio GonzaÂlez, Administrator, for the Registrar, has                                    (98/C 209/67)
given a judgment on 14 May 1998 in which it:
                                                                                (Language of the case: English)
1. Annuls, as regards the applicant, the eighth indent of
     Article 1 of Commission Decision 94/601/EC of                  In Case T-311/94: BPB de Eendracht NV, formerly
     13 July 1994 relating to a proceeding under Article 85         Kartonfabriek de Eendracht NV, established at
     of the EC Treaty (IV/C/33.833 Ð Cartonboard).                  Appingedam, Netherlands, represented by Alexandre
                                                                    Vandencasteele, of the Brussels Bar, and Gordon Boyd
                                                                    Buchanan Jeffrey, Solicitor, Liverpool, with an address for
2. Annuls, as regards the applicant, the first to fourth
                                                                    service in Luxembourg at the Chambers of Arendt &
     paragraphs of Article 2 of Commission Decision 94/
                                                                    Medernach, 8Ð10 Rue Mathias Hardt v. Commission of
     601/EC of 13 July 1994 relating to a proceeding under
                                                                    the European Communities (Agents: initially Richard Lyal
     Article 85 of the EC Treaty (IV/C/33.833 Ð
                                                                    and Rosemary Caudwell, then subsequently Richard Lyal
     Cartonboard) save and except the following passages:
                                                                    and James Flynn) Ð application for annulment of
                                                                    Commission Decision 94/601/EC of 13 July 1994 relating
     The undertakings named in Article 1 shall forthwith           to a proceeding under Article 85 of the EC Treaty (IV/C/
     bring the said infringement to an end, if they have not        33.833 Ð Cartonboard, OJ L 243 of 19.9.1994, p. 1), the
     already done so. They shall henceforth refrain in              Court (Third Chamber, Extended Composition), composed
     relation to their cartonboard activities from any              of B. Vesterdorf, President of the Chamber, C. P. BrieÈt,
 ---pagebreak--- C 209/32              EN                 Official Journal of the European Communities                                       4.7.98
P. Lindh, A. Potocki and J. D. Cooke, Judges; J. Palacio              JUDGMENT OF THE COURT OF FIRST INSTANCE
GonzaÂlez, Administrator, for the Registrar, has given a                                     of 14 May 1998
judgment on 14 May 1998 in which it:
                                                                    in Case T-317/94: Moritz J. Weig GmbH & Co. KG v.
                                                                            Commission of the European Communities (1)
1. Annuls, as regards the applicant, Article 1 of                   (Competition Ð Article 85(1) of the EC Treaty Ð
    Commission Decision 94/601/EC of 13 July 1994                   Concept of agreement Ð Order Ð Fine Ð Determination
    relating to a proceeding under Article 85 of the EC             of the amount Ð Statement of reasons Ð Mitigating
    Treaty (IV/C/33.833 Ð Cartonboard) in so far as the                                       circumstances)
    date of the beginning of the infringement alleged
    against it is stated to be prior to April 1989.                                           (98/C 209/68)
                                                                                (Language of the case: German)
2. Annuls, as regards the applicant, the eighth indent of
    Article 1 of Decision 94/601/EC.
                                                                    In Case T-317/94: Moritz J. Weig GmbH & Co. KG,
                                                                    established at Mayen, Germany, represented by Thomas
3. Annuls, as regards the applicant, the first to fourth            Jestaett, Karsten Metzlaff and Hanns-Christian Salger,
    paragraphs of Article 2 of Decision 94/601/EC save              Rechtsanwälte, Düsseldorf, Hamburg and Frankfurt-am-
    and except the following passages:                              Main, the also by Verena von Bomhard, Rechtsanwältin,
                                                                    Hamburg, with an address for service in Luxembourg at
                                                                    the Chambers of Philippe Dupont, 8Ð10 Rue Mathias
    The undertakings named in Article 1 shall forthwith            Hardt v. Commission of the European Communities
    bring the said infringement to an end, if they have not         (Agents: Bernd Langeheine, Richard Lyal and Dirk
    already done so. They shall henceforth refrain in               Schroeder) Ð application for annulment of Commission
    relation to their cartonboard activities from any               Decision 94/601/EC of 13 July 1994 relating to a
    agreement or concerted practice which may have the              proceeding under Article 85 of the EC Treaty (IV/C/
    same or a similar object or effect, including any               33.833 Ð Cartonboard, OJ L 243 of 19.9.1994, p. 1) Ð
    exchange of commercial information:                             the Court (Third Chamber, Extended Composition),
                                                                    composed of B. Vesterdorf, President of the Chamber, C. P.
                                                                    BrieÈt, P. Lindh, A. Potocki and J. D. Cooke, Judges; J.
    (a) by which the participants are directly or                   Palacio GonzaÂlez, Administrator, for the Registrar, has
          indirectly informed of the production, sales, order       given a judgment on 14 May 1998 in which it:
          backlog, machine utilisation rates, selling prices,
          costs or marketing plans of other individual
          producers.                                                1. Annuls, as regards the applicant, Article 1 of
                                                                         Commission Decision 94/601/EC of 13 July 1994
                                                                         relating to a proceeding under Article 85 of the EC
    Any scheme for the exchange of general information                   Treaty (IV/C/33.833 Ð Cartonboard) in so far as the
    to which they subscribe, such as the Fides system or its             date of the beginning of the infringement alleged
    successor, shall be so conducted as to exclude any                   against it is stated to be prior to March 1988.
    information from which the behaviour of individual
    producers can be identified.'.
                                                                    2. Annuls, as regards the applicant, the first to fourth
                                                                         paragraphs of Article 2 of Commission Decision 94/
                                                                         601/EC save and except the following passages:
4. Sets the amount of the fine imposed on the applicant
    by Article 3 of Decision 94/601/EC at ECU 750 000.
                                                                         The undertakings named in Article 1 shall forthwith
                                                                         bring the said infringement to an end, if they have not
5. Dismisses the application as regards the remaining                    already done so. They shall henceforth refrain in
    claims.                                                              relation to their cartonboard activities from any
                                                                         agreement or concerted practice which may have the
                                                                         same or a similar object or effect, including any
6. Orders the Commission to bear its costs and to pay                    exchange of commercial information:
    one-half of the applicant's costs.
                                                                         (a) by which the participants are directly or
                                                                               indirectly informed of the production, sales, order
7. Orders the applicant to bear one-half of its own costs.                     backlog, machine utilisation rates, selling prices,
                                                                               costs or marketing plans of other individual
                                                                               producers.
(1) OJ C 380, 31.12.1994.
                                                                         Any scheme for the exchange of general information
                                                                         to which they subscribe, such as the Fides system or its


title: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale per il Veneto - Second Chamber - by order of that court of 14 December 1995 in the case of David Petrie, Robert Hill and David John Newbold v. Università degli Studi di Verona, and in the presence of Camilla Bettoni (Case C-90/96)

text:
No C 158/2          | EN 1                  Official Journal of the European Communities                                       1 . 6 . 96
     1 7 December 1 974 concerning the right ofnationals ofa            The legislation concerns fishing boats but can equally be
     Member State to remain in the territory of another                 applied to commercial and pleasure boats which are used as
     Member State after having pursued therein an activity in           a means of pursuing an economic activity .
     a self-employed capacity.
                                                                       With regard to boats which are not used as a means of
                                                                       pursuing an economic activity but for recreational purposes,
2 . Declares that, by not taking the appropriate measures to
                                                                       the Commission considers that the requirements for their
     comply with the judgment of 4 April 1974 in Case
                                                                       registration under Greek legislation are contrary to
     167/73 Commission v. France [1974] ECR 359, the
                                                                       Articles 6 , 48 and 52 of the Treaty and to Article 7 of
     French Republic has failed to fulfil its obligations under
                                                                       Regulation ( EEC ) No 1251 /70 and Article 7 of Council
     Article 171 of the EC Treaty.                                     Directive 75/34/EEC, inasmuch as workers within the
                                                                       meaning of Article 48 , or professional people within the
3 . Orders the French Republic to pay the costs.                       meaning of Article 52, should receive the same treatment as
                                                                       nationals, both as regards the exercise of their activity and as
                                                                       regards the conditions of their residence in the State in
(') OJ No C 386 , 31 . 12 . 1994 .                                     question .
                                                                       The Commission considers that the right to register a vessel
                                                                       in the national registers of shipping and to fly the flag of the
                                                                       State in question may contribute to the absorption of a
                                                                       person into the host country and, consequently, to the
                                                                       realization of the aim of freedom of movement for persons
                                                                       within the meaning of Articles 48 and 52 of the Treaty .
Action brought on 7 March 1996 by the Commission of the
   European Communities against the Hellenic Republic
                        ( Case C-62/96 )                               C ) OJ, English Special Edition 1970 ( II ), p . 402 .
                                                                       ( 2 ) OJ No L 14, 20 . 1 . 1975 , p . 10 .
                          ( 96/C 158/02 )
An action against the Hellenic Republic was brought before
the Court of Justice on 7 March 1996 by the Commission of
the European Communities, represented by Frank Benuon,
Legal Adviser to the Commission's Legal Service and Maria
Condou-Durande of its Legal Service, with an address for              Reference for a preliminary ruling from the Tribunale
service in Luxembourg at the office of Carlo Gomez de la              Amministrativo Regionale per il Veneto — Second Chamber
Cruz, also of the Commission's Legal Service, Wagner                  — by order of that court of 14 December 1995 in the case of
Centre, Kirchberg.                                                    David Petrie, Robert Hill and David John Newbold v.
                                                                      Université degli Studi di Verona, and in the presence of
                                                                                Camilla Bettoni
The applicant claims that the Court should :
                                                                                ( Case C-90/96 )
                                                                                ( 96/C 158 /03 )
— declare that, by maintaining in force legal provisions
    which restrict the right to registration in the Greek
    registers of shipping to vessels owned as to a percentage         Reference has been made to the Court of Justice of the
    over 50 % by Greek nationals or by Greek legal persons            European Communities by an order of the Tribunale
    whose capital is owned as to the same percentage by               Amministrativo Regionale per il Veneto ( Regional
    Greek nationals, the Hellenic Republic has failed to fulfil       Administrative Court for the Veneto ) — Second Chamber
    its obligations under Articles 6 , 48 , 52, 58 and 221 of the     — of 14 December 1995 , which was received at the Court
    EEC Treaty, Article 7 of Commission Regulation ( EEC )            Registry on 21 March 1996 , for a preliminary ruling in the
    No 1251 /70 of 29 June 1970 ( J ) and Article 7 of Council        case of David Petrie, Robert Hill and David John Newbold
    Directive 75/34/EEC of 17 December 1974 ( 2 );                    against Université degli Studi di Verona (Verona
                                                                      University ), in the presence of Camilla Bettoni, on :
— order the Hellenic Republic to pay the costs.
                                                                      whether Articles 5 and 48 of the EEC Treaty and Articles 1
                                                                      and 3 of Council Regulation ( EEC ) No 1612/68 ( 1 ) of
Pleas in law and main arguments                                        15 October 1968 have to be interpreted as precluding a
                                                                      Member Srate's legislation from restricting the possibility of
The requirements laid down by Greek legislation for the               obtaining course-teaching appointments and temporary
registration of vessels in the Greek registers of shipping are        university teaching posts to specific categories, such as those
similar to those examined by the Court of Justice in Cases            provided for under Italian legislation, within a framework
C-221/89 Factortame [ 1991 ] ECR 3905 and C-246/89                    of legislation and administrative practice of the kind that
Commission v. United Kingdom [ 1991 ] ECR 1-4585 . The                exists in Italy, rather than providing that foreign-language
Court held that requirements of that kind are contrary to             university assistants with an employment relationship for an
Articles 6 , 52, 58 and 221 of the Treaty.                            indeterminate period with an Italian university are also
 ---pagebreak--- 1 . 6 . 96            I hN     i               Official Journal of the European Communities                                    No C 158/3
entitled to compete for the course-teaching appointments                  Commerce ( Commercial Court ) of 1 March 1996 , received
and temporary university teaching posts .                                 at the Court Registry on 18 March 1996 , for a preliminary
                                                                          ruling in the case of URSSAF des Bouches-du-Rhône against
C ) OJ , English Special Edition 1958 ( II ), p . 457                     Clinique de la Pointe Courte SA, intervener: Jean Chouraqui
                                                                          (C - 95/96 ) and in the case of URSSAF des Bouches
                                                                          du-Rhône against Clinique Florens SA, intervener : Jean
                                                                          Chouraqui (C- 96/96 ) on the following question :
                                                                          May the French State initiate proceedings against Mr Jean
Action brought on 25 March 1996 by the Commission of
                                                                          Chouraqui , in his capacity as an Agent ('), before having
the European Communities against the Hellenic Republic
                                                                          made good the damage suffered by him and for which the
                          ( Case C-94/96 )                                State was responsible , bearing in mind that the sums due are
                            ( 96/C 158 /04                                closely linked to the harm suffered by Mr Chouraqui as a
                                                                          result of his irregular imprisonment since he was acquitted
An action against the Hellenic Republic was brought before                by the Cour d'assises by judgment of 16 December 1994 and
the Court of Justice of the European Communities on                       the judicial receivership proceedings aggravate the harm
                                                                          suffered ?
25 March 1996 by the Commission of the European
Communities, represented by Maria Condou-Durande, of
its Legal Service, with an address for service in Luxembourg              (') That is 'in his capacity as an agent for EURL Jean Chouraqui,
at the office of Carlos Gômez de la Cruz, of the                               proprietor of the legal person liable for sums payable to the
Commission's Legal Service , Wagner Centre, Kirchberg.                         French State'; ' since the plea in law based on the difference
                                                                               between the French State and the URSSAF must be rejected '.
The applicant claims that the Court should :
— declare that by failing to adopt in due time the laws,
      regulations and administrative provisions necessary in
      order to comply with Council Directive 92/116/EEC ( 1 )
      of 17 December 1992 amending and updating Directive
      71 /118/EEC ( 2 ) on health problems affecting trade in
      fresh poultrymeat, the Hellenic Republic has failed                 Reference for a preliminary ruling by order of the Pretura
      to fulfil its obligations under the Treaty and that                 Circondariale di Roma, Tivoli Division, of 21 February
      Directive ;                                                         1996 in the criminal proceedings pending before that court
                                                                                against Italia Testa
— order the Hellenic Republic to pay the costs .
                                                                                Case C-101 /96 )
Pleas in law and main arguments                                                                       ( 96/C 158/06
Under Article 189 , third paragraph, of the Treaty
establishing the European Community directives are to be                  Reference has been made to the Court of Justice of the
binding upon each Member State to which they are                          European Communities by order of the Pretura
addressed . The Hellenic Republic has not yet adopted the                 Circondariale di Roma ( District Magistrates ' Court, Rome ),
measures necessary to incorporate the relevant directive                  Tivoli Division, of 21 February 1996 , which was received at
fully into Greek law.                                                     the Court Registry on 26 March 1996 , for a preliminary
                                                                          ruling in the criminal proceedings pending before that court
                                                                          against Italia Testa on the following questions:
C ) OJ No L 62 , 1993 , p . 1 .
( 2 ) OJ, English Special Edition 1971 , p . 106 .
                                                                          A. May the national legislation conferring on the SIAE (')
                                                                                the exclusive right to manage copyright impede or
                                                                                prevent the import or export of sound recordings which
                                                                                have been lawfully marketed in another State ?
References for a preliminary ruling by the Tribunal de                    B. In the context of the single market, characterized by the
Commerce de Marseille by judgments of that court of                             free movement of goods and the freedom to provide
1 March 1996 in the case of URSSAF des Bouches
                                                                                services, may the SIAE require payments in all cases and
du-Rhône against Clinique de la Pointe Courte SA,                               circumstances on behalf of authors, relying on recourse
intervener: Jean Chouraqui ( C-95/96 ) and in the case of                       to criminal proceedings in order to give effect to that
URSSAF des Bouches-du-Rhône against Clinique Florens                            power and enforce its claims ?
           SA, intervener: Jean Chouraqui ( C-96/96 )
                  ( Cases C-95/96 and C-96/96 )
                                                                          C. Is the legislation and the national case-law referred to by
                            ( 96/C 158/05 )                                     the SIAE in its application to join the proceedings as a
                                                                                party claiming damages liable to give rise to arbitrary
Reference has been made to the Court of Justice of the                          discrimination or a disguised restriction of trade, into
European Communities by judgments of the Tribunal de                            and out of Italy, in relation to the commercial


Important legal notice

|

E1998P0005

Request for an advisory opinion from the EFTA Court by Hæstiréttur Íslands (Supreme Court of Iceland) by decision of that court of 26 June 1998 in the case of Fagtún ehf. v. Byggingarnefnd Borgarholtsskóla and others (Case E-5/98)

Official Journal C 331 , 29/10/1998 P. 0025 - 0025

Request for an advisory opinion from the EFTA Court by Hæstiréttur Íslands (Supreme Court of Iceland) by decision of that court of 26 June 1998 in the case of Fagtún ehf. v. Byggingarnefnd Borgarholtsskóla and others (Case E-5/98) (98/C 331/11)A request has been made to the EFTA Court by decision of 26 June 1998 of Hæstiréttur Íslands (Supreme Court of Iceland), Iceland, which was received at the Court Registry on 29 June 1998, for an advisory opinion in the case of Fagtún ehf. v. Byggingarnefnd Borgarholtsskóla and others, on the following questions:1. Does Article 4 of the EEA Agreement prohibit the inclusion in a works contract of a provision to the effect that roof elements are to be produced in Iceland?2. Does Article 11 of the EEA Agreement prohibit such a


               11.3.2006

               EN

               Official Journal of the European Union

               C 60/32

         Removal from the register of Case C-461/04 (1)

   (2006/C 60/64)

      (Language of the case: Dutch)

   By order of 16 November 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-461/04: Commission of the European Communities v Kingdom of the Netherlands.

      (1)  OJ C 314 of 18.12.2004.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 11 December 1997 in Case C-42/96 (reference for a preliminary ruling from the Tribunale Civile e Penale di Venezia): Società Immobiliare SIF SpA v. Amministrazione delle Finanze dello Stato (Directive 69/335/EEC - Contribution of immovable property)

text:
C 55/6                EN                  Official Journal of the European Communities                                      20.2.98
EEC, must be interpreted as not precluding a tax such as                  raising of capital, as amended by Council Directive
the regional charge on vehicle registration certificates.                 73/79/EEC of 9 April 1973 varying the field of
                                                                          application of the reduced rate of capital duty
                                                                          provided for in respect of certain company
(1) OJ C 64, 2.3.1996.
                                                                          reconstruction operations by Article 7(1)(b) of the
                                                                          Directive concerning indirect taxes on the raising of
                                                                          capital, by Council Directive 73/80/EEC of 9 April
                                                                          1973 fixing common rates of capital duty, by Council
                                                                          Directive 74/553/EEC of 7 November 1974 amending
                                                                          Article 5(2) of Directive 69/335/EEC, and by Council
                                                                          Directive 85/303/EEC of 10 June 1985 amending
               JUDGMENT OF THE COURT                                      Directive 69/335/EEC, does not apply to a national
                                                                          tax on any appreciation in the value of immovable
                       (Sixth Chamber)
                                                                          property, determined at the time when such property
                    of 11 December 1997                                   was contributed to a capital company. However,
                                                                          Directive 69/335/EEC, as amended, does apply to the
in Case C-42/96 (reference for a preliminary ruling from                  registration charge, the mortgage registration fee and
the Tribunale Civile e Penale di Venezia): SocietaÁ                       the Land Register fee.
Immobiliare SIF SpA v. Amministrazione delle Finanze
                         dello Stato (1)
                                                                     2. On a proper construction, Article 12 of Directive 69/
(Directive 69/335/EEC Ð Contribution of immovable                         335/EEC, as amended, authorises Member States,
                           property)                                      notwithstanding the prohibition laid down in
                         (98/C 55/09)                                     Article 10 thereof, to charge, in connection with an
                                                                          increase in the capital of a capital company brought
                                                                          about by the contribution of immovable property,
                                                                          taxes such as the registration charge, the mortgage
                (Language of the case: Italian)
                                                                          registration fee and the Land Register fee, provided
                                                                          that such taxes do not exceed those applicable to like
                                                                          transactions in the Member State charging them.
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)                    (1) OJ C 108, 13.4.1996.
In Case C-42/96: reference to the Court under Article 177
of the EC Treaty from the Tribunale Civile e Penale (Civil
and Criminal District Court), Venice (Italy), for a
preliminary ruling in the proceedings pending before that
court between SocietaÁ Immobiliare SIF SpA and                                       JUDGMENT OF THE COURT
Amministrazione delle Finanze dello Stato Ð on the                                          (Fifth Chamber)
interpretation of Council Directive 69/335/EEC of 17 July
1969 concerning indirect taxes on the raising of capital                                 of 11 December 1997
(OJ, English Special Edition 1969 (II), p. 412), as                  in    Case C-83/97: Commission of the European
amended by Council Directive 73/79/EEC of 9 April 1973                      Community v. Federal Republic of Germany (1)
varying the field of application of the reduced rate of
capital duty provided for in respect of certain company              (Failure to fulfil obligations Ð Failure to transpose
reconstruction operations by Article 7(1)(b) of the                                      Directive 92/43/EEC)
Directive concerning indirect taxes on the raising of
                                                                                (98/C 55/10)
capital (OJ L 103, 18.4.1973, p. 13), by Council Directive
73/80/EEC of 9 April 1973 fixing common rates of capital
duty (OJ L 103, 18.4.1973, p. 15), by Council Directive                              (Language of the case: German)
74/553/EEC of 7 November 1974 amending Article 5(2)
of Directive 69/335/EEC (OJ L 303, 3.11.1974, p. 9), and
by Council Directive 85/303/EEC of 10 June 1985
                                                                       (Provisional translation; the definitive translation will be
amending Directive 69/335/EEC (OJ L 156, 15.6.1985,
                                                                               published in the European Court Reports)
p. 23) Ð the Court (Sixth Chamber), composed of: H.
Ragnemalm (Rapporteur), President of the Chamber, G. F.
Mancini and G. Hirsch, Judges; G. Cosmas, Advocate-                  In Case C-83/97: Commission of the European
General; L. Hewlett, Administrator, for the Registrar, has           Communities (Agent: Götz zur Hausen) v. Federal
given a judgment on 11 December 1997, in which it has                Republic of Germany (Agents: Ernst Röder and Bernd
ruled:                                                               Kloke) Ð application for a declaration that, by failing to
                                                                     adopt within the prescribed period the laws, regulations
                                                                     and administrative provisions necessary to comply with
1. On a proper construction, Council Directive 69/335/               Council Directive 92/43/EEC of 21 May 1992 on the
     EEC of 17 July 1969 concerning indirect taxes on the            conservation of natural habitats and of wild fauna and


title: Judgment of the Court of First Instance of 17 December 2003 in Case T-133/02: Pravir Kumar Chawdhry v Commission of the European Communities (Member of the temporary staff — Post paid from appropriations to the research budget — Grading)

text:
20.3.2004               EN                           Official Journal of the European Union                                               C 71/25
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  (France), represented by N. Lhoëst, lawyer, with an address for
                                                                             service in Luxembourg, against Commission of the European
                      of 17 December 2003                                    Communities (Agents: J. Currall and F. Clotuche-Duvieusart)
                                                                             — application for annulment of the Commission’s decision
                                                                             rejecting the applicant’s application for regrading in the higher
in Case T-133/02: Pravir Kumar Chawdhry v Commission                         grade of his career bracket of recruitment — the Court of First
                of the European Communities (1)                              Instance (Single Judge: H. Legal); I. Natsinas, Administrator,
                                                                             acting for the Registrar, has given a judgment on 10 December
(Member of the temporary staff — Post paid from appropri-                    2003, in which it:
            ations to the research budget — Grading)
                           (2004/C 71/44)                                    1.    annuls the Commission’s decision of 27 July 2001 rejecting
                                                                                the applicant’s application for regrading in the higher grade of
                                                                                his career bracket of recruitment;
                    (Language of the case: French)
                                                                             2.    orders the Commission to pay all the costs.
In Case T-133/02: Pravir Kumar Chawdhry, a member of
the temporary staff of the Commission of the European                        (1) OJ C 219 of 14.9.2002.
Communities, residing in Sangiano (Italy), represented by
G. Vandersanden and L. Levi, lawyers, with an address for
service in Luxembourg, against Commission of the European
Communities (Agents: J. Currall and V. Joris) — application
for, first, annulment of the Commission’s decision grading the
applicant in Grade A 6, Step 3, and, secondly, compensation
in respect of harm suffered – the Court of First Instance (Single
Judge: J. Pirrung); J. Plingers, Administrator, acting for the
Registrar, has given a judgment on 17 December 2003, in
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
which it:
1.    dismisses the application;                                                                    of 3 December 2003
2.    orders the Commission to bear its own costs and to pay a
      quarter of the applicant’s costs;                                      in Case T-305/02: Nestlé Waters France v Office for
                                                                             Harmonisation in the Internal Market (Trade Marks and
3.    orders the applicant to bear three quarters of his own costs.                                  Designs) (OHIM) (1)
(1) OJ C 156 of 29.6.2002.                                                   (Community trade mark — Three-dimensional mark —
                                                                             Shape of a bottle — Absolute grounds for refusal —
                                                                             Distinctive character — Article 7(1)(b) of Regulation (EC)
                                                                                No 40/94)
                                                                                (2004/C 71/46)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                      of 10 December 2003
in Case T-173/02: Pierre Tomarchio v Commission of the
                    European Communities (1)
                                                                             In Case T-305/02, Nestlé Waters France, established in Issy-
                                                                             les-Moulineaux (France), represented by A. Cléry, avocat, v
(Officials – Grading — Rejection of an application for                       Office for Harmonisation in the Internal Market (Trade Marks
   regrading under Article 31(2) of the Staff Regulations)                   and Designs) (OHIM) (Agents: A. Rassat and O. Waelbroeck):
                                                                             Application for annulment of the decision of the Fourth Board
                           (2004/C 71/45)                                    of Appeal of the Office for Harmonisation in the Internal
                                                                             Market (Trade Marks and Designs) of 12 July 2002 (Case
                    (Language of the case: French)                           R 719/2000-4) refusing to register a three-dimensional trade
                                                                             mark consisting of the shape of a transparent bottle, the Court
                                                                             of First Instance (Fourth Chamber), composed of: V. Tiili,
                                                                             President, P. Mengozzi and M. Vilaras, Judges; B. Pastor,
In Case T-173/02: Pierre Tomarchio, a former official of the                 Deputy Registrar, has given a judgment on 3 December 2003,
Commission of the European Communities, residing in Nancy                    in which it:


title: Case F-110/15: Action brought on 29 July 2015 — ZZ v Commission

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/36

         Action brought on 29 July 2015 — ZZ v Commission
   (Case F-110/15)
   (2015/C 328/34)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Application seeking annulment of the proposal to transfer the applicant’s pension rights into the EU pension scheme, which applies the new general provisions implementing Article 11(2) of Annex VIII to the Staff Regulations, and an order for the defendant to pay a provisional sum of one euro against the damage allegedly suffered.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               declare that Article 9 of the general provisions of 15 July 2011 implementing Article 11(2) of Annex VIII to the Staff Regulations is unlawful;

               —

               annul the decision of 10 March 2015 to credit the pension rights acquired by the applicant prior to his entry into service, in the context of the transfer of those rights into the pension scheme of the EU institutions, pursuant to the general provisions of 15 July 2011 implementing Article 11(2) of Annex VIII to the Staff Regulations;

               —

               in the alternative, order the European Commission to pay a provisional sum of one euro against the damage suffered by the applicant;

               —

               order the Commission to pay the costs.


title: Case C-375/07: Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 August 2007 — Staatssecretaris van Financiën v Heuschen & Schrouff Oriental Foods Trading BV

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/23

         Reference for a preliminary ruling from the Hoge Raad der Nederlanden (Netherlands) lodged on 3 August 2007 — Staatssecretaris van Financiën v Heuschen & Schrouff Oriental Foods Trading BV
   (Case C-375/07)
   (2007/C 269/45)
   Language of the case: Dutch
   Referring court
   Hoge Raad der Nederlanden
   Parties to the main proceedings

      Appellant: Staatssecretaris van Financiën

      Respondent: Heuschen & Schrouff Oriental Foods Trading BV
   Questions referred

               1.

               Do sheets as described in the annex to Commission Regulation (EC) No 1196/97 of 27 June 1997 (1) come under heading 1905 of the Combined Nomenclature if they are prepared from rice flour, salt and water and then dried, but do not undergo any heat treatment?

               2.

               In the light of the answer to Question 1, is Regulation (EC) No 1196/97 valid?

               3.

               Must Article 871 of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code [CCC] (2), as amended by Commission Regulation (EC) No 1677/98 of 29 July 1998 (3), be construed as meaning that if, under Article 871(1) thereof, there is an obligation on the customs authority to transmit a case to the Commission before it can decide to dispense with post-clearance recovery in that case, a national court ruling on an appeal by a tax debtor against the decision of the customs authority to proceed (in fact) with post-clearance recovery does not have the power to set aside that post-clearance recovery on the ground of its finding that the conditions laid down in Article 220(2)(b) for (mandatorily) setting aside post-clearance recovery are satisfied, where that finding is not supported by the Commission?

               4.

               If the answer to Question 3 should be that the fact that the Commission has the power to take a decision in regard to demands for post-clearance recovery of customs duties does not involve any limitation on the jurisdiction of national courts which are called on to rule in an appeal concerning a demand for post-clearance recovery of customs duties, does Community law contain any separate provision which guarantees uniform application of Community law in the specific case where there is a discrepancy between the views of the Commission and those of the national court concerning the criteria to be applied in the context of Article 220 of the CCC (4) for the purpose of determining whether a mistake on the part of the customs authority could have been detected by a tax debtor?

      (1)  Regulation concerning the classification of certain goods in the Combined Nomenclature (OJ 1997 L 170, p. 13).

      (2)  OJ 1993 L 253, p. 1.

      (3)  OJ 1998 L 212, p. 18.

      (4)  OJ 1992 L 302, p. 1.


title: ORDER OF THE COURT OF FIRST INSTANCE of 8 March 1995 in Case T-2/93 DEP: Société Anonyme à Participation Ouvrière Compagnie Nationale Air France v. Commission of the European Communities (Competition - Taxation of costs)

text:
3 . 6 . 95            EN                  Official Journal of the European Communities                               No C 137/21
the EEC Treaty ( IV/3 1.553 — Welded steel mesh, OJ 1989 L                ORDER OF THE COURT OF FIRST INSTANCE
260, p. 1 ) — the Court of First Instance ( First Chamber ),                                 of 8 March 1995
composed of H. Kirschner, President, C. W. Bellamy, B.
Vesterdorf, R. Garcfa-Valdecasas and K. Lenaerts, Judges,            in Case T-2/93 DEP: Société Anonyme à Participation
H. Jung, Registrar, gave a judgment on 6 April 19 95 , in            Ouvrière Compagnie Nationale Air France v. Commission
which the Court :                                                                  of the European Communities (*)
                                                                                (Competition — Taxation of costs)
I. dismisses the application;                                                                   ( 95/C 137/52 )
2 . orders the applicant to pay the costs.                                          (Language of the Case: French)
(') OJ No C 306 , 5 . 12 . 1989 .                                    In Case T-2/93 : Societe Anonyme a Participation Ouvriere
                                                                     Compagnie Nationale Air France , established in Paris,
                                                                     represented by Eduard Marissens, of the Brussels Bar, with
                                                                     an address for service in Luxembourg at the Chambers of
                                                                     Lucy Dupong, 14a Rue des Bains, v. Commission of the
                                                                     European Communities ( Agents : F. E. Gonzalez Diaz and G.
                                                                     de Bergues ), supported by United Kingdom of Great Britain
 JUDGMENT OF THE COURT OF FIRST INSTANCE                             and Northern Ireland ( Agents : J. D. Colahan and C. Vajda ),
                       of 27 April 1995                              with an address for service in Luxemburg at the British
                                                                     Embassy, 14 Boulevard Roosevelt, TAT SA, established at
in Case T-443/93 : Casillo Grani snc v. Commission of the
                                                                     Tours ( France ), represented by Antoine Winckler, of the
                  European Communities ( l )                         Paris Bar, and Romano Subiotto, Solicitor, with an address
 (State aids — Applicant declared bankrupt — Interest in             for service in Luxembourg at the Chambers of Elvinger and
  bringing the proceedings — No need to give a decision)             Hoss, 15 Cote d'Eich, and Britisch Airways pic, established
                          (9 SIC 137/51 )                            at Hounslow (United Kingdom ), represented by William
                                                                     Allan and James E. Flynn, Solicitor, with an address for
                                                                     service in Luxembourg at the Chambers of Loesch and
                (Language of the case: Italian)                      Wolter, 11 Rue Goethe — application for taxation of the
                                                                     costs payable by the applicant to the intervener TAT SA
In Case T-443/93 : Casillo Grani snc , established in San            pursuant to the judgment of the Court of 19 May 1994 in
Giuseppe Vesuviano, Italy, represented by Mario Siragusa,            Case T-2/93 Air France v. Commission [ 1994] ECR 11-323
Maurizio D'Albora and Giuseppe Scassellati-Sforzolini,               — the Court of First Instance ( Second Chamber, extended
respectively of the Bars of Rome , Naples and Bologna, with          composition ), composed of B. Vesterdorf, President, and
an address for service in Luxembourg at the Chambers of              D. P. M. Barrington, A. Saggio, H. Kirschner and A.
Ernest Arendt, 8— 10 Rue Mathias Hardt v. Commission of              Kalogeropoulos , Judges; H. Jung, Registrar, made an order
the European Communities ( Agents : M. Nolin, D. Calleja y           on 6 March 1995 , the operative part of which is as
                                                                     follows :
Crespo and R. Lyal ), supported by Italgrani SpA,
established in Naples, Italy, represented by Aurelio
Pappalardo , of the Trapani Bar, Luigi Sico and Felice                The total costs payable by the applicant to the intervener
Casucci , of the Naples Bar, Massimo Annesi and Massimo               TAT SA are fixed in the sum of FF 220 000.
Merola, of the Rome Bar with an address for service in
                                                                      (') OJ No C 45 , 17 . 2 . 1993 .
Luxembourg at the Chambers of Alain Lorang, 51 Rue
Albert l er — application for the annulment of Commission
Decision No 91/474/EEC of 16 August 1991 concerning
aids granted by the Italian Government to Italgrani SpA for
the setting up of an agri-foodstuffs complex in the
Mezzogiorno ( OJ 1991 L 254, p. 14 ) — the Court of First                           ORDER OF THE PRESIDENT
Instance ( Second Chamber, extended composition ),                             OF THE COURT OF FIRST INSTANCE
composed of B. Vesterdorf, President, D. P. M. Barrington,                                 of 24 February 1995
A. Saggio, H. Kirschner and A. Kalogeropoulos, Judges, J.
Palacio Gonzalez, Administrator, for the Registrar, has              in Case T-2/95 R: Industrie des Poudres Sphériques v.
given a judgment on 27 April 1995 , in which it:                                    Council of the European Union
                                                                                ( 95/C 137/53 )
 1 . ordered Case T-443/93 to be removed from the
      Register;                                                                      (Language of the case: French)
 2 . ordered the applicant to bear the costs including those         In Case T-2/95 R: Industrie des Poudres Spheriques,
      incurred by the intervener.                                    Annemasse ( France ), represented by Chantal Momege, of
                                                                     the Paris Bar, with an address for service in Luxembourg at
 (M OJ No C 47, 21 . 2 . 1992 .
                                                                     the Chambers of Alex Schmitt, 62 Avenue Guillaume, v.
                                                                      Council of the European Union (Agents : R. Torrent, J.
                                                                     Monteiro and P. Bentley) — application for suspension of
                                                                     the operation, in so far as concerns the applicant, of Council


title: Case T-203/02: Action brought on 2 July 2002 by The Sunrider Corporation against the Office for Harmonisation in the Internal Market

text:
C 233/26              EN                      Official Journal of the European Communities                                      28.9.2002
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the decision of the Commission of 25 February                —      annul the Commission’s decision of 27 July 2001 refusing
      2002 imposing on the applicant the penalty provided for                   to classify the applicant in the higher grade of his career
      in Article 86(2)(f) of the Staff Regulations, namely                      bracket in accordance with Article 31(2) of the Staff
      removal from post without loss of entitlement to pension;                 Regulations;
—     annul any connected and/or subsequent decision;                    —      annul, in so far as is necessary, the express decision
                                                                                adopted by the Court of Auditors on 26 February 2002
—     order the Commission to pay to the applicant                              in which it rejected the complaint submitted by the
      EUR 12 500 by way of compensation for non-material                        applicant pursuant to Article 90(2) of those regulations;
      damage;
                                                                         —      order the Court of Auditors to pay all the costs of these
—     order the Commission to pay the entire costs.                             proceedings.
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant was found guilty of a number of criminal                   The applicant in this case, a former official of the Commission
offences by the Cour d’Appel, Brussels. However, that court              and the Court of Auditors of the European Communities,
ordered a suspended sentence of 5 years subject to a number              contests the refusal of the appointing authority to classify him
of conditions in order to avoid affecting the applicant’s civic          in the higher grade of his career bracket at the time of his
status.                                                                  recruitment to grade B5 step 3, following his inclusion on the
                                                                         list of suitable candidates drawn up on the basis of competition
                                                                         No COM/B/340.
Subsequently, in view of the seriousness of the offences, the
Commission removed the applicant from his post without loss
of entitlement to pension.                                               In support of his claims, the applicant alleges that:
                                                                         —      substantive errors and manifest errors of assessment were
In support of his arguments, the applicant alleges lack of a                    made in respect of his professional qualifications, the
statement of reasons and breach of the rights of the defence.                   length and relevance of his professional experience with
Moreover, the applicant claims that the disciplinary measure is                 regard to the post to be filled, and the level of his
disproportionate to the seriousness of the effect of his conduct                remuneration in his successive positions;
on the institution and his work. Finally, the applicant alleges
infringement of Article 7 of Annex IX to the Staff Regulations.          —      the obligation to state reasons was not observed.
Action brought on 28 June 2002 by Pierre Tomarchio                       Action brought on 2 July 2002 by The Sunrider Corpor-
against the Court of Auditors of the European Communi-                   ation against the Office for Harmonisation in the Internal
                              ties                                                                     Market
                        (Case T-201/02)                                                           (Case T-203/02)
                        (2002/C 233/48)                                                           (2002/C 233/49)
                  (Language of the case: French)                                             (Language of the case: English)
An action against the Court of Auditors of the European                  An action against the Office for Harmonisation in the Internal
Communities was brought before the Court of First Instance               Market was brought before the Court of First Instance of the
of the European Communities on 28 June 2002 by Pierre                    European Communities on 2 July 2002 by The Sunrider
Tomarchio, residing in Nancy (France), represented by Nicolas            Corporation, represented by Mr Axel Kockläuner of Meissner,
Lhoëst, lawyer, with an address for service in Luxembourg.               Bolte & Partner in Munich, Germany.
 ---pagebreak--- 28.9.2002             EN                       Official Journal of the European Communities                                      C 233/27
A further party to the proceedings before the Board of Appeal             Grounds of claim:              —    Infringement of Article 43 of
was Juan Espadafor Caba, Granada, Spain.                                                                      Regulation 40/94 ( 1), since
                                                                                there was no satisfactory
                                                                                proof of the genuine use of
                                                                                the opposing trademark.
The applicant claims that the Court should:
                                                                                —    Infringement of Article 8 (1)
                                                                                b of Regulation 40/94 since
—     annul the Decision of the First Board of Appeal of the                                                  there is no danger of con-
      defendant dated 8 April 2002 in case R 1046/2000-1;                                                     fusion with regard to certain
                                                                                goods.
—     order the Office to bear the costs of the proceedings.
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ L 11, p. 1).
Pleas in law and main arguments
Applicant for the Com-        The applicant
munity trade mark:
The Community trade           The word mark ‘VITAFRUIT’ for
mark concerned:               certain goods in classes 5, 29 and
                                                                          Action brought on 10 July 2002 by Commune de Cham-
                              32 (a.o. beers, mineral and aerated         pagne and Others against Council of the European Union
                              waters and other non-alcoholic
                                                                                and Commission of the European Communities
                              drinks, fruit and vegetable drinks,
                              fruit juices; syrups and other prep-
                              arations for making beverages;
                              herbal and vitamin beverages)                                         (Case T-212/02)
Proprietor of the right to    Juan Espadafor Caba                                                   (2002/C 233/50)
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                                                (Language of the case: French)
Trade mark or sign            The national mark ‘VITAFRUT’
asserted by way of oppo-      for goods in classes 30 and 32
sition in the opposition      (a.o. non-alcoholic and non-thera-
proceedings:                  peutic carbonic drinks, fruit and           An action against the Council of the European Union and the
                              vegetable juices without fermen-            Commission of the European Communities was brought
                              tation, lemonades, orangeades,              before the Court of First Instance of the European Communities
                              cold beverages, soda water)                 on 10 July 2002 by Commune de Champagne and Others,
                                                                          Canton de Vaud (Switzerland), represented by Denis Wael-
                                                                          broeck, lawyer.
Decision of the Oppo-         Upheld opposition insofar as it
sition Division:              was based on the goods ‘fruit and
                              vegetable juices without fermen-
                              tation, lemonades, orangeades’              The applicant claims that the Court should:
                              and insofar as it was directed
                              against the goods ‘mineral and
                              aerated waters and other non-               —     annul Article 1 of Decision 2002/309/EC, Euratom
                              alcoholic drinks, fruit and veg-                  Decision of the Council and of the Commission as
                              etable drinks, fruit juices; syrups               regards the Agreement on Scientific and Technological
                              and other preparations for mak-                   Cooperation, of 4 April 2002 on the conclusion of seven
                              ing beverages; herbal and vitamin                 Agreements with the Swiss Confederation in so far as
                              beverages’.                                       the Council and the Commission thereby approved
                                                                                Article 5(8) of Title II of Annex 7 to the Agreement
                                                                                between the European Community and the Swiss Confed-
Decision of the Board of      Dismissal of the appeal by the                    eration on Trade in Agricultural Products (‘the Cham-
Appeal:                       applicant.                                        pagne Clause’);


title: JUDGMENT OF THE COURT of 7 May 1998 in Case C-401/96 P: Somaco Sàrl v Commission of the European Communities (Appeals - Competition - No anti-competitive conduct in Martinique by reason of irresistible pressure on the part of the local administration - Distortion of evidence)

text:
C 234/2                EN                Official Journal of the European Communities                                      25.7.98
                JUDGMENT OF THE COURT                               3. Orders the United Kingdom of Great Britain and
                                                                         Northern Ireland to bear its own costs.
                        (Sixth Chamber)
                         of 7 May 1998                              (1) OJ C 158 of 1.6.1996.
in Case C-124/96: Commission of the European
Communities v Kingdom of Spain, supported by United
     Kingdom of Great Britain and Northern Ireland (1)
(Failure of a Member State to fulfil its obligations Ð Sixth
Council Directive 77/388/EEC Ð Exemption of certain
supplies of services closely linked to sport or physical
              education Ð Unjustified restrictions)                                JUDGMENT OF THE COURT
                                                                                of 7 May 1998
                         (98/C 234/02)
                                                                    in Case C-401/96 P: Somaco SaÁrl v Commission of the
                                                                                European Communities (1)
                (Language of the case: Spanish)                     (Appeals Ð Competition Ð No anti-competitive conduct
                                                                    in Martinique by reason of irresistible pressure on the part
                                                                        of the local administration Ð Distortion of evidence)
                                                                                (98/C 234/03)
 (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                                (Language of the case: French)
In Case C-124/96: Commission of the European
Communities (Agents: Enrico Traversa and Francisco
Enrique GonzaÂlez Díaz) v Kingdom of Spain (Agent: Luis               (Provisional translation; the definitive translation will be
PeÂrez de Ayala Becerril), supported by United Kingdom of                     published in the European Court Reports)
Great Britain and Northern Ireland (Agent: Lindsey
Nicoll, assisted by Sarah Moore) Ð application for a
declaration that, by providing that VAT exemption for
services closely linked to sport or physical education              In Case C-401/96 P: Somaco SaÁrl, having its registered
applied only to private establishments whose membership             office in Fort-de-France (France), represented by Jean-
fees did not exceed a specified amount, the Kingdom of              Claude Fourgoux, of the Paris Bar, with an address for
Spain infringed Article 13(A)(1)(m) of the Sixth Council            service in Luxembourg at the Chambers of Pierrot Schiltz,
Directive 77/388/EEC of 17 May 1977 on the                          4 Rue BeÂatrix de Bourbon, against the judgment of the
harmonisation of the laws of the Member States relating             Court of First Instance of the European Communities
to turnover taxes Ð Common system of value added tax:               (Fourth Chamber, Extended Composition) of 18 September
uniform basis of assessment (OJ L 145 of 13.6.1977, p. 1)           1996 in Case T-387/94 Asia Motor France v Commission
Ð the Court (Sixth Chamber), composed of: H.                        [1996] ECR II-961, seeking to have that judgment set
Ragnemalm, President of the Chamber, G. F. Mancini,                 aside, the other party to the proceedings being the
P. J. G. Kapteyn (Rapporteur), J. L. Murray and K. M.               Commission of the European Communities, represented
Ioannou, Judges; A. La Pergola, Advocate General; R.                by Berend Jan Drijber, assisted by HerveÂ Lehman, the
Grass, Registrar, has given a judgment on 7 May 1998, in            Court (Fifth Chamber), composed of: C. Gulmann,
which it:                                                           (Rapporteur), President of the Chamber, M. Wathelet,
                                                                    D. A. O. Edward, P. Jann and L. Sevón, Judges;
                                                                    G. Tesauro, Advocate General; R. Grass, Registrar, has
                                                                    given a judgment on 7 May 1998, in which it:
1. Declares that, by providing that the exemption from
     value added tax in respect of supplies closely linked to
     sport or physical education applies only to private
     establishments whose membership fees do not exceed             1. Dismisses the appeal;
     a certain amount, the Kingdom of Spain has failed to
     fulfil its obligations under Article 13(A)(1)(m) of the
     Sixth Council Directive 77/388/EEC of 17 May 1977
     on the harmonisation of the laws of the Member                 2. Orders Somaco SaÁrl to pay the costs.
     States relating to turnover taxes Ð Common system of
     value added tax: uniform basis of assessment.                  (1) OJ C 54 of 22.2.1997.
2. Orders the Kingdom of Spain to pay the costs.


title: Case C-172/07: Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/11

         Reference for a preliminary ruling from the Verwaltungsgericht des Saarlandes (Germany) lodged on 30 March 2007 — Helga Neumann-Seiwert v Saarland and Ministerium für Justiz, Gesundheit und Soziales, intervening party: DocMorris N.V.
   (Case C-172/07)
   (2007/C 140/19)
   Language of the case: German
   Referring court
   Verwaltungsgericht des Saarlandes
   Parties to the main proceedings

      Claimant: Helga Neumann-Seiwert

      Defendants: Saarland and Ministerium für Justiz, Gesundheit und Soziales

      Joined party: DocMorris N.V
   Questions referred

               1.

               Are the provisions concerning freedom of establishment for capital companies (Articles 43 and 48 EC) to be interpreted as precluding a prohibition on foreign ownership of pharmacies, as provided for by Paragraph 2(1)(1) to (4) and (7), the first sentence of Paragraph 7 and the first sentence of Paragraph 8 of the Gesetz über das Apothekenwesen — ApoG — (Law on Pharmacies) of 15 October 1980 (BGBl. I, p. 1993), as amended most recently by Article 34 of the Regulations of 31 October 2006 (BGBl. I, p. 2407)?

               2.

               If the first question is answered in the affirmative:
               Having regard in particular to Article 10 EC and to the principle of effectiveness of Community law, is a national authority entitled and obliged to disapply national provisions it regards as contrary to Community law even if there is no clear breach of Community law and it has not been established by the Court of Justice of the European Communities that the relevant provisions are incompatible with Community law?


title: Case C-612/10: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse

text:
               2.4.2011

               EN

               Official Journal of the European Union

               C 103/11

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 23 December 2010 — Jaroslaw Wawrzyniak v Agentur für Arbeit Mönchengladbach — Familienkasse
   (Case C-612/10)
   2011/C 103/20
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Jaroslaw Wawrzyniak

      Defendant: Agentur für Arbeit Mönchengladbach — Familienkasse

      Questions referred

               1.

               Must Article 14(1)(a) of Regulation No 1408/71 (1) be interpreted as meaning that it deprives a Member State, which under that provision is not the competent Member State, on whose territory a worker is posted and which is also not the Member State of residence of the worker’s children of the right to grant family benefits to the posted worker at any rate where that worker does not suffer any legal disadvantage as a result of his posting to that Member State?

               2.

               If the answer to the first question is in the negative:
               Must Article 14(1)(a) of Regulation No 1408/71 be interpreted as meaning that under all circumstances a State which is not the competent Member State on whose territory a worker is posted has the right to grant family benefits only where it has been determined that in the other Member State no entitlement to comparable family benefits exists?

               3.

               If the answer to that question is also in the negative:
               Do Community law or European Union law provisions preclude a provision of national law such as the first part of point 2 of Paragraph 65(1) of the EStG in conjunction with Paragraph 65(2) of the EStG which excludes entitlement to family benefits where a comparable benefit is paid outside Germany or would be due if an application to that effect were made?

               4.

               If the answer to that question is in the affirmative:
               How should the overlap thus arising between the entitlement in the competent State which is also the Member State of residence of the children and the entitlement in the State which is neither the competent State nor the State of residence of the children be resolved?

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


title: Case T-141/02: Action brought on 3 May 2002 by Vetoquinol AG (formerly Chassot AG) against the Office for Harmonisation in the Internal Market

text:
13.7.2002              EN                    Official Journal of the European Communities                                       C 169/41
Action brought on 2 May 2002 by Sportwetten GmbH                        Decision of Board of          Dismissal of applicant’s appeal
Gera against the Office for Harmonisation in the Internal               Appeal:
              Market (Trade Marks and Designs)
                                                                        Pleas in law:                 —     The registered trade mark
                                                                                designates services prohibit-
                         (Case T-140/02)
                                                                                ed in Germany
                                                                                —     The use of the trade mark
                         (2002/C 169/72)                                                                    for the services in respect
                                                                                of which it is registered is
                                                                                contrary to public policy and
(Language of the case to be determined pursuant to Article 131(2)                                           accepted      principles    of
of the Rules of Procedure — language in which the application was                                           morality      pursuant      to
                        submitted: German)                                                                  Article 7(1)(f) of Regulation
                                                                                (EC) No 40/94 (1).
                                                                                —     The Office failed to take
An action against the Office for Harmonisation in the Internal                                              account of the requirement
Market (Trade Marks and Designs) was brought before the                                                     as to use and the significance
Court of First Instance of the European Communities on 2 May                                                of Article 106(2) of the
2002 by Sportwetten GmbH Gera, residing in Gera (Germany),                                                  Regulation.
represented by A. Zumschlinge, lawyer.
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Intertops Sportwetten GmbH, Salzburg (Austria), was an                      Community trade mark (OJ 1994 L 11, p. 1).
additional party to the proceedings before the Board of Appeal.
The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal of the
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) of 21 February 2002 in appeal                  Action brought on 3 May 2002 by Vetoquinol AG
      no R 0338/2000-4 and the initial decision of the Office           (formerly Chassot AG) against the Office for Harmonis-
      for Harmonisation in the Internal Market of 2 February                             ation in the Internal Market
      2000, ref.: C000422014/1;
                                                                                (Case T-141/02)
—     declare the Community trade mark with registration
      no 000422014, the word and figurative mark ‘Intertops’,
      void.                                                                                (2002/C 169/73)
                                                                                (Language of the case: English)
Pleas in law and main arguments
                                                                        An action against the Office for Harmonisation in the Internal
Registered trade mark in      Figurative mark ‘INTERTOPS’ for
                                                                        Market was brought before the Court of First Instance of the
respect of which a dec-       services in Class 42 — Com-
                                                                        European Communities on 3 May 2002 by Vetoquinol AG
laration of nullity is        munity trade mark 422014
                                                                        (formerly Chassot AG), represented by Mr Axel Kockläuner of
sought:
                                                                        Meissner, Bolte & Partner, Munich (Germany).
Proprietor of the Com-        Intertops Sportwetten GmbH
munity trade mark:
                                                                        A further party before the Board of Appeal was VETO-Centre.
Party applying for a dec-     The applicant
laration of nullity of the
Community trade mark:                                                   The applicant claims that the Court should:
Trade mark or sign right      The German word mark                      —    annul the Decision of the First Board of Appeal of the
of applicant:                 ‘INTERTOPS SPORTWETTEN’ for                    defendant dated 15 February 2002 in case no R 218/
                              services in Class 42                           2001 (‘the contested Decision’);
Decision of Cancellation      Dismissal of application                  —    order that the costs of the proceedings be borne by the
Division:                                                                    defendant.
 ---pagebreak--- C 169/42              EN                      Official Journal of the European Communities                                     13.7.2002
Pleas in law and main arguments                                          The applicant claims that the Court should:
                                                                         —     annul the Commission’s decision dated 22 January 2001;
Applicant for the Com-       The applicant
munity trade mark:
                                                                         —     order the Commission to compensate the applicants for
                                                                               their loss of earnings and other benefits caused by the
The Community trade          Verbal mark ‘BIO-CANISAN’ —
                                                                               breaches of Community law;
mark concerned:              Application No 353 896, relating
                             to goods in classes 5 and 31
                             (veterinary preparations and food-          —     order the Commission to pay the applicants’ costs.
                             stuffs for animals)
Proprietor of the right to   VETO-Centre                                 Pleas in law and main arguments
the trade mark or sign
asserted by way of oppo-
sition in the opposition                                                 The applicants all worked in the JET Project as employees or
proceedings:                                                             contractors to UK registered companies. According to the
                                                                         applicants, however, they should have been recruited by the
Trade mark or sign           French trade marks No 1582968               Commission as temporary agents since they were part of the
asserted by way of oppo-     ‘biocanina ’(word and device),              JET Project Team.
sition in the opposition     relating to goods in classes 5 and
proceedings:                 31, and No 1350892 ‘BIOCANI-
                             NA’), relating to goods in class 5          The applicants claim that the failure of the Commission to
                                                                         recruit the applicants as temporary agents was contrary the
Decision of the Oppo-        Refusal of the application                  JET statutes and constitutes an act ultra vires. According to the
sition Division:                                                         applicants, the JET statutes did not provide for the possibility
                                                                         of engaging staff who were working in the JET Project Team
Decision of the Board of     Dismissal of the appeal                     through external contractors.
Appeal:
Grounds of claim:            Infringement of Article 43(2),              Furthermore, the applicants claim that the Commission dis-
                             third sentence, and Article 8(1)(b)         criminated against them since this resulted in the applicants
                             of Regulation (EC) No 40/94.                being treated in a less favourable manner then those employed
                                                                         by the Commission who were fulfilling substantially similar
                                                                         roles in the JET Project.
Action brought on 7 May 2002 by Richard J. Eagle, John
G. Fanthome, Martin Gardener, Robert C. Walton, David                    Action brought on 15 May 2002 by Sunrider Corporation
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,                against the Office for Harmonisation in the Internal
Robert Felton, Carol Brickley, TF Atkins, Michael George                               Market (Trade Marks and Designs)
Grant and Edward Junger against the Commission of the
                   European Communities                                                           (Case T-156/02)
                        (Case T-144/02)                                                           (2002/C 169/75)
                        (2002/C 169/74)                                  (Language of the case to be determined pursuant to Article 131(2)
                                                                         of the Rules of Procedure — language in which the application was
                                                                                submitted: German)
                  (Language of the case: English)
                                                                         An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                Market (Trade Marks and Designs) was brought before the
ties was brought before the Court of First Instance of the               Court of First Instance of the European Communities on
European Communities on 7 May 2002 by Richard J. Eagle,                  15 May 2002 by Sunrider Corporation, Torrance (USA),
John G. Fanthome, Martin Gardener, Robert C. Walton, David               represented by A. Kockläuner, lawyer.
Sands, Alexander Gaberscik, Beryl Marrs, Clifford Marren,
Robert Felton, Carol Brickley, TF Atkins, Michael George Grant
and Edward Junger, represented by Mr Daniel Beard of                     Frieslands Brands B.V., Leeuwarden (the Netherlands) was an
Monckton Chambers, London (United Kingdom).                              additional party to the proceedings before the Board of Appeal.


title: Case T-387/08: Action brought on 1 September 2008 — Evropaïki Dynamiki v Office for Official Publications of the European Communities

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/49

         Action brought on 1 September 2008 — Evropaïki Dynamiki v Office for Official Publications of the European Communities
   (Case T-387/08)
   (2008/C 301/83)
   Language of the case: English
   Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

      Defendant: Office for Official Publications of the European Communities
   Form of order sought

               —

               Annul the decision of the Office for Official Publications of the European Communities (OPOCE) to reject the bid of the applicant, filed in response to open Call for Tender AO 10185 for ‘Computing Services — maintenance of the SEI-BUD/AMD/CR systems and related services’ (OJ 2008/S 43-058884) communicated to the applicant by letter dated 20 June 2008 and to award the contract to the successful contractor;

               —

               Order OPOCE to pay the applicant's damages suffered on account of the tendering procedure in question in the amount of EUR 1 444 930;

               —

               Order OPOCE to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected.

         Pleas in law and main arguments
   In the present case the applicant seeks the annulment of the defendant's decision to reject its bid submitted in response to a call for an open tender AO 10185 regarding the ‘Computing Services — maintenance of the SEI-BUD/AMD/CR systems and related services’ and to award the contract to the successful contractor. The applicant further requests compensation for the alleged damages on account of the tendering procedure.
   In support of its claims the applicant argues that by awarding the aforementioned tender to another bidder the defendant failed to comply with its obligations foreseen in the financial regulation (1), its implementing rules and Directive 2004/18/EC (2) as well as with the principles of transparency, equal treatment and proportionality.
   The applicant moreover submits that the contracting authority infringed its obligation, foreseen in the above mentioned applicable rules, to sufficiently state reasons for its decision. Furthermore, the applicant alleges that the contracting authority used the criteria that were not expressively included in the call for tender, mixed evaluation with award criteria, therefore infringing the tender specifications, and committed several manifest errors of assessment which resulted in the rejection of the applicant's bid.
   The applicant requests, hence, that the decision to reject its bid and to award the contract to the successful tenderer be annulled and that the defendant is ordered to pay, in addition to the applicant's legal expenses related to the proceedings, the damages suffered by the applicant on account of the tendering procedure.

      (1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ L 248, p. 1).

      (2)  Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ L 134, p. 114).