title: Case C-492/03: Action brought on 20 November 2003 (fax on 13 November 2003) by the Republic of Austria against the Commission of the European Communities

text:
C 21/20                EN                       Official Journal of the European Union                                       24.1.2004
—     Order the kingdom of Spain to pay the costs.                      Action brought on 19 November 2003 by Commission of
                                                                           the European Communities against Kingdom of Spain
                                                                                (Case C-490/03)
Pleas in law and main arguments
                                                                                (2004/C 21/38)
The pleas in law and main arguments are the same as in Case
C-485/03.
                                                                        An action against the Kingdom of Spain was brought before
                                                                        the Court of Justice of the European Communities on 19 No-
                                                                        vember 2003 by Commission of the European Communities,
                                                                        represented by José Luis Buendía Sierra of its Legal Service,
                                                                        acting as Agent, with an address for service in Luxembourg.
Action brought on 19 November 2003 by Commission of                     The applicant claims that the Court should:
  the European Communities against Kingdom of Spain
                                                                        —     declare that, by failing to adopt within the prescribed
                                                                              period all the measures necessary to comply with
                         (Case C-489/03)                                      Articles 2 and 3 of the Commission Decision of
                                                                              11.7.2001 relating to a State aid scheme applied by Spain
                                                                              to certain recently established firms in Vizcaya (notified
                          (2004/C 21/37)                                      under No C(2001)1763, or, in any event, by failing to
                                                                              notify the Commission of such provisions in accordance
                                                                              with Article 4, the Kingdom of Spain has failed to fulfil
                                                                              its obligations under that decision;
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 No-              —     Order the kingdom of Spain to pay the costs.
vember 2003 by Commission of the European Communities,
represented by José Luis Buendía Sierra of its Legal Service,
acting as Agent, with an address for service in Luxembourg.
                                                                        Pleas in law and main arguments
The applicant claims that the Court should:
                                                                        The pleas in law and main arguments are the same as in Case
—     declare that, by failing to adopt within the prescribed           C-485/03.
      period all the measures necessary to comply with
      Articles 2 and 3 of the Commission Decision of
      11.7.2001 relating to a State aid scheme applied by
      Spain to a number of recently created undertakings in
      Guipúzcoa (notified under No C(2001)1761) in the form
      of a tax credit of 45% of the investments made, or, in any
      event, by failing to notify the Commission of such
      provisions in accordance with Article 4, the Kingdom of           Action brought on 20 November 2003 (fax on 13 Novem-
      Spain has failed to fulfil its obligations under that             ber 2003) by the Republic of Austria against the Com-
      decision;                                                                     mission of the European Communities
—     Order the kingdom of Spain to pay the costs.
                                                                                (Case C-492/03)
                                                                                (2004/C 21/39)
Pleas in law and main arguments
The pleas in law and main arguments are the same as in Case             An action against the Commission of the European Communi-
C-485/03.                                                               ties was brought before the Court of Justice of the European
                                                                        Communities on 20 November 2003 (fax on 13 November
                                                                        2003) by the Republic of Austria, represented by Dr Harald
                                                                        Dossi, with an address for service in Luxembourg.
 ---pagebreak--- 24.1.2004              EN                        Official Journal of the European Union                                         C 21/21
The Republic of Austria claims that the Court should:                         —   Protection of the environment
1.    annul the Commission’s decision of 2 September 2003
      (C(2003) 3117 Final), rejecting the national provisions
      on banning the use of genetically modified organisms
      (GMOs) in Upper Austria notified by the Republic of                         The Oö. GTVG 2002 is a measure to protect and
      Austria pursuant to Article 95(5) EC (1);                                   preserve the natural environment, which includes
                                                                                the field of biodiversity in its widest sense. The
2.    order the Commission to pay the costs.                                      notified measure relates not only to the coexistence
                                                                                of conventional agricultural crop production and
                                                                                the farming of genetically modified crops, but also
                                                                                protects flora and fauna as a whole from impairment
                                                                                or elimination by GMOs. The Commission was
                                                                                under a duty to answer the question of whether the
Pleas in law and main arguments
                                                                                Oö. GTVG 2002 was necessary for the protection
                                                                                of the environment or the working environment. It
—     Infringement of essential procedural requirements                           failed to do so, as the issue of the compatibility
                                                                                (coexistence) of organic and conventional GMO-free
                                                                                crop production and naturally growing crops with
      —     Failure to observe the right to participate in the                    GMO farming on a wide scale was left out of its
            procedure and the right to a fair hearing                             assessement. The issue of coexistence was as a result
                                                                                impermissibly excluded from the Community law
            There was a failure to comply with the right to a fair                definition of the environment. This distinction con-
            hearing, as the Republic of Austria was not given                     stitutes an approach that cannot be understood, as
            the opportunity to submit observations on the                         the concept of the environment is neither materially
            content of or the conclusion reached in the Com-                      nor geographically restricted by the EC Treaty.
            mission’s decision before it was adopted. Matters                     In procedures under Directive 2001/18/EC (2), the
            relevant to a hearing in this case included not only                  notion of coexistence must plainly be taken into
            any observations submitted by Member States, but                      account in the context of the environmental assess-
            also the only crucial evidence referred to in the                     ment that is to be carried out. It is not possible to
            procedure, namely the opinion of the European                         separate the concepts of ‘environment’ and ‘coexist-
            Food Safety Authority (EFSA) of 4 July 2003. Had it                   ence’, as the Commission does, and their separation
            been possible to refute the opinion of the EFSA, a                    is arbitrary. Contrary to the Commission’s view, the
            different result might have been reached. As this                     concerns raised by the Republic of Austria regarding
            could not occur in the absence of prior notice of                     the question of coexistence of genetically modified
            the opinion, the decision-making process did not                      and unmodified cultivation clearly relate to specific
            comply with constitutional principles relating to                     environmental protection problems for the purposes
            proper procedure and there was accordingly a                          of Article 95(5) EC.
            breach of essential procedural requirements.
      —     Failure to observe the obligation to state reasons
            There are serious deficiencies in the reasoning
            contained in the decision. In it, the Commission
            referred to and described the content and aims of the
            Austrian draft Law (the Upper Austria Gentechnisch-               —   New scientific evidence
            Verbotgesetz (Law prohibiting genetic engineering)
            2002; ‘the Oö. GTVG 2002’) in general terms only.
            In particular, the Commission gave only peripheral
            consideration to the fact that the Law is to be
            applicable for only three years from its adoption. In
            view of the fact that the statement of reasons for a                  In reliance on the opinion of the EFSA, the Com-
            legal measure must deal with arguments and con-                       mission formed the view that the Müller Report, on
            cerns of the Member States which are clearly particu-                 which the Oö. GTVG 2002 is based, contains data
            larly important to them, the Commission’s approach                    which were for a large part available before the
            constitutes a gross infringement of the duty to state                 adoption of Directive 2001/18/EC. The Republic of
            reasons.                                                              Austria does not share this view. The decisive point
                                                                                is the finding in the Müller Report that organic and
                                                                                conventional GMO-free crop production in practice
—     Infringement of the Treaty or a requirement when                            cannot possibly coexist with GMO farming on a
      implementing it                                                             wide scale and therefore appropriate environmental
                                                                                protection cannot be achieved. The study, like
      In the opinion of the Republic of Austria, the draft Oö.                    any serious work, admittedly contains a grounded
      GTVG 2002 fulfils the requirements of Article 95(5) EC.                     scientific assessment of data that were partly already
 ---pagebreak--- C 21/22                EN                          Official Journal of the European Union                                        24.1.2004
           available, but this has no effect on its own value.             Reference for a preliminary ruling by the Cour d’appel de
           The decisive point is that the study itself contains            Bordeaux, chambre de l’instruction, by order of that
           new scientific evidence and conclusions and clearly             Court of 4 November 2003 in the case of Ministère public
           shows that a current risk of negative consequences                              against André Rochus Hiebeler
           for the environment, fauna and flora cannot be ruled
           out.
                                                                                (Case C-493/03)
     —     Problem specific to the Member State concerned
                                                                                (2004/C 21/40)
           The structure of the farming system in Upper
           Austria, demonstrably consisting of small farms,
           coupled with the constant increase in the proportion
           of organically managed areas and the number of
           organically run farming enterprises, means that the             Reference has been made to the Court of Justice of the
           character of this region of the Community is unique.            European Communities by order of the Cour d’appel de
                                                                           Bordeaux, chambre de l’instruction, (Examining Chamber of
           In the opinion of the Republic of Austria, the                  the Bordeaux Court of Appeal) of 4 November 2003, received
           additional requirement laid down by Article 95(5)               at the Court Registry on 24 November 2003, for a preliminary
           EC, that the problem which is specific to the                   ruling in the case of Ministère public against André Rochus
           Member State should have arisen only after the                  Hiebeler on the following questions:
           harmonisation measure has been adopted, has been
           fulfilled. The fact that concerns had arisen earlier in
           that regard does not preclude this. The decisive                —     Do the transportation and sale of the same quantity of
           point is that the full extent of the problem became                   drugs constitute different acts depending on whether
           apparent only after the adoption of the harmonis-                     these acts are committed in only one Member State or
           ation measure. Only on publication of the Müller                      from one Member State to another?
           study on 28 April 2002 was it possible to confirm
           the actual scope of the problem.                                —     Does the importation into a Member State of the same
                                                                                quantity of drugs and its transportation shortly thereafter
     —     Proportionality                                                       to another Member State constitute a single act or
                                                                                separate acts?
           The Oö. GTVG 2002 should be seen as a national
           provision which is necessary for the protection of              —     Does Article 54 of the Schengen Convention entitle a
           the environment and which, having regard to the                       Contracting State to which a request for extradition is
           fact that it is applicable for a limited period of three              addressed to accept a plea of ne bis in idem where the
           years, also falls to be classified as proportionate.                  requirements for the application of that principle are met,
                                                                                but where the final conviction on the basis of which it
     —     The precautionary principle and the principle that                    is sought to have the prosecution discontinued was
           preventive action should be taken                                     pronounced not in that State but in another Contracting
                                                                                State?
           The Oö. GTVG 2002 is a precautionary and preven-
           tive measure within the meaning of Article 174(2)
           EC. This provision states that Community policy on              —     Does the prohibition under Article 54 of the Schengen
           the environment is to aim at a high level of                          Convention preclude the enforcement of a judgment
           protection taking into account the diversity of                       imposing a penalty delivered in a Member State before
           situations in the various regions of the Community                    the coming into force of that Convention?
           and is to be based inter alia on the precautionary
           principle and the principle that preventive action              —     Does the offence of being a party to dealing in more than
           should be taken. The distinction drawn by the                         minimal quantities of drugs, laid down by and punishable
           Community legislature makes sense only if the                         under Paragraphs 30.I.4, 29.I(1), III(2)2 and 29.I.4, Para-
           terms ‘precaution’ and ‘prevention’ are each given a                  graph 3-I, 2-I, 1-I combined with Annex III of Para-
           separate meaning. ‘Precaution’ accordingly begins at                  graph 1-II of the German Law on drugs, in the version of
           a point in time at which a threat to the environment                  27 January 1987, and Paragraphs 25-II, 52 and 53 of the
           is not sufficiently precise for ‘preventive action’ to                Federal Criminal Code, protect the same legal interests as,
           be necessary in relation to it. The Oö. GTVG 2002                     or different legal interests from, those protected by the
           is clearly aimed at the avoidance of risks and is                     offence of the importation, unlawful possession and sale
           therefore justified by the precautionary principle.                   of more than minimal and partially substantial quantities
                                                                                of drugs, laid down by and punishable under Articles 71,
                                                                                72, 74(I)2, 74(II) and 75 of Italian Law No 685/75 of
(1) OJ L 230 of 16.9.2003, p. 34.                                                22 December 1975 and Articles 81, 56 and 110 of the
(2) OJ L 106 of 17.4.2001, p. 1.                                                 Italian Criminal Code?


title: Case C-522/03: Reference for a preliminary ruling by the Oberlandesgericht München by order of that Court of 24 June 2003 in the case of SA Scania Finance France against Rockinger Spezialfabrik für Anhängerkupplungen GmbH & Co.

text:
C 47/20                 EN                      Official Journal of the European Union                                          21.2.2004
Pleas in law and main arguments                                         Reference for a preliminary ruling by the High Court
                                                                        of Justice (England & Wales), Queen’s Bench Division
                                                                        (Administrative Court) by order of that court dated
The period within which the directive was to be implemented             10 December 2003, in the case of The Queen on the
expired on 30 July 2000.                                                application of 1) Unitymark Ltd, 2) North Sea Fishermen’s
                                                                        Organisation against Department for Environment, Food
                                                                                and Rural Affairs
(1) OJ 1998 L 213, p. 13.
                                                                                (Case C-535/03)
                                                                                (2004/C 47/33)
Reference for a preliminary ruling by the Oberlandesge-
richt München by order of that Court of 24 June 2003 in
the case of SA Scania Finance France against Rockinger                  Reference has been made to the Court of Justice of the
   Spezialfabrik für Anhängerkupplungen GmbH & Co.                      European Communities by an order of the High Court of
                                                                        Justice (England & Wales), Queen’s Bench Division (Adminis-
                                                                        trative Court) dated 10 December 2003, which was received
                         (Case C-522/03)                                at the Court Registry on 19 December 2003, for a preliminary
                                                                        ruling in the case of The Queen on the application of
                                                                        1) Unitymark Ltd, 2) North Sea Fishermen’s Organisation
                          (2004/C 47/32)                                against Department for Environment, Food and Rural Affairs,
                                                                        on the following questions:
Reference has been made to the Court of Justice of the
European Communities by order of the Oberlandesgericht                  Are:
München of 24 June 2003, received at the Court Registry on
6 November 2003, for a preliminary ruling in the case of SA
                                                                        (1) paragraph 4(b), and the part of paragraph 6(a) which
Scania Finance France against Rockinger Spezialfabrik für
                                                                              refers to paragraph 4(b), of Annex XVII of Council
Anhängerkupplungen GmbH & Co. on the following ques-
                                                                              Regulation 2341/2002 of 20 December 2002 (1); and/or
tions:
1.    Is point 2 of Article 27 of the Brussels Convention of            (2) paragraph 4(b), and the part of paragraph 6(a) which
      27 September 1968, as amended by the Fourth Conven-                     refers to paragraph 4(b), of Annex XVII of Council
      tion on Accession of 29 November 1996, in conjunction                   Regulation 2341/2002 of 20 December 2002 as
      with the first paragraph of Article IV of the Protocol to               amended by Regulation 671/2003 of 10 April 2003 (2);
      the Brussels Convention of 27 September 1968, as                        and/or
      amended by the Fourth Convention on Accession of
      29 November 1996, to be interpreted as meaning that
      judicial documents may be served on a defendant, who at           (3) Article 1 of Commission Decision 2003/185 of 14 March
      the time of service of the document instituting proceed-                2003 (3) insofar as the Commission refuses to extend,
      ings is domiciled in a Contracting State other than the                 under paragraph 6(b) of Annex XVII of Council Regu-
      State of the court, only in accordance with the conven-                 lation 2341/2002, the number of days available to vessels
      tions concluded between the Contracting States?                         carrying the gear in the class referred to in paragraph 4(b)
                                                                              of that Annex, by two days,
2.    If not, is Article 12 EC to be interpreted as precluding a
      national rule under which service of a judicial document
      on a defendant who, at the time of the service, is                unlawful in their application to open gear beam trawlers
      domiciled in another Member State is deemed constituted           because they are:
      by a domestic service whereby the bailiff of the court
      lodges the document instituting proceedings with the
      public prosecution service, which forwards the docu-              (a)   contrary to Articles 33 (ex 39) and 34 (ex 40) EC,
      ments for transfer by contractual or diplomatic means,
      and, by registered letter with notice of delivery, notifies
      the foreign party of the service which has been effected?         (b) contrary to Articles 28 (ex 30) and 29 (ex 34) EC,
                                                                        (c)   disproportionate,


title: Case T-63/07: Judgment of the General Court of 17 March 2010 — Mäurer + Wirtz v OHIM — (tosca de FEDEOLIVA) (Community trade mark — Opposition proceedings — Application for Community figurative mark tosca de FEDEOLIVA — Earlier Community and national word marks TOSCA — Relative grounds for refusal — Failure to take an argument into consideration — Article 74(1) of Regulation (EC) No 40/94 (now Article 76(1) of Regulation (EC) No 207/2009))

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/40

         Judgment of the General Court of 17 March 2010 — Mäurer + Wirtz v OHIM — (tosca de FEDEOLIVA)
   (Case T-63/07) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark tosca de FEDEOLIVA - Earlier Community and national word marks TOSCA - Relative grounds for refusal - Failure to take an argument into consideration - Article 74(1) of Regulation (EC) No 40/94 (now Article 76(1) of Regulation (EC) No 207/2009))
   2010/C 113/62
   Language of the case: English

      Parties

      Applicant: Mäurer + Wirtz GmbH & Co. KG (Stolberg, Germany) (represented by: D. Eickemeier, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: D. Botis, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Exportaciones Aceiteras Fedeoliva, AIE (Jaén, Spain)

      Re:

   Action brought against the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 18 December 2006 (Case R 761/2006-2), concerning opposition proceedings between Mülhens GmbH & Co. KG and Exportaciones Aceiteras Fedeoliva, AIE.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 18 December 2006 (Case R 761/2006-2), to the extent that it rejects the opposition brought on the basis of Article 8(5) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (now Article 8(5) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark);

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Mäurer + Wirtz GmbH & Co. KG and the Office for Harmonisation in the Internal Market (Trade Marks and Designs) each to bear its own costs.

      (1)  OJ C 95, 28.4.2007.


title: Reference for a preliminary ruling by the Sala de lo Social del Tribunal Superior de Justicia de la Comunidad Valenciana by order of that court of 10 July 1998 in the Case of SIMAP (Sindicato de Médicos de Sanidad de Asistencia Pública) against the Conselleria de Sanidad y Consumo de la Generalitat Valenciana (Case C-303/98)

text:
26.9.98               EN                  Official Journal of the European Communities                                           C 299/25
    condition not provided for by the definitive list                consequences set out therein take effect even in the
    contained in those provisions,                                   absence of any corresponding provision of national law?
                                                                     (1) OJ L 336, 23.12.1994, p. 213.
Ð breach of the principle that no one is bound to do the
    impossible', in that it held their failure to discharge an
    impossible burden of proof to be decisive,
Ð breach of Article 5(2) of Council Regulation (EEC)
    No 1697/79 and Article 220 of Regulation (EEC)
    No 2913/92, in that it interpreted those provisions as           Reference for a preliminary ruling from the Bundessozial-
    meaning that the customs authorities did not commit              gericht (Federal Social Court) by order of that Court of
    an error' when the undue payment was consistent                 13 May 1998 in the Case of Manfred Sehrer v. Bundes-
    with the declaration made by the exporter, and                   knappschaft (Federal Pension Fund for Miners),
    therefore there was an induced' error,                          intervener: Landesversicherungsanstalt für das Saarland
                                                                           (Regional Insurance Institution for the Saarland)
                                                                                (Case C-302/98)
Ð breach of the principle of protection of legitimate
    expectations. The Court of First Instance upheld the                                        (98/C 299/39)
    unusual concept of commercial risk' to be borne by
    all traders, although well aware that it is possible for
    the customs authorities to alter their findings,                 Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Bundessozialge-
                                                                     richt (Eighth Chamber) of 13 May 1998, which was
Ð infringement of Articles 30 and 36 of the Treaty, in
                                                                     received at the Court Registry on 3 August 1998, for a
    that, by declaring that a customs' risk existed, it
                                                                     preliminary ruling in the Case of Manfred Sehrer v. Bun-
    upheld the need for a disguised restriction on trade
                                                                     desknappschaft, intervener: Landesversicherungsanstalt für
    between Member States,
                                                                     das Saarland on the following question.
Ð breach of the principle ne bis in idem and of Article 5
                                                                     Do Articles 6 and 48 to 51 of the Treaty establishing the
    of Council Regulation (EEC) No 1697/79 and
                                                                     European Community and Article 3 of Council Regulation
    Article 220 of Regulation (EEC) No 2913/92, in that
                                                                     (EEC) No 1408/71 (1), on the application of social security
    it did not annul the Decision, or even the part of the
                                                                     schemes to employed persons, to self-employed persons
    Decision authorising recovery of duties relating to a
                                                                     and to members of their families moving within the
    customs slip which had already been paid by CPL
                                                                     Community, preclude national rules under which the
    Imperial 2 SpA.
                                                                     whole of a supplementary French pension paid on the
                                                                     basis of a collective agreement is subject to contributions
(1) OJ L 197, 3.8.1979, p. 1.                                        by the pensioner both to the French sickness insurance
(2) OJ L 302, 19.10.1992, p. 1.                                      scheme and to the German sickness insurance scheme?
                                                                     (1) Official Journal, English Special Edition, First Series II, p. 416.
Reference for a preliminary ruling by the Arrondissements-
rechtbank, The Hague in the Case of Parfums Christian
            Dior SA against Tuk Consultancy BV
                                                                     Reference for a preliminary ruling by the Sala de lo Social
                       (Case C-300/98)                               del Tribunal Superior de Justicia de la Comunidad Valen-
                         (98/C 299/38)                               ciana by order of that court of 10 July 1998 in the Case
                                                                     of SIMAP (Sindicato de MeÂdicos de Sanidad de Asistencia
                                                                     PuÂblica) against the Conselleria de Sanidad y Consumo de
                                                                                la Generalitat Valenciana
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondisse-                                           (Case C-303/98)
mentsrechtbank (District Court), The Hague, of 25 June
                                                                                (98/C 299/40)
1998, received at the Court Registry on 29 July 1998, for
a preliminary ruling in the Case of Parfums Christian Dior
SA against Tuk Consultancy BV on the following question.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Sala de lo Social
Is Article 50(6) of the Agreement on trade-related aspects           del Tribunal Superior de Justicia de la Comunidad Valen-
of intellectual property rights (1) to be interpreted as             ciana (Chamber for Labour Matters of the High Court of
having direct effect in the sense that the legal                     Justice of the Valencia Community) of 10 July 1998,
 ---pagebreak--- C 299/26             EN                  Official Journal of the European Communities                                 26.9.98
which was received at the Court Registry on 3 August                       whole of that time be regarded as working time
1998, for a preliminary ruling in the case of SIMAP (Sindi-                or only such time as is actually spent in carrying
cato de MeÂdicos de Sanidad de Asistencia PuÂblica against                 out the activity for which they are called out, as
the Conselleria de Sanidad y Consumo of the Generalitat                    is the national practice referred to above at
Valenciana on the following questions relating to Council                  paragraph 8?
Directive 93/104/EC (1) concerning certain aspects of the
organisation of working time):                                         (c) Where the medical practitioners concerned are on
                                                                           call by being present at the Centre, must the
1. Questions on the general application of the Directive:                  whole of that time be regarded as ordinary
                                                                           working time or antisocial hours, according to
    (a) In view of Article 118a of the EC Treaty and the                   the national practice referred to above at
         reference in Article 1(3) of the Directive to all                 paragraph 8?
         sectors of activity, both public and private, within
         the meaning of Article 2 of Council Directive 89/          3. Questions on the average working time:
         391/EEC (2), which states that it is not applicable
         where characteristics peculiar to certain specific           (a) Must the working time spent on call be included
         public service activities . . . inevitably conflict               when determining the average working time for
         with it', must it be understood that the work of                  each seven-day period, pursuant to Article 6(2) of
         the medical practioners in the Equipos de Aten-                   the Directive?
         ción Primaria affected by the dispute is covered
         by the exception referred to?
                                                                       (b) Must the time spent on call be regarded as
                                                                           overtime?
    (b) Article 1(3) of the Directive also refers to
         Article 17, using the phrase without prejudice'.
         Despite the fact that, as stated above, there is no           (c) Despite the absence of harmonising legislation,
         harmonising state or autonomous regional                          can the reference period mentioned in
         legislation, must this silence be taken as a                      Article 16(2) of the Directive be understood to be
         derogation from Article 3, 4, 5, 6, 8 or 16 when,                 applicable and, if so, the derogations therefrom
         on account of the specific characteristics of the                 laid down in Article 17(2) and (3) in conjunction
         activity concerned, the duration of the working                   with paragraph (4)?
         time is not measured and/or predetermined?
                                                                       (d) If, as a result of the option provided for in
    (c)  Does the exemption, in Article 1(3) in fine of the                Article 18(1)(b), Article 6 of the Directive is not
         Directive, in respect of the activities of doctors in            applied, and despite the absence of harmonising
         training' lead, rather, to the conclusion that the                legislation, may Article 6 be considered
         activities of other doctors are in fact covered by                inapplicable on the ground that the worker's
         the Directive?                                                    agreement to perform such work has been
                                                                           obtained? Is the agreement of the two sides of
                                                                           industry as expressed in a collective agreement or
    (d) Does the reference to the fact that the provisions
                                                                           agreement between them tantamount to the
         of Directive 89/391/EEC are fully' applicable to
                                                                           worker's agreement in this respect?
         the matters referred to in paragraph 2 have any
         particular implications with regard to reliance
         being placed on it and its application?                    4. Questions on the nocturnal nature of the work:
2. Questions on working time:                                          (a) In view of the fact that normal working time is
                                                                           not at night, but that part of the on-call shifts
    (a) Article 2(1) of the Directive defines working time                 periodically to be performed by some of the
         as any period during which the worker is                         medical practitioners concerned is performed at
         working, at the employer's disposal and carrying                  night, and in the absence of harmonising
         out his activity or duties, in accordance with                    legislation, are those medical practitioners to be
         national laws and/or practice'. In view of the                    regarded as night workers pursuant to
         national practice referred to above at paragraph 8                Article 2(4)(b) of the Directive?
         of this order and in view of the absence of
         harmonising legislation, must the national                    (b) For the purposes of the option provided for in
         practice of excluding from the 40 hours per week                  Article 2(4)(b)(i) of the Directive, could national
         the time spent on call continue to be applied, or                 legislation on night work by workers subject
         must the general and specific provisions of                       to private law be applied to the medical
         Spanish legislation on working time relating to                   practitioners concerned whose employment
         private law employment relationships be applied                   relationship is governed by public law?
         by analogy?
                                                                       (c) Do the normal' hours of work referred to in
    (b) Where the medical practitioners concerned are on                   Article 8(1) of the Directive also include on-call
         call under the contact system rather than through                 shift performed under the contact system or while
         their actual presence at the Centre, must the                     physically present?
 ---pagebreak--- 26.9.98                EN                    Official Journal of the European Communities                                  C 299/27
5. Questions on shift work and shift workers:                           Ð infringement of Articles 90 and 91 of the Staff
                                                                            Regulations of Officials,
     In view of the fact that the working time at issue is
     shift work only in relation to on-call duty, and in the
     absence of harmonising legislation, can the work                   Ð infringement of Articles 26 and 43 of the Staff
     performed by the medical practitioners concerned be                    Regulations of Officials: contrary to the assertions of
     regarded as shift work and must they be regarded as                    the Court of First Instance, the absence of periodic
     shift workers in accordance with the definition                        staff reports for 1991 to 1993 and 1993 to 1995 not
     contained in Article 2(5) and (6) of the Directive?                    only affected the administrative situation and career of
                                                                            the appellant but also deprived that official of all
(1) Council Directive 93/104/EC of 23 November 1993
                                                                            defence rights,
    concerning certain aspects of the organisation of working time
    (OJ L 307, 13.12.1993, p. 18).                                      Ð breach of the concept of interests of the service' and
(2) OJ L 183, 29.6.1989, p. 1.
                                                                            breach of the audi alteram parte rule and of the
                                                                            principles of equal treatment and of non-
                                                                            discrimination: in finding that the Commission did not
                                                                            have to prove the facts alleged or the extent to which
                                                                            blame should be apportioned between the two officials
Appeal brought on 3 August 1998 by W. against the                           concerned, the Court of First Instance has contravened
judgment delivered on 28 May 1998 by the Fifth Chamber                      the case-law and also implicitly acknowledged that the
of the Court of First Instance of the European                              Commission committed an error of assessment and
Communities in Joined Cases T-78/96 and T-170/96                            misused its powers,
between W. and the Commission of the European
                           Communities                                  Ð infringement of Article 25(1) of the Staff Regulations
                       (Case C-304/98 P)                                    of Officials.
                          (98/C 299/41)
                                                                        (Case T-170/96)
An appeal against the judgment delivered on 28 May
1998 by the Fifth Chamber of the Court of First Instance                Ð infringement of Articles 215(2) and 178 of the EC
of the European Communities in Joined Cases T-78/96                         Treaty: for the Court of First Instance to regard an
and T-170/96 between W. and the Commission of the                           action for damages as a claim for compensation
European Communities was brought before the Court of                        ancillary to an action for annulment amounts to a
Justice of the European Communities on 3 August 1998                        distortion of the applicant's pleadings. The material
by W., represented by Gilles Bouneou, of the Luxembourg                     and non-material damage in respect of which
Bar, with an address for service in Luxembourg at 4 rue                     reparation is sought in the present case arises out of a
de l'Avenir.                                                                failure by the administration to adopt a decision and
                                                                            was caused to the appellant by conduct which cannot
The appellant claims that the Court should:                                 be characterised as an act adversely affecting an
                                                                            official because they produce no legal effects. This is
Ð declare the appeal admissible and well-founded,
                                                                            precisely the case with regard to the plea alleging:
and accordingly                                                             infringement of Articles 4 and 29; breach of the duty
                                                                            to have regard for the welfare of officials; misuse of
Ð set aside the contested judgment in Cases T-78/96 and                     powers; inadequate statement of reasons.
     T-170/96,
Ð grant the form of order sought at first instance,
Ð order the Commission to pay the costs in their
     entirety.
                                                                        Reference for a preliminary ruling by the Divisional
Pleas in law and main arguments adduced in support:                     Court, Queen's Bench Division, by order of that Court of
                                                                        14 July 1998, in the Case of the Queen against (1)
(Case T-78/96)                                                          Minister for Agriculture, Fisheries and Food, (2) Secretary
                                                                        of State for the Environment, ex parte: Monsanto plc, and
Ð irregularity of the proceedings: the Court of First                                      I Pi Ci SpA, Intervener
     Instance misinterpreted the facts submitted before it                                    (Case C-306/98)
     and failed to take into account evidence adduced and
     offered to be adduced by the appellant,                                                    (98/C 299/42)
Ð the Court of First Instance restricted the rights of the
     defence,                                                           Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Divisional
Ð contradictory and inadequate grounds of the judgment                  Court, Queen's Bench Division, of 14 July 1998, which
     appealed against as a result of incorrect findings of              was received at the Court Registry on 4 August 1998, for
     facts,                                                             a preliminary ruling in the Case of The Queen against (1)


title: Case C-377/09: Judgment of the Court (Third Chamber) of 29 July 2010 (reference for a preliminary ruling from the Tribunal de commerce de Bruxelles — Belgium) — Françoise-Eléonor Hanssens-Ensch (insolvency administrator of Agenor SA) v European Community (Article 235 EC and Article 288 EC, second paragraph — Jurisdiction of the Court of Justice to hear and determine actions for damages brought against the European Community on the basis of non-contractual liability — Action to make good a shortfall in the assets, within the meaning of Article 530(1) of the Belgian Code des sociétés — Action brought against the European Community by the insolvency administrator of a limited company — Jurisdiction of the national courts to hear and determine such an action)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/13

         Judgment of the Court (Third Chamber) of 29 July 2010 (reference for a preliminary ruling from the Tribunal de commerce de Bruxelles — Belgium) — Françoise-Eléonor Hanssens-Ensch (insolvency administrator of Agenor SA) v European Community
   (Case C-377/09) (1)

   (Article 235 EC and Article 288 EC, second paragraph - Jurisdiction of the Court of Justice to hear and determine actions for damages brought against the European Community on the basis of non-contractual liability - Action to make good a shortfall in the assets, within the meaning of Article 530(1) of the Belgian Code des sociétés - Action brought against the European Community by the insolvency administrator of a limited company - Jurisdiction of the national courts to hear and determine such an action)
   2010/C 246/20
   Language of the case: French

      Referring court

   Tribunal de commerce de Bruxelles

      Parties to the main proceedings

      Applicant: Françoise-Eléonor Hanssens-Ensch (insolvency administrator of Agenor SA)

      Defendant: European Community

      Re:

   Reference for a preliminary ruling — Tribunal de commerce de Bruxelles — Interpretation of the second paragraph of Article 288 EC — Action for damages brought by an insolvency administrator against the European Community on grounds of serious misconduct on the part of the Community in the de facto management of a commercial company, thus contributing to its insolvency — Jurisdiction of the Court of Justice to hear and determine an action for damages brought under national insolvency provisions on the basis of non-contractual liability

      Operative part of the judgment

   An action for damages brought against the European Community on the basis of non-contractual liability, even if it is brought under national legislation establishing special statutory rules which differ from the ordinary rules of law governing civil liability in the Member State concerned, does not — pursuant to Article 235 EC, read in conjunction with the second paragraph of Article 288 EC — fall within the jurisdiction of the national courts.

      (1)  OJ C 312, 19.12.2009.


title: Case T-118/15: Action brought on 6 March 2015 — Slovenia v Commission

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/41

         Action brought on 6 March 2015 — Slovenia v Commission
   (Case T-118/15)
   (2015/C 146/55)
   Language of the case: Slovene

      Parties

      Applicant: Republic of Slovenia (represented by L. Bembič, državni pravobranilec (legal representative of the State))

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Commission Implementing Decision 2014/950/EU of 19 December 2014 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2014) 10135) (OJ 2014 L 369, p. 71), insofar as it refers to the Republic of Slovenia, more particularly as regards the financial correction of EUR 8 7 00  815,25, adopted on account of an irregularity for the financial year 2009 concerning the Sugar-restructuring Fund measure;

               —

               order the Commission to pay the costs.

         Or, if the Court should not grant the request of the Republic of Slovenia set out above, the applicant claims that the Court should:

               —

               annul Commission Implementing Decision 2014/950/EU of 19 December 2014 on excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (notified under document C(2014) 10135) (OJ 2014 L 369, p. 71), insofar as it refers to the Republic of Slovenia, more particularly as regards the financial correction of EUR 8 7 00  815,25, adopted on account of an irregularity for the financial year 2009 concerning the Sugar-restructuring Fund measure, in the amount exceeding the sum of EUR 4 3 50  407,62;

               —

               order the parties to bear their own costs.

      Pleas in law and main arguments

   In support of its action, the applicant raises two pleas in law.

               1.

               First plea: misapplication of the TFEU, or of a legal rule relating to its application, manifest error of assessment, inadequate reasons given for the decision and breach of the principle audi alteram partem

               The applicant maintains, in that regard, that the Commission erred in its finding that the silos are an integral part of the production plant and that the applicant ought, therefore, to have dismantled them on the basis of the comprehensive restructuring plan.

               2.

               Second plea: breach of the principles of legality, of cooperation in good faith, of the protection of legitimate expectations, and of the principle patere legem quam ipse fecisti

               In this respect, the applicant argues that if the Commission, before 8 August 2008 (the date on which the applicant approved an amendment to the restructuring plan concerning the preservation of the silos), had answered the applicant’s written question about the preservation of certain structures, if it had amended and supplemented Regulation No 968/2006 (1) and if, having received the communication relating to the alteration of the restructuring programme, it had informed the applicant of the alleged irregularity concerning the preservation of the silos, or if it had written to all the Member States informing them of its interpretation of the unclear provisions of the relevant legislation, the financial correction at issue would not have been made and the contested decision would not have been adopted.

      (1)  Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (OJ 2006 L 176, p. 32).


title: Case C-165/07: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 27 March 2007 — Skatteministeriet v Ecco Sko A/S

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/8

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 27 March 2007 — Skatteministeriet v Ecco Sko A/S
   (Case C-165/07)
   (2007/C 129/12)
   Language of the case: Danish
   Referring court
   Vestre Landsret
   Parties to the main proceedings

      Applicant: Skatteministeriet

      Defendant: Ecco Sko A/S
   Questions referred

               ‘1.

               Is Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature (1), as amended by Commission Regulation (EC) No 2388/2000 of 13 October 2000 (2), to be interpreted as meaning that footwear such as that in question in the main proceedings should be classified as footwear with uppers of leather under CN heading 6403 or as footwear with uppers of textile materials under CN heading 6404?

               2.

               Is Additional Note 1 to Chapter 64 of the CN, which was incorporated by Commission Regulation No 3800/92 of 23 December 1992 (3) amending Council Regulation No 2658/87, compatible with Note 4(a) to Chapter 64 of the CN?’

      (1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1).

      (2)  Commission Regulation (EC) No 2388/2000 of 13 October 2000 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2000 L 264, p. 1); corrigendum: OJ L 276, 28.10.2000, p. 92.

      (3)  OJ 1992 L 384, p. 8.


title: Judgment of the Court of 23 September 2003 in Case C-78/01 (Reference for a preliminary ruling from the Bundesgerichtshof): Bundesverband Güterkraftverkehr und Logistik eV (BGL) v Bundesrepublik Deutschland, represented by the Hauptzollamt Friedrichshafen (Free movement of goods — External transit operation — Transport under cover of a TIR carnet — Offences or irregularities — Possibility for a guaranteeing association to prove the place where the offence or irregularity was committed — Time-limit for furnishing proof — Existence of an obligation for the Member State which detects an offence or irregularity to investigate the place where it was committed)

text:
C 275/8                 EN                           Official Journal of the European Union                                            15.11.2003
Thiéfosse (France), Filatures et tissages de Saulxures-sur-Mose-                               JUDGMENT OF THE COURT
lotte, established in Saulxures-sur-Moselotte (France), Tissage
Mouline Thillot, established in Thillot (France), Filature Nigge-                                   of 23 September 2003
ler & Küpfer SpA, established in Capriolo (Italy), Standardtela
SpA, established in Milan (Italy), (Agents: C. Stanbrook and                 in Case C-78/01 (Reference for a preliminary ruling from
P. Bentley, QC): Appeal against the judgment of the Court of                 the Bundesgerichtshof): Bundesverband Güterkraftver-
First Instance of the European Communities (Second Chamber,                  kehr und Logistik eV (BGL) v Bundesrepublik Deutsch-
Extended Composition) of 29 November 2002 in Case T-213/                     land, represented by the Hauptzollamt Friedrichshafen (1)
97 Eurocoton and Others v Council [2000] ECR II-3727,
seeking to have that judgment set aside, the other parties to                (Free movement of goods — External transit operation —
the proceedings being: Council of the European Union (Agents:                Transport under cover of a TIR carnet — Offences or
S. Marquardt acting as Agent, assisted by G.M. Berrisch and                  irregularities — Possibility for a guaranteeing association to
H.P. Nehl), United Kingdom of Great Britain and Northern                     prove the place where the offence or irregularity was
Ireland (Agent: K. Manji) and Tessival SpA, established in                   committed — Time-limit for furnishing proof — Existence
Azzano S. Paolo (Italy), the Court, composed of: G.C. Rodrí-                 of an obligation for the Member State which detects an
guez Iglesias, President, M. Wathelet and C.W.A. Timmermans                  offence or irregularity to investigate the place where it was
(Presidents of Chambers), C. Gulmann, D.A.O. Edward, P. Jann,                                             committed)
F. Macken, N. Colneric, S. von Bahr (Rapporteur), J.N. Cunha
Rodrigues and A. Rosas, Judges; F.G. Jacobs, Advocate General;                                         (2003/C 275/14)
L. Hewlett, Principal Administrator, for the Registrar, has given
a judgment on 30 September 2003, in which it:                                                   (Language of the case: German)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
1.    Sets aside the judgment of the Court of First Instance of the
      European Communities of 29 November 2000 in Case T-213/
      97 Eurocoton and Others v Council in so far as it concerns the
      appellants.                                                            In Case C-78/01: Reference to the Court under Article 234 EC
                                                                             by the Bundesgerichtshof (Germany) for a preliminary ruling
                                                                             in the proceedings pending before that court between Bundes-
                                                                             verband Güterkraftverkehr und Logistik eV (BGL) and Bundes-
2.    Sets aside the decision of the Council of the European Union of        republik Deutschland, represented by the Hauptzollamt Fried-
      16 May 1997, which became final on 21 May 1997, not to                 richshafen, third party: Préservatrice Foncière Tiard SA, on
      adopt the proposal for a Council regulation (EC) imposing a            the interpretation of Articles 454 and 455 of Commission
      definitive anti-dumping duty on the import of unbleached               Regulation (EEC) No 2454/93 of 2 July 1993 laying down
      cotton fabric from the People’s Republic of China, Egypt, India,       provisions for the implementation of Council Regulation (EEC)
      Indonesia, Pakistan and Turkey (COM (97) 160 final),                   No 2913/92 establishing the Community Customs Code (OJ
      submitted by the Commission of the European Communities on             1993 L 253, p. 1), the Court, composed of: G.C. Rodríguez
      21 April 1997, in so far as it concerns the appellants.                Iglesias, President, M. Wathelet, R. Schintgen and
                                                                             C.W.A. Timmermans (Presidents of Chambers), C. Gulmann,
                                                                             A. La Pergola, V. Skouris, F. Macken, N. Colneric, J.N. Cunha
3.    Dismisses the action for damages.                                      Rodrigues and A. Rosas (Rapporteur), Judges; P. Léger, Advo-
                                                                             cate General; H. von Holstein, Deputy Registrar, has given a
                                                                             judgment on 23 September 2003, in which it has ruled:
4.    Orders the Council of the European Union and the appellants
      to bear their own costs at first instance.                             1.    The first subparagraph of Article 454(3) of Commission
                                                                                Regulation (EEC) No 2454/93 of 2 July 1993 laying down
                                                                                provisions for the implementation of Council Regulation (EEC)
5.    Orders the Council of the European Union to pay the costs of                 No 2913/92 establishing the Community Customs Code
      the appeal.                                                                  does not preclude a guaranteeing association against which
                                                                                proceedings are brought by a Member State for payment of
                                                                                customs duties on the basis of the guarantee contract it has
                                                                                concluded with that State in accordance with the Customs
6.    Orders the United Kingdom of Great Britain and Northern                      Convention on the International Transport of Goods under
      Ireland to bear its own costs both at first instance and on                  cover of TIR Carnets from being able to furnish proof of the
      appeal.                                                                      place where the offence or irregularity was committed, provided
                                                                                that that proof is furnished within the period laid down in that
                                                                                provision, that time-limit being peremptory.
(1) OJ C 108 of 7.4.2001.                                                    2.    The first paragraph of Article 454(3) and Article 455 of
                                                                                Regulation No 2454/93 must be interpreted as meaning that
                                                                                the guaranteeing association has available, to furnish proof of
                                                                                the place where the offence or irregularity was actually commit-
                                                                                ted, a period of two years running from the date of the claim
                                                                                for payment made to it.
 ---pagebreak--- 15.11.2003             EN                           Official Journal of the European Union                                                C 275/9
3.   Articles 454 and 455 of Regulation No 2454/93 do not                   the national of a Member State, the Court, composed of:
     require the Member State which detects an offence or irregularity      G.C. Rodríguez Iglesias, President, J.-P.- Puissochet, M. Wathe-
     in connection with a transport operation under cover of a TIR          let, R. Schintgen and C.W.A. Timmermans (Presidents of
     carnet, in addition to making the notifications prescribed in          Chambers), D.A.O. Edward, A. La Pergola, P. Jann, F. Macken,
     Article 455(1) of that regulation and an enquiry to the office         N. Colneric (Rapporteur) and S. von Bahr, Judges; L.A. Geel-
     of destination, to investigate the actual place where the offence      hoed, Advocate General; L. Hewlett, Principal Administrator,
     or irregularity was committed and the identity of the customs          for the Registrar, has given a judgment on 23 September
     debtors, by seeking the administrative assistance of another           2003, in which it has ruled:
     Member State for elucidation of the facts.
(1) OJ C 118 of 21.4.2001.                                                  1.   In order to be able to benefit in a situation such as that at issue
                                                                                in the main proceedings from the rights provided for in
                                                                                Article 10 of Regulation (EEC) No 1612/68 of the Council of
                                                                                15 October 1968 on freedom of movement for workers within
                                                                                the Community, a national of a non-Member State married to
                                                                                a citizen of the Union must be lawfully resident in a Member
                                                                                State when he moves to another Member State to which the
                                                                                citizen of the Union is migrating or has migrated.
                                                                            2.   Article 10 of Regulation No 1612/68 is not applicable where
                                                                                the national of a Member State and the national of a non-
                 JUDGMENT OF THE COURT                                           Member State have entered into a marriage of convenience in
                                                                                order to circumvent the provisions relating to entry and residence
                                                                                of nationals of non-Member States.
                     of 23 September 2003
                                                                            3.   Where the marriage between a national of a Member State and
                                                                                a national of a non-Member State is genuine, the fact that the
in Case C-109/01 (Reference for a preliminary ruling from
                                                                                spouses installed themselves in another Member State in order,
the Immigration Appeal Tribunal): Secretary of State for                         on their return to the Member State of which the former is a
         the Home Department v Hacene Akrich (1)                                 national, to obtain the benefit of rights conferred by Community
                                                                                law is not relevant to an assessment of their legal situation by
                                                                                the competent authorities of the latter State.
(Freedom of movement for workers — National of a non-
Member State who is the spouse of a national of a Member
State — Spouse under a prohibition on entering and
remaining in that Member State — Temporary establishment                    4.   Where a national of a Member State married to a national of
of the couple in another Member State — Establishment                            a non-Member State with whom she is living in another
with a view to acquisition by spouse of a right under                            Member State returns to the Member State of which she is a
Community law to enter and remain in the first Member                            national in order to work there as an employed person and, at
                          State — Abuse)                                         the time of her return, her spouse does not enjoy the rights
                                                                                provided for in Article 10 of Regulation No 1612/68 because
                                                                                he has not resided lawfully on the territory of a Member State,
                                                                                the competent authorities of the first-mentioned Member State,
                         (2003/C 275/15)                                         in assessing the application by the spouse to enter and remain
                                                                                in that Member State, must none the less have regard to the
                                                                                right to respect for family life under Article 8 of the European
                                                                                Convention for the Protection of Human Rights and Fundamen-
                   (Language of the case: English)
                                                                                tal Freedoms, signed at Rome on 4 November 1950, provided
                                                                                that the marriage is genuine.
In Case C-109/01: Reference to the Court under Article 234                  (1) OJ C 150 of 19.5.2001.
EC by the Immigration Appeal Tribunal (United Kingdom) for
a preliminary ruling in the proceedings pending before that
court between Secretary of State for the Home Department
and Hacene Akrich, on the interpretation of Community law
on freedom of movement for persons and the right to remain
of a national of a non-Member State who is the spouse of


title: Action brought on 17 December 1997 by Dalmine SpA against the Commission of the European Communities (Case T-596/97)

text:
20.2.98                EN                    Official Journal of the European Communities                                      C 55/29
Pleas in law and main arguments adduced in support:                     Pleas in law and main arguments adduced in support:
The pleas in law and main arguments are similar to those                The pleas in law and main arguments are similar to those
relied upon in Case T-288/97 Regione Friuli-Venezia                     relied upon in Case T-288/97 Regione Friuli-Venezia
Giulia v. Commission (1).                                               Giulia v. Commission (1).
(1) Not yet published in the Official Journal.                          (1) Not yet published in the Official Journal.
Action brought on 11 December 1997 by Anna Maria                        Action brought on 17 December 1997 by Dalmine SpA
Baldo and Others against the Commission of the                             against the Commission of the European Communities
                    European Communities                                                        (Case T-596/97)
                        (Case T-313/97)
                                                                                (98/C 55/59)
                          (98/C 55/58)
                                                                                (Language of the case: English)
                (Language of the case: Italian)
                                                                        An action against the Commission of the European
An action against the Commission of the European                        Communities was brought before the Court of First
Communities was brought before the Court of First                       Instance of the European Communities on 17 December
Instance of the European Communities on 11 December                     1997 by Dalmine SpA, represented by Fabrizio Arossa,
1997 by Mr and Mrs Baldo Anna Maria, Lena Livio,                        Avvocato, and Rachel Brandenburger, Solicitor of
Peresson Francesco, Burello Angelo, Iuretig Ugo, Buiatti                Freshfields, with an address for service in Luxembourg at
Gianfranco, Buiatti Eligio, Koren Alberto, Plesnicar Luigi,             the office of Elvinger, Hoss and Prussen, 2 place Winston
Marega Antonella, Interbartolo Gandolfo, Bandelli Luigi,                Churchill, Luxembourg.
Minutillo Vincenzo, Pontarini Roberto, Misson Luigi,
Ferro Luigi, Zanin Mario Tristano, Krt Narcizo, Nicoletti
                                                                        The applicant claims that the Court should:
Renato, Damiani Gilberto, Bergamo Giuseppe, Frosutto
Renato, Zanin Lucio, Smoljan Liberato, De Monte
Gianantonio, Liva Guido, Dominutti Giancarlo, Taboga                    Ð on the grounds more particularly set out in the
Silvio, Mini Dino, Agostinis Luigi, Fontana Silvano,                         application, annul Articles 2 and 4 of Commission
Caruzzi Luciano, Di Bidino Amabile, Tomasin Renzo,                           Decision C(97) 3036 of 6 October 1997 in so far as
Narduzzi Sereno, Collorigh Edo, Rizzi Giuliano, Coppola                      these Articles relate to the applicant,
Aurelio, Piron Robertino, Amerio Paolo (ditta Amerio
Carlo & c.), Amerio Paolo (ditta Percotrans di Paolo
Amerio & c.), Murello Aurelio, Aristone Claudio, Budola                 Ð order the Commission to pay the costs.
Giuliano, Coppola Aurelio, Deganis Luciano, Fantini
Enzo, Uboldi Attilio, Culino Paolino, Bernardis Arrigo,
                                                                        Pleas in law and main arguments adduced in support:
Miniussi Alfio, Monai Patrizia, Cok Celeste, Di Vora
Angelo, represented by Vincenzo Cinque and Luciana
Candriella, of the Udine Bar, with an address for service at            The applicant, a public limited company incorporated
the Chambers of Luciana Candriella, aÁ Udine, via                       under Italian law, partially challenges a Decision arising
Morpurgo, 34.                                                           out of an investigation by the Commission into alleged
                                                                        infringements of Article 85 of the EC Treaty by producers
                                                                        of steel tubes. According to the applicant, even though
The applicant claims that the Court should:                             Article 4 of the contested Decision formally mentions
                                                                        three addressees, the same provision shows that the
Ð annul Commission Decision C(97) 2735 final of                         Commission has attempted to notify the Decision to
     30 July 1997,                                                      Siderca Saic, an indirect parent company of the applicant,
                                                                        and to the Techint Group', both established in Argentina,
                                                                        by delivering it to the applicant at its registered address.
Ð in the alternative, annul Article 5 of that Decision
     inasmuch as it requires the Member State to recover
     the aid (granted as from 1 July 1990), together with               The applicant submits in this regard that the Commission
     the interest accrued as from the date on which the aid             has infringed an essential procedural requirement, misused
     was paid,                                                          its powers and infringed the EC Treaty and the rules
                                                                        relating to its application, since it is not entitled to send a
                                                                        request for information to third parties by way of a
Ð in any event, order the Commission of the European                    Decision pursuant to Article 11(5) of Regulation No 17
     Communities to pay the costs.                                      notified to the applicant and to require the latter to pass
 ---pagebreak--- C 55/30              EN                 Official Journal of the European Communities                                    20.2.98
on the Decision to those third parties who are addressees          Communities on 19 December 1997 by BSC Footwear
of the Decision. In addition, the Commission may not               Supplies, represented by Alasdair Bell and Mark Powell,
validly notify the Decision to two other supposed                  with an address for service in Luxembourg at the
addressees via the applicant, simply on the basis of the           Chambers of Loesch & Wolter, 11, rue Goethe.
limited corporate links between the applicant and Siderca.
It is submitted that the notion of a single economic entity
is not relevant to the question whether a duty may be              The applicants claim that the Court should:
imposed on one addressee of a Decision to pass on copies
of that decision to other addressees. Moreover, inasmuch
as one of the addressees of the decision is the Techint           Ð annul Council Regulation (EC) No 2155/97 imposing
Group' an additional difficulty arises, since the Techint              definitive anti-dumping duties on imports of textile
Group' is not an identifiable legal entity but an                       upper footwear originating in the People's Republic of
appellation used to refer to a number of different                      China and Indonesia and collecting definitively the
undertakings engaged in diversified businesses ultimately               provisional duty imposed, and
controlled by San Faustin NV. Accordingly, even if the
applicant were to be required to pass on the decision, it
would be unable to do so since it would be unable to               Ð order the Council to pay the costs of the applicant
identify one of the addressees of the decision.                         companies in the present proceedings.
                                                                   Pleas in law and main arguments adduced in support:
Furthermore, it is clear from the wording of Article 2 of
the contested Decision that the Commission considers the
applicant to be jointly liable with each of the other              The applicants, who are the same as those in Case T-73/
addressees for the payment of any periodic penalty                 97 (1), seek the annulment of Council Regulation (EC)
payments which would be imposed pursuant to                        No 2155/97 (2) imposing a definitive anti-dumping duty
Article 16(1)(c) of Regulation No 17 on the Techint               on imports of footwear with textile uppers originating in
Group' and/or Siderca, should Siderca not provide the              the People's Republic of China and Indonesia. The pleas
information requested in the Decision. In so doing, the            in law and main arguments concerning the alleged
Commission has infringed both Articles 11 and 16 of                infringement of Article 1(4) of Regulation (EC) No 3283/
Regulation No 17 and the principle of individual liability         94 (3) are the same as those raised in that case.
which is enshrined in that Regulation. Neither Article 11
nor Article 16, nor any other provision of Regulation
No 17 empowers the Commission to impose penalty                    In addition, the applicants plead infringement of
payments on one undertaking for the failure by another             Article 3(1) of Regulation (EC) No 3283/94 in that
undertaking to supply information requested from it in a           material injury was not established in relation to
Decision pursuant to Article 11(5). Moreover, as a                 Community industry' as defined by law.
consequence of the enforcement of the contested Decision,
it would be deprived of its essential procedural rights of
defence.                                                           Furthermore, the applicants plead infringement of
                                                                   Articles 20(4) and 20(5) of Regulation (EC) No 3283/94.
                                                                   In the administrative proceedings prior to the adoption of
Finally, the applicant submits that the contested Decision,        Regulation (EC) No 2155/97 the Commission failed to
apart from being inconsistent, contradictory and                   respect the procedural guarantees to which the applicants
insufficiently reasoned, fixes a higher level of penalty           were entitled pursuant to Article 20 of the basic anti-
payments than is permitted by Article 16(1) of Regulation          dumping Regulation. In particular, the right of the
No 17.                                                             applicants to obtain final disclosure', and to comment on
                                                                   the contents of that disclosure, was infringed by the
                                                                   Commission. The applicants' rights of defence were
                                                                   thereby violated.
                                                                   Finally, the applicants  claim that the decision to impose a
Action brought on 19 December 1997 by BSC Footwear                 49,2 % anti-dumping       duty on a product which it is
Supplies and Others against the Council of the European            practically impossible    to source in the Community (i.e.
                           Union                                   vulcanised footwear)     is disproportionate and, therefore,
                                                                   unlawful.
                      (Case T-598/97)
                        (98/C 55/60)                               (1) OJ C 166, 31.5.1997, p. 17.
                                                                   (2) OJ L 298, 1.11.1997, p. 1.
                                                                   (3) Council Regulation (EC) No 3283/94 of 22 December 1994
                                                                       on protection against dumped imports from countries not
               (Language of the case: English)
                                                                       members of the European Community (OJ L 349, 31.12.1994,
                                                                       p. 1).
An action against the Council of the European Union was
brought before the Court of First Instance of the European


title: Case F-132/14: Judgment of the Civil Service Tribunal (1st Chamber) of 6 October 2015 — CH v Parliament (Civil service — Accredited parliamentary assistants — Article 266 TFEU — Measures executing an annulling judgment of the Tribunal — Annulment of a dismissal decision — Annulment of a decision rejecting a request for assistance made under Article 24 of the Staff Regulations — Scope of the obligation to provide assistance where there is at least some evidence of harassment — Obligation on the AECE to conduct an administrative inquiry — Option for the official or member of staff to bring proceedings under national law — Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace — Role and powers — Material and non-material harm)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/64

         Judgment of the Civil Service Tribunal (1st Chamber) of 6 October 2015 — CH v Parliament
   (Case F-132/14) (1)

   ((Civil service - Accredited parliamentary assistants - Article 266 TFEU - Measures executing an annulling judgment of the Tribunal - Annulment of a dismissal decision - Annulment of a decision rejecting a request for assistance made under Article 24 of the Staff Regulations - Scope of the obligation to provide assistance where there is at least some evidence of harassment - Obligation on the AECE to conduct an administrative inquiry - Option for the official or member of staff to bring proceedings under national law - Advisory Committee dealing with harassment complaints between Accredited Parliamentary Assistants and Members of the European Parliament and its prevention at the workplace - Role and powers - Material and non-material harm))
   (2015/C 381/90)
   Language of the case: French

      Parties

      Applicant: CH (represented by: L. Levi, C. Bernard-Glanz and A. Tymen, lawyer)

      Defendant: European Parliament (represented by: E. Taneva and M. Dean, Agents)

      Re:

   Application seeking annulment of the decisions taken by the European Parliament to execute the judgment of the Civil Service Tribunal of 12 December 2013, F-129/12, CH v Parliament, refusing to open an administrative inquiry in relation to the applicant’s complaint alleging harassment, seeking that the applicant be paid a supplementary sum of pecuniary compensation and seeking that the applicant be granted all the benefits and incidental benefits linked to the existence of his contract as an accredited parliamentary assistant, the termination of which was annulled by the Tribunal in its judgment mentioned above, and an application seeking damages for the material and non-material harm allegedly suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the European Parliament’s decision of 2 April 2014, as confirmed by the decision of 4 August 2014 rejecting the complaint, in so far as the European Parliament, in breach of Article 266 TFEU, refused to pay CH a supplementary sum of EUR 5  686 by way of execution of the judgment of 12 December 2013 in CH v Parliament (F-129/12, EU:F:2013:203);

               2.

               Annuls the European Parliament’s decision of 3 March 2014, as confirmed by the decision of 4 August 2014 rejecting the complaint, in so far as, following the annulment by the judgment of 12 December 2013 in CH v Parliament (F-129/12, EU:F:2013:203) of the European Parliament’s decision of 15 March 2012 rejecting CH’s request for assistance of 22 December 2011, the European Parliament decided not to open an administrative inquiry on the alleged psychological harassment and thus infringed Article 266 TFEU;

               3.

               Dismisses the claims for annulment as to the remainder;

               4.

               Orders the European Parliament to pay CH the sum of EUR 5  686, together with default interest accruing as of 1 July 2014 (the date when CH’s employment was terminated) at the rate fixed by the European Central Bank for its main refinancing operations, increased by two points;

               5.

               Orders the European Parliament to pay CH a sum of EUR 25  000 by way of compensation for the non-material harm suffered, together with default interest accruing as of 4 August 2014 at the rate fixed by the European Central Bank for its main refinancing operations, increased by two points;

               6.

               Dismisses the claims for damages as to the remainder;

               7.

               Declares that the European Parliament is to bear its own costs and orders it to pay the costs incurred by CH.

      (1)  OJ C 34, 2.2.2015, p. 52.


title: Action brought on 16 January 1997 by Union Carbide Corporation (UCC) against the Commission of the European Communities (Case T-8/97)

text:
8 . 3 . 97              EN |                 Official Journal of the European Communities                               No C 74/25
— order the Commission, pursuant to Article 178 and                     designed to prevent erosion of rights as between
     the second paragraph of Article 215 of the EC Treaty,              Categories A and B.
     to make good any damage caused to the applicants by
     the wrongful adoption of Regulation ( EC ) No 203 5/96,
                                                                        The role of the Member States in collecting and
                                                                        transmitting information to the Commission cannot
                                                                        prevent the latter from checking that such information is
— order the Commission to pay the costs incurred by the                 accurate .
      applicants.
                                                                        For the purpose of calculating the licence rights for 1997,
Pleas in law and main arguments adduced in support:
                                                                        most of the quantities handled by the various categories of
                                                                        operators could be accurately calculated simply by
                                                                        analysing licences issued and used during 1993 , 1994 and
                                                                        1995 . Furthermore, in adopting a provisional reduction
The applicants are members of the Dole group of                         coefficient based on such incorrect figures, the
companies, a group engaged in the worldwide business of                 Commission has acted in breach of the principle of non
producing, processing, distributing and marketing quality               discrimination laid down in Article 40 ( 3 ) of the EC
branded fruit products, primarily fresh fruit and                       Treaty.
vegetables and packaged fruits and nuts . The applicants
are registered as Category A operators, as defined by
Article 2 ( a ) of Commission Regulation (EEC) No 1442/93
of 1 0 June 1993 laying down detailed rules for the application
of the arrangements for importing bananas into the
Community ( OJNoL 142, 12 . 6 . 1993 , p. 6 ).
                                                                        Action brought on 16 January 1997 by Union Carbide
                                                                        Corporation (UCC ) against the Commission of the
                                                                                European Communities
The application concerns the administration by the
Commission of the rules governing the allocation of                                              (Case T-8/97 )
licences for the import of third-country and non                                                 ( 97/C 74/51 )
traditional ACP bananas into the Community under the
tariff quota established by Article 18 ( 1 ) of Council
Regulation (EEC) No 404/93 of 13 February 1993 on the                                  (Language of the case: English)
common organization of the market in bananas (OJ No
L 47, 25 . 2 . 1993 , p. 1 ). It arises out of the decision of the
Commission to reduce the quantity of licences allocated to              An action against the Commission of the European
the applicants for the year 1997 through the application                 Communities was brought before the Court of First
of a provisional reduction coefficient based on incorrect                Instance of the European Communities on 16 January
reference quantities as set out in Commission Regulation                 1997 by Union Carbide Corporation (UCC ), represented
(EC ) No 2035/96 of 20 October 1996 fixing the single                    by Brian Hartnett, with an adress for service in
reduction      coefficient   for    the  determination    of   the       Luxembourg at the Chambers of Arendt & Medernach,
provisional quantity of bananas to be allocated to each                  Postal Box 39 .
operator in Categories A and B from the tariff quota for
1997 ( OJ No L 272 , 25 . 10 . 1996, p. 6 ).
                                                                        The applicant claims that the Court should:
In support of their claims, the applicants submit that the              — annul, in whole or in part, Commission Decision C/96
Commission determined the reference quantity on the                          1035 final — Shell/Montecatini, and
basis of figures which were known to be inaccurate .
According to them, these inaccuracies are not confined to
the figures themselves. Simple mistakes in mathematics                   — order the Commission to pay the costs, disbursements
and reporting have also been made . They consider, in this                   and fees of the applicant pursuant to Article 87 of the
regard, that even if the adoption of a provisional                           Rules of Procedure of the Court of First Instance of
 reduction coefficient might appear to be a practical                        the European Communities .
response to the difficult problem of monitoring the
 market, the difference between the reference quantities
                                                                         Pleas in law and main arguments adduced in support:
 claimed and the actual licences issued are used during the
 reference period, which amounts to an error of 27,8 % ,
 can no longer be justified on the basis of existing                     The pleas in law and main arguments are the same as
 difficulties resulting from the initial operation of the                those raised in Case T-153/96 (Union Carbide Corporation
 common organization of the market. The applicants stress                v. the Commission of the European Communities, OJ No
 that the abovementioned error gives rise to gradual                     C 354, 23 . 11 . 1996 , p. 33 ).
 erosion of their import rights and will result in their losing
 all rights to operate in the banana market, contrary to
 Article 19 (2 ) of Regulation ( EEC ) No 404/93 , which is


title: Case T-363/07: Action brought on 14 September 2007 — Hamdi v Council

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/66

         Action brought on 14 September 2007 — Hamdi v Council
   (Case T-363/07)
   (2007/C 269/120)
   Language of the case: Dutch
   Parties

      Applicant: Ahmed Hamdi (Amsterdam, Netherlands) (represented by: J. Pauw, lawyer)

      Defendant: Council of the European Union
   Form of order sought

               —

               Declare Regulation (EC) No 2580/2001 inapplicable and/or annul Decision 2007/445 in so far as those measures relate to the applicant;

               —

               Order the Council to pay the costs of the present proceedings.

         Pleas in law and main arguments
   In support of his application, the applicant first of all submits that Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70) is not applicable to him inasmuch as there is no connection whatsoever between the common foreign and security policy and the applicant.
   Second, the applicant submits that Regulation No 2580/2001 is not applicable to him inasmuch as he is not committing, or attempting to commit, participating in or facilitating the commission of any act of terrorism.
   In conclusion, the applicant contends that the contested decision is at variance with the principle of proportionality, is inadequately reasoned and is contrary to his fundamental rights, in particular the right to undisturbed enjoyment of his property and the right to respect for his private life.