title: Case T-143/99: Action brought on 12 June 1999 by Hortiplant, S.A.T. against Commission of the European Communities

text:
C 226/44              EN                     Official Journal of the European Communities                                         7.8.1999
Action brought on 12 June 1999 by Hortiplant, S.A.T.                    In support of its claims, the applicant alleges that:
     against Commission of the European Communities
                                                                        — Article 24(2) of Regulation No 4253/88 (2) was misapplied
                                                                             in respect of the applicant’s actings: first, in that there
                        (Case T-143/99)                                      were no irregularities of the kind complained of by the
                                                                             Commission, secondly, because that provision does not
                                                                             provide a proper legal basis for a withdrawal of the type
                        (1999/C 226/77)                                      being contested, since its wording only refers to reduction
                                                                             or suspension of aid;
                  (Language of the case: Spanish)                       — infringement of the rights of the defence in as much as
                                                                             procedural requirements were not in the least observed
                                                                             during the proceedings, particularly in view of the criminal-
An action against the Commission of the European Communi-                    law consequences to which they could give rise. First, the
ties was brought before the Court of First Instance of the                   Commission’s letter of 3 April 1995 which, in the
European Communities on 12 June 1999 by Hortiplant, S.A.T.,                  applicant’s view, could be regarded as a statement of
whose registered office is at Amposta, Tarragona, (Spain),                   objections, was vitiated by its lack of clarity in its
represented by Concepción Fernändez Vicién and Eva Contre-                  accusations of alleged irregularities. Furthermore, the Com-
ras Ynzenga, of the Cuatrecasas Chambers, 78 Avenue d’Au-                    mission, again according to the applicant, took into
derghem, 1040 Brussels.                                                      consideration a number of documents which had been
                                                                             sent to it by mistake, not least because it had not stated
                                                                             that the justification provided in respect of the staff
The applicant claims that the Court should:                                  expenditure was inadequate. Moreover, there is no evidence
                                                                             that the defendant followed the procedure provided for in
                                                                             Article 24(1) of Regulation 4253/88 for suspension or
— annul the Commission’s decision of 4 March 1999 with-                      reduction of aid.
     drawing the aid granted to Hortiplant, S.A.T.;
— in the alternative, annul in part that decision and pro-              Finally, the applicant alleges breach of the principle of
     portionally reduce the aid granted by Commission Decision          proportionality and the obligation of providing a statement of
     C (92) 3125 of 4 March 1999;                                       the reasons on which a measure is based.
— order the Commission to pay the costs.
                                                                        (1) Council Regulation (EEC) No 4256/88 of 19 December 1988
                                                                            laying down provisions for implementing Regulation (EEC)
                                                                            No 2052/88, as regards the EAGGF Guidance Section (OJ 1988
                                                                            L 374, p. 25).
Pleas in law and main arguments
                                                                        (2) Council Regulation (EEC) No 4253/88 of 19 December 1988
                                                                            laying down provisions for implementing Regulation (EEC)
                                                                            No 2052/88 as regards coordination of the activities of the
The present action has been brought against the decision of                 different Structural Funds between themselves and with the
the Commission of 4 March 1999 withdrawing the aid granted                  operations of the European Investment Bank and the other
to the applicant undertaking by virtue of Commission Decision               existing financial instruments (OJ 1988 L 374, p. 1).
C (92) 3125 of 4 March 1999 relating to aid granted by the
EAGGF Guidance Section, pursuant to Council Regulation
(EEC) No 4256/88 (1), for project no 9 ES.06.022 ‘Initiative
consisting in a pilot project to demonstrate a new high
efficiency production system for nurseries: application to
ornamental and woodland species’.
This project was born of research carried out by the applicant
which showed improved vegetative and productive behaviour               Action brought on 15 June 1999 by Rui Teixeira Neves
in seedlings obtained in a new type of container, known as a            against the Court of Justice of the European Communities
‘Fifton Plant’ and which appeared particularly suited to the
production of ornamental and woodland tree and shrub
species which required specific soil depths in order to take                                       (Case T-146/99)
root and develop properly.
                                                                                (1999/C 226/78)
The reason for the contested decision is based on a number of
financial and accounting irregularities which, in the applicant’s
view, took place at the drafting stage of the aforementioned                              (Language of the case: Portuguese)
project; said irregularities concern, in particular, its co-
financing by the undertaking Resteya, and also the justification
of certain staff expenditure and of the invoices paid to the            An action against the Court of Justice of the European
undertakings Gentforsa and Cedarcliff.                                  Communities was brought before the Court of First Instance


title: Judgment of the Court of First Instance of 14 February 2001 in Case T-62/99: Société de distribution de mécaniques et d'automobiles (Sodima) v Commission of the European Communities (Competition — Distribution of motor vehicles — Rejection of a complaint — Action for annulment)

text:
C 150/24               EN                     Official Journal of the European Communities                                    19.5.2001
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              G. Marenco and L. Guérin and, subsequently, Mr Marenco and
                                                                         F. Siredey-Garnier) — application for annulment of the
                      of 14 February 2001                                Commission decision of 8 March 1999 rejecting a complaint
                                                                         by the applicant based on Article 85 of the EC Treaty
                                                                         (now Article 81 EC) and on Commission Regulation (EC)
in Case T-62/99: Société de distribution de mécaniques et
                                                                         No 1475/95 of 28 June 1995 on the application of
d’automobiles (Sodima) v Commission of the European
                                                                         Article 85(3) of the Treaty to certain categories of motor
                         Communities (1)                                 vehicle distribution and servicing agreements (OJ 1995 L 145,
                                                                         p. 25) — the Court of First Instance (Second Chamber),
(Competition — Distribution of motor vehicles — Rejection                composed of J. Pirrung, President, and A. Potocki and
           of a complaint — Action for annulment)                        A.W.H. Meij, Judges; J. Palacio González, Administrator, for
                                                                         the Registrar, has given a judgment on 14 February 2001, in
                         (2001/C 150/45)                                 which it:
                                                                         1.    Dismisses the application.
                   (Language of the case: French)
                                                                         2.    Orders the applicant to pay the costs.
In Case T-62/99, Société de distribution de mécaniques et
d’automobiles (Sodima), a company in judicial liquidation,
established in Istres (France), represented by J.-C. Fourgoux,           (1) OJ C 226 of 7.8.1999.
avocat, with an address for service in Luxembourg, against
Commission of the European Communities (Agents: initially
G. Marenco and L. Guérin and, subsequently, Mr Marenco and
F. Siredey-Garnier) — application for annulment of the
Commission decision of 5 January 1999 rejecting a complaint
by the applicant based on Article 85 of the EC Treaty (now
Article 81 EC) — the Court of First Instance (Second Chamber),
composed of J. Pirrung, President, and A. Potocki and
A.W.H. Meij, Judges; J. Palacio González, Administrator, for
the Registrar, has given a judgment on 14 February 2001, in                  JUDGMENT OF THE COURT OF FIRST INSTANCE
which it:
                                                                                of 13 February 2001
1.    Dismisses the application.
2.    Orders the applicant to pay the costs.                             in Case T-2/00: N v Commission of the European Com-
                                                                                munities (1)
(1) OJ C 160 of 5.6.1999.
                                                                         (Officials — Social security — Accident insurance —
                                                                         Article 73 of the Staff Regulations — Definition of ‘accident’
                                                                                — HIV infection)
                                                                                (2001/C 150/47)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                      of 14 February 2001
in Case T-115/99: Système européen promotion (SEP)                       In Case T-2/00: N, an official of the Commission of the
   SARL v Commission of the European Communities (1)                     European Communities, residing in Brussels, represented by
                                                                         J.-L. Dupont and M.-A. Lucas, avocats, with an address for
                                                                         service in Luxembourg, against Commission of the European
(Competition — Distribution of motor vehicles — Rejection
                                                                         Communities (Agents: G. Valsesia and J. Currall) — application
           of a complaint — Action for annulment)
                                                                         for annulment of the refusal of the Commission to recognise
                                                                         as an accident, within the meaning of Article 73 of the Staff
                         (2001/C 150/46)                                 Regulations of the officials of the European Communities and
                                                                         Article 2 of the Rules on protection against the risk of
                                                                         occupational disease and of accident, infection of the applicant
                   (Language of the case: French)                        by the human immunodeficiency virus (HIV) and a claim for
                                                                         damages — the Court of First Instance (Fifth Chamber),
In Case T-115/99, Système européen promotion (SEP) SARL,                 composed of P. Lindh, President, R. Garcı́a-Valdecasas and
established in Saint- Vit (France), represented by J.-C. Fourgoux,       J.D. Cooke, Judges; Blanca Pastor, Principal Administrator,
avocat, with an address for service in Luxembourg, against               for the Registrar, gave a judgment on 13 February 2001, in
Commission of the European Communities (Agents: initially                which it:


title: Action brought on 21 July 1998 by the Kingdom of the Netherlands against Commission of the European Communities (Case C-278/98)

text:
C 299/12                EN                 Official Journal of the European Communities                                   26.9.98
      placement of employees as not being contrary to                 payment of tolls by the user constitutes a supply of
      criminal law, with the result that the relevant                 services which must be subjected to value added tax. The
      penalising provisions of national law must be                   fact that that activity is carried out by public bodies does
      disapplied.                                                     not mean that it does not fall within the scope of VAT,
                                                                      since it constitutes an economic activity for the purposes
                                                                      of Article 2 of the sixth VAT Directive and is carried out
(b) Whether Articles 86 and 90 are to be interpreted as               by taxable persons within the meaning of Article 4 of that
      meaning that a system like that deriving from the               Directive, notwithstanding the fact that those persons are
      legislative amendments made by Law No 96 of                     public bodies.
      24 June 1997 and Legislative Decree No 469 of
      23 December 1997 constitutes an abuse of a
      dominant position.
                                                                      As regards the question of own resources, the Commission
                                                                      considers that, where the Sixth VAT Directive is infringed
( ) Case C-55/96 Job Centre [1997] ECR I-7119.
 1
                                                                      and consequently the base for the calculation of own
                                                                      resources is reduced, it must claim the amount of own
                                                                      resources which is owed by reason of that infringement.
                                                                      Otherwise the remaining Member States suffer financial
                                                                      loss and the principle of equality is infringed.
Action brought on 16 July 1998 by the Commission of the               (1) OJ L 145, 13.6.1977, p. 1.
    European Communities against the Hellenic Republic                (2) OJ L 155, 7.6.1989, p. 1.
                                                                      (3) OJ L 155, 7.6.1989, p. 9.
                          (Case C-260/98)
                           (98/C 299/21)
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 16 July 1998 by the Commission of the European
Communities, represented by Dimitrios Goulousis, Legal                Action brought on 21 July 1998 by the Kingdom of the
Adviser, and HeÂleÁne Michard, of its Legal Service, with an               Netherlands against Commission of the European
address for service in Luxembourg at the office of Carlos                                       Communities
Gómez de la Cruz, of its Legal Service, Wagner Centre,                                       (Case C-278/98)
Kirchberg.
                                                                                (98/C 299/22)
The Commission claims that the Court should:
                                                                      An action against the Commission of the European
1. declare that, by failing, contrary to Articles 2 and 4 of          Communities was brought before the Court of Justice of
     the sixth Council Directive 77/388/EEC (1), to subject           the European Communities on 21 July 1998 by the
     to value added tax road tolls, which constitute                  Kingdom of the Netherlands, represented by Marc Fierstra
     consideration paid by the users in return for the                and Nynke Wijmenga, Assistant Legal Advisers at the
     supply to them of a service consisting of the making             Ministry of Foreign Affairs, the Hague.
     available of motorways and other road infrastructure,
     and, in addition, by avoiding in that way payment of
     own resources and of the interest due (Council
     Regulations (EEC, Euratom) No 1552/89 (2) and (EEC,              The applicant claims that the Court should:
     Euratom) No 1553/89 (3)), the Hellenic Republic has
     failed to fulfil its obligations under the EC Treaty;
                                                                      1. annul Commission Decision 98/358/EC (1) of 6 May
2. order the Hellenic Republic to make available to the                   1998 on the clearance of accounts presented by the
     Commission the own resources which have not been                     Member States in respect of the expenditure for 1994
     paid since 1987, together with interest for late                     of the Guarantee Section of the European Agricultural
     payment;                                                             Guidance and Guarantee Fund (notified under
                                                                          document number C(1998) 1124) (1), in so far as a
                                                                          sum of NLG 16 378 716,63 concerning expenditure
3. order the Hellenic Republic to pay the costs.                          on advance payments of export refunds is excluded
                                                                          from Community financing (reference C(98) 1124
                                                                          final);
Pleas in law and main arguments adduced in support:
According to the Commission, the grant of the right to use            2. order the Commission to pay the costs of the
a motorway or other road facility in return for the                       proceedings.
 ---pagebreak--- 26.9.98               EN                 Official Journal of the European Communities                                          C 299/13
Pleas in law and main arguments adduced in support:                 Ð Infringement of the principle of equal treatment:
                                                                         by departing in the contested decision from the
Ð Infringement of Article 5(2)(c) of Council Regulation
                                                                         Commission's guidelines (3) without stating the reasons
    (EEC) No 729/70 of 21 April 1970 on the financing of
                                                                         for such a departure, the Commission infringed the
    the common agricultural policy (2):
                                                                         principle of equal treatment even though these
                                                                         guidelines are not, as such, binding,
    The verifications for the 1992 and 1993 financial
    years cannot lead to the corrections of the expenditure         Ð Infringement of the requirement to state reasons.
    in the 1994 financial year. As regards the verifications
    in 1994, the Commission cannot, on the basis of the
                                                                    (1) OJ L 163, 6.6.1998, p. 28.
    small number of checks carried out by the                       (2) Official Journal, English Special Edition 1970 (I), p. 218.
    Commission and the small number of irregularities               (3) Communication to the EAGGF Committee, VI/216/93, of
    thereby found, take the view that the Netherlands                   3 June 1993, Calculation of the financial consequence when
    control scheme as a whole displays material defects                 preparing decisions on the clearance of accounts in the context
    which justify a flat-rate reduction of 10 % for the                 of the EAGGF Guarantee' section.
    cereals sector and 5 % for the beef and veal sector,
Ð Infringement of Article 5(2)(c) of Regulation (EEC)
    No 729/70, the principle of good faith cooperation
    and the principle of audi alteram partem:
                                                                    Appeal brought on 23 July 1998 by Cascades SA against
                                                                    the judgment delivered on 14 May 1998 by the Third
                                                                    Chamber (Extended Composition) of the Court of First
    The Commission did not carry out a dialogue in good
                                                                    Instance of the European Communities in Case T-308/94
    faith with the Netherlands' authorities concerning the
                                                                    between Cascades SA and the Commission of the
    procedure leading up to the clearance of the accounts
                                                                                European Communities
    for 1994. In its report of 13 February 1997 the
    mediation body states that the Commission objected                                      (Case C-279/98 P)
    to every adjustment to its position. The Commission's                                      (98/C 299/23)
    refusal seriously to have regard to the arguments
    which were submitted by the Netherlands' authorities
    in support of their position is also clear from the
                                                                    An appeal against the judgment delivered on 14 May
    official notification of 28 June 1996. The Commission
                                                                    1998 by the Third Chamber of the Court of First Instance
    confines itself to repeating the arguments which it had
                                                                    of the European Communities in Case T-308/94 between
    previously submitted. It refers briefly to the
                                                                    Cascades SA and the Commission of the European
    improvements which have taken place in the
                                                                    Communities was brought before the Court of Justice of
    Netherlands but does not in any way deal with the
                                                                    the European Communities on 23 July 1998 by Cascades
    arguments on which the Netherlands' authorities have
                                                                    SA, represented by Jean-Yves Art, of the Brussels Bar, with
    requested the Commission to submit a view. The
                                                                    an address for service in Luxembourg at the Chambers of
    Commission does not allege that the arguments are
                                                                    Arendt & Medernach, 8Ð10 rue Mathias Hardt.
    incorrect or irrelevant, let alone give reasons for such
    a view, but merely ignores those arguments,
                                                                    The appellant claims that the Court should:
Ð Errors in the summary report:
                                                                    Ð set aside the judgment delivered by the Court of First
                                                                         Instance on 14 May 1998 in Case T-308/94 Cascades
                                                                         SA v. Commission (1),
    the Netherlands control system was in accordance
    with the Community rules then in force; there is no
    reason to apply Commission Regulation (EC) No 2221/             Ð grant the form of order sought before the Court of
    95 by anticipation,                                                  First Instance of the European Communities by
                                                                         Cascades SA (2),
Ð Infringement of the principle of legal certainty:
                                                                    Ð order the Commission to pay the whole of the costs,
                                                                         both of the proceedings before the Court of First
    contrary to the express undertaking that financial                   Instance and of those before the Court of Justice,
    consequences would follow from defects in national
    control systems only from 1 July 1994, the                      in the alternative:
    Commission made considerable flat-rate corrections
    over the 1994 financial year. Furthermore, when
    making the flat-rate corrections, the Commission                Ð if the Court takes the view that the state of the
    failed to take mitigating circumstances into account,                proceedings does not allow final judgment to be given,


title: Judgment of the Court of First Instance of 10 December 2003 in Case T-173/02: Pierre Tomarchio v Commission of the European Communities (Officials – Grading — Rejection of an application for regrading under Article 31(2) of the Staff Regulations)

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


title: Judgment of the Court of First Instance of 21 September 1999 in Case T-98/98: Tania Trigari-Venturin v Translation Centre for Bodies of the European Union (Probationer member of the temporary staff - Dismissal for incompetence at the end of the probationary period - Action for annulment - Correlation between grade and the duties to be performed - Delay in transmission of social documentation - Action for compensation - Damage)

text:
C 333/26                  EN                     Official Journal of the European Communities                                    20.11.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 Action brought on 24 August 1999 by Ioannis Gerokhris-
                                                                            tos against the Commission of the European Communities
                       of 21 September 1999
                                                                                (Case T-189/99)
in Case T-98/98: Tania Trigari-Venturin v Translation                                               (1999/C 333/64)
         Centre for Bodies of the European Union (1)
(Probationer member of the temporary staff — Dismissal                                         (Language of the case: Greek)
for incompetence at the end of the probationary period —
Action for annulment — Correlation between grade and the
duties to be performed — Delay in transmission of social                    An action against the Commission of the European Communi-
   documentation — Action for compensation — Damage)                        ties was brought before the Court of First Instance of the
                                                                            European Communities on 24 August 1999 by Ioannis
                                                                            Gerokhristos, a political science graduate, resident at Tsimiski
                           (1999/C 333/63)                                  99, Thessaloniki, Greece, represented by Nikolaos Korogian-
                                                                            nakis, of the Athens Bar, with an address for service in
                                                                            Luxembourg at the offices of Brown Holding SA, 310 Route
                                                                            d’Esch, L-1471 Luxembourg.
                     (Language of the case: French)
                                                                            The applicant claims that the Court should:
In Case T-98/98: Tania Trigari-Venturin, a former member of
the temporary staff of the Translation Centre for Bodies of                 — find that his application is well founded in law and on the
the European Union, residing at Sandweiler (Luxembourg),                        merits;
represented by Jean-Noël Louis and Françoise Parmentier, of
the Brussels Bar, with an address for service in Luxembourg at
the offices of Fiduciaire Myson SARL, 30 Rue de Cessange, v                 — annul:
Translation Centre for Bodies of the European Union (Agents:
Nadia Lamboray and Denis Waelbroeck) — application, first,
                                                                                — Decision 21.06.99/IX.A2./023 rejecting the applicant’s
for annulment of the decision of the Translation Centre for                         request that his script be re-examined in order for him
Bodies of the European Union of 9 October 1997 dismissing                           to be included in the list of successful candidates at
the applicant with effect from 31 October 1997 and, second,
                                                                                that stage and to participate in the written tests;
for compensation for the material and non-material damage
which that dismissal has caused to the applicant — the Court
of First Instance (Third Chamber), composed of: M. Jaeger,                      — Decision IX.A.2 D(98)/500R-EL 501502 of 30 April
President, and K. Lenaerts and J. Azizi, Judges; A. Mair, Admin-                    1999 excluding the applicant from the written tests,
istrator, for the Registrar, has given a judgment on 21 Septem-                     and every administrative, procedural or implementing
ber 1999, in which it:                                                              act of the defendant which is subsequent or incidental
                                                                                to those tests or flows from them and is based on or
                                                                                includes the abovementioned decisions, in particular
1. Dismisses the application for annulment;                                         the acts embodied in:
2. Orders the Translation Centre for Bodies of the European Union                   (a) the list of candidates who were admitted to the
     to pay to the applicant compensation equivalent to two and a                       written tests for Competition COM/A/12/98
     half months’ Community unemployment benefit together with                          (A7/A6) 02, European Public Administration;
     default interest at the annual rate of 5% from 15 January 1999
     until payment in full;
                                                                                (b) the list of candidates who were admitted to the
                                                                                oral tests for Competition COM/A/12/98 (A7/A6)
3. Dismisses the remainder of the application for compensation;                         02, European Public Administration;
4. Orders the parties to bear their own costs.                                      (c) the list of successful candidates in Competition
                                                                                COM/A/12/98 (A7/A6) 02, European Public
                                                                                Administration;
(1) OJ C 258 of 15.8.1998.                                                  — or in any event annul the decision of the selection board
                                                                                not to include the applicant in the list of candidates for the
                                                                                written test and in the subsequent oral process;
                                                                            — order the defendant to pay the costs.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 24 October 1996 in Case C-288/94 (reference for a preliminary ruling from the VAT and Duties Tribunal): Argos Distributors Ltd v. Commissioners of Customs and Excise (Value-added tax - Sixth Directive - Taxable amount)

text:
25 . 1 . 97          EN                 Official Journal of the European Communities                                     No C 26/ 1
                                                                I
                                                         (Information)
                                            COURT OF JUSTICE
                                                      COURT OF JUSTICE
              JUDGMENT OF THE COURT                                the price of goods purchased by a customer who was not
                      ( Sixth Chamber)                             the buyer of the voucher, and who does not normally
                                                                   know the actual price at which the voucher was sold by
                    of 24 October 1996                             the supplier, the consideration represented by the voucher
                                                                   is the sum actually received by the supplier on the sale of
in Case C-288/94 (reference for a preliminary ruling from          the voucher.
the VAT and Duties Tribunal): Argos Distributors Ltd v.
           Commissioners of Customs and Excise (')
                                                                   ( J ) OJNoC 380, 31 . 12 . 1994 .
  (Value-added tax — Sixth Directive — Taxable amount)             ( 2 ) OJ No L 145, 13 . 6 . 1977, p. 1 .
                         ( 971C 26/01 )
               (Language of the case: English)
                                                                                JUDGMENT OF THE COURT
In Case C-288/94: reference to the Court pursuant to
Article 177 of the EC Treaty from the VAT and Duties                                        (Fourth Chamber)
Tribunal, London, for a preliminary ruling in the                                          of 24 October 1996
proceedings pending before that court between Argos
Distributors Limited and Commissioners of Customs and              in Case C-172/95 (reference for a preliminary ruling from
Excise — on the interpretation of Article 11 of the sixth          the Tribunal Administratif, Amiens ): Société sucrière
Directive, Council Directive 77/388/EEC of 17 May 1977             agricole de Maizy and Société sucrière de Berneuil-sur
on the harmonization of the laws of the Member States                         Aisne v. Directeur régional des impôts i 1 )
relating to turnover taxes — Common system of value               (Common organization of the markets in the sugar
added tax: uniform basis of assessment (2 ) — the Court            sector — Chargeable event for storage, production
( Sixth Chamber), composed of: G. F. Mancini, President            and elimination levies — Period in respect of which
of the Chamber, C. N. Kakouris ( Rapporteur ) and G.                                elimination levies are payable)
Hirsch, Judges; N. Fennelly, Advocate-General; H. von
Holstein, Deputy Registrar, for the Registrar, has given a                                       97/C 26/02 )
judgment on 24 October 1996 , in which it has ruled:
                                                                                (Language of the case: French)
Article 11 (A) (1 ) (a) of the sixth Directive, Council
Directive 77/388/EEC of 17 May 1977 on the                            (Provisional translation; the definitive translation will be
harmonization of the laws of the Member States relating                       published in the European Court Reports)
to turnover taxes — Common system of value-added tax:
uniform basis of assessment, must be interpreted as
meaning that, when a supplier has sold a voucher to a              In Case C-l 72/95 : reference to the Court pursuant to
buyer at a discount and promised subsequently to accept            Article 177 of the EC Treaty from the Tribunal
that voucher at its face value in full or part payment of          Administratif ( Administrative Court), Amiens ( France ), for


title: Reference for a preliminary ruling from the Hoge Raad der Nederlanden by order of that court of 23 October 1998 in the case of Coreck Maritime GmbH against (1) Handelsveem B.V., (2) V. Berg and Sons Ltd, (3) Man Producten Rotterdam B.V. and (4) The Peoples Insurance Company of China (Case C-387/98)

text:
C 397/22              EN                Official Journal of the European Communities                                   19.12.98
Reference for a preliminary ruling from the Landesgericht              administrative provisions necessary to comply with
St Pölten (Austria) by order of that court of 2 September              Council Directive 93/104/EC of 23 November 1993
1998 in the case of D. (a minor) v. W. on appeal by the                concerning certain aspects of the organisation of
                Österreichischer Bundesschatz                          working time (1), and/or by failing to inform the
                       (Case C-384/98)                                 Commission thereof, the Italian Republic has failed to
                                                                       fulfil its obligations under the EC Treaty; and
                        (98/C 397/38)
                                                                   2. order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Landesgericht
(Regional Court) St Pölten (Austria) of 2 September 1998,          Pleas in law and main arguments adduced in support:
which was received at the Court Registry on 26 October
1998, for a preliminary ruling in the case of D. (a minor)
v. W. on appeal by the Österreichischer Bundesschatz on            Under Article 189 of the EC Treaty, according to which a
the followqing questions:                                          directive is to be binding, as to the result to be achieved,
                                                                   upon each Member State to which it is addressed,
                                                                   Member States are required to observe the time-limits laid
1. Is Article 13A(1)(c) of the Sixth Council Directive 77/
                                                                   down in directives for their transposition. That time-limit
     388/EEC of 17 May 1977 on the harmonisation of the
                                                                   expired on 23 November 1996 without the Italian
     laws of the Member States relating to turnover
                                                                   Republic having brought into force the necessary
     taxes (1) to be interpreted as meaning that the
                                                                   provisions in order to comply with the directive referred
     exemption from turnover tax laid down by that
                                                                   to in the Commission's application.
     provision extends also to medical services which a
     doctor in his capacity as a court expert provides on
     the instructions of the Court, in particular by               (1) OJ L 307, 13.12.1993, p. 18.
     anthropologico-genetic investigations in the context of
     a paternity dispute?
2. If Question 1 is answered in the affirmative: does that
     provision of the directive preclude application of a
     provision of national law which entitles (inter alia)
     doctors under certain conditions effectively to waive         Reference for a preliminary ruling from the Hoge Raad
     the said exemption from turnover tax?                         der Nederlanden by order of that court of 23 October
                                                                   1998 in the case of Coreck Maritime GmbH against (1)
                                                                   Handelsveem B.V., (2) V. Berg and Sons Ltd, (3) Man
(1) OJ L 145, 13.6.1977, p. 1.                                     Producten Rotterdam B.V. and (4) The Peoples Insurance
                                                                                Company of China
                                                                                (Case C-387/98)
                                                                                (98/C 397/40)
Action brought on 26 October 1998 by the Commission
 of the European Communities against the Italian Republic          Reference has been made to the Court of Justice of the
                                                                   European Communities by order of the Hoge Raad der
                       (Case C-386/98)
                                                                   Nederlanden (Supreme Court of the Netherlands) of
                        (98/C 397/39)                              23 October 1998, received at the Court Registry on
                                                                   29 October 1998, for a preliminary ruling in the case of
                                                                   Coreck Maritime GmbH against (1) Handelsveem B.V.,
                                                                   (2) V. Berg and Sons Ltd, (3) Man Producten Rotterdam
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                B.V. and (4) The Peoples Insurance Company of China on
                                                                   the following questions:
26 October 1998 by the Commission of the European
Communities, represented by Pieter Jan Kuijper and
Antonio Aresu, Legal Advisers, acting as Agents, with an
address for service in Luxembourg at the Office of Carlos          1. Must the first sentence of Article 17 of the Brussels
Gómez de la Cruz, of its Legal Service, Wagner Centre,                 Convention (in particular, the words have agreed'),
Kirchberg.                                                             read in conjunction with the case-law of the Court of
                                                                       Justice according to which the purpose of Article 17
                                                                       is to ensure that the parties have actually consented to
The applicant claims that the Court should:                            such a clause, which derogates from the ordinary
                                                                       jurisdiction rules laid down in Articles 2, 5 and 6 of
                                                                       the Convention, and that their consent is clearly and
1. declare that, by failing to adopt and bring into force              precisely demonstrated' (emphasis added by the Hoge
     within the prescribed period the laws, regulations or             Raad), be interpreted as meaning:
 ---pagebreak--- 19.12.98              EN                  Official Journal of the European Communities                                     C 397/23
    (a) that, in order for a clause vesting jurisdiction in a                  possibly depend to some extent on the contents
         given court, as provided for in that article, to be                   of the bill of lading and/or the particular
         valid as between the parties, it is necessary in each                 circumstances of the case, such as the particular
         case for that clause to be formulated in such a                       state of knowledge of the third party concerned
         way that its wording alone makes it quite clear to                    or the fact that the latter has a long-standing
         (inter alia) persons other than the parties Ð and                     business relationship with the carrier and, if so,
         in particular to the court concerned Ð which                          can the third party be deemed to be aware of the
         court is to have jurisdiction to settle disputes                      particular circumstances of the case if the contents
         arising from the legal relationship in the context                    of the bill of lading do not make it sufficiently
         of which that clause is stipulated, or at least that                  clear to him that the clause in question is validly
         the identity of that court can be easily ascertained;                 binding on him?
         or
                                                                     4. If the answer to Question 3(a) is as set out in the
    (b) that Ð whether by virtue of a rule which has at                   second alternative postulated therein, which national
         all material times been aplicable or in                          law governs the decision as to whether the third party,
         consequence of or in connection with the                         upon acquiring the bill of lading, succeeded to the
         progressive relaxation of the rules arising from the             shipper's rights and obligations, and what is the
         successive amendments made to Article 17 of the                  position if the national law in question has not
         Brussels Convention, together with the case-law of               hitherto provided, either in its legislation or in its case-
         the Court of Justice concerning the circumstances                law, an answer to the question whether the third
         in which such a clause is to be regarded as having               party, upon acquiring the bill of lading, succeeds to
         been validly concluded Ð in order for such a                     the shipper's rights and obligations?
         clause to be valid, it is enough that the parties
         themselves clearly know, on the basis (inter alia)
         of the (further) circumstances of the case, which
         court is to have jurisdiction to settle such
         disputes?
                                                                     Action brought on 29 October 1998 by the Commission
2. Does Article 17 of the Brussels Convention also                   of the European Communities against the Hellenic
    govern the validity, as against a third party holding a                                     Republic
    bill of lading, of a clause which specifies as the forum                                 (Case C-388/98)
    having jurisdiction to settle disputes under this Bill of
    Lading' the courts of the place where the carrier has                                     (98/C 397/41)
    his principal place of business' and which is laid
    down in a bill of lading also containing an identity of
    carrier' clause, that bill of lading being issued for the        An action against the Hellenic Republic was brought
    purposes of the carriage of goods, where (a) the                 before the Court of Justice of the European Communities
    shipper and one of the possible carriers are not                 on 29 Octrober 1998 by the Commission of the European
    established in a Contracting State and (b) the second            Communities, represented by Maria Kondou-Durande, of
    possible carrier is indeed established in a Contracting          its Legal Service, with an address for service in
    State but it is not certain whether his principal place         Luxembourg at the Office of Carlos Gómez de la Cruz, of
    of business' is situated in that State or in a State which       its Legal Service, Wagner Centre, Kirchberg.
    is not a party to the Convention?
                                                                     The Commission claims that the Court should:
3. If the answer to Question 2 is in the affirmative:
                                                                     Ð declare that, by not adopting the laws, regulations and
    (a) Does the fact that the jurisdiction clause                        administrative provisions necessary to comply with
         contained in the bill of lading must be regarded as              Council Directive 94/67/EC (1) of 16 December 1994
         valid as between the carrier and the shipper mean                on the incineration of hazardous waste, or by not
         that it is also binding on any third party holding               communicating those measures to the Commission, the
         the bill of lading, or is that the position only as              Hellenic Republic has failed to fulfil its obligations
         regards a third party who, upon acquiring the bill               under that directive;
         of lading, succeeds by virtue of the applicable
         national law to the shipper's rights and
         obligations?                                                Ð order the Hellenic Republic to pay the costs.
    (b) Assuming that the jurisdiction clause contained in           Pleas in law and main arguments adduced in support:
         the bill of lading must be regarded as valid as
         between the carrier and the shipper, does the
         answer to the question whether it is also binding           The Member States are required by the binding character
         on a third party holding the bill of lading also            of the third paragraph of Article 189 and of Article 5 of


title: Judgment of the Court (Fifth Chamber) of 27 November 2003 In Joined Cases C-34/01 to C-38/01 (Reference for a preliminary ruling from the Corte Suprema di Cassazione): Enirisorse SpA v Ministero delle Finanze (Public undertakings — Transfer to public undertakings of a proportion of port charges paid to the State — Competition — Abuse of a dominant position — State aid — Charge having equivalent effect — Internal taxation — Free movement of goods)

text:
24.1.2004               EN                           Official Journal of the European Union                                                    C 21/3
      Article 8(2) and (3) of Council Directive 92/81/EEC of                 C. W. A. Timmermans, A. Rosas, D. A. O. Edward and S. von
      19 October 1992 on the harmonisation of the structures of              Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General;
      excise duties on mineral oils, and Article 5(1) of Council             H. von Holstein, Deputy Registrar, has given a judgment on
      Directive 92/82/EEC of 19 October 1992 on the approxi-                 27 November 2003, in which it has ruled:
      mation of the rates of excise duties on mineral oils;
2.    Orders the Republic of Finland to pay the costs;
                                                                             1.   A measure by which a Member State allocates to a public
                                                                                undertaking a significant proportion of charges, such as the
3.    Orders the Kingdom of Sweden to bear its own costs.                         port charges at issue in the main proceedings, must be classified
                                                                                as State aid within the meaning of Article 92(1) of the EC
                                                                                Treaty (now, after amendment, Article 87(1) EC), in so far as
(1) OJ C 247 of 26.8.2000.                                                        it affects trade between Member States, if:
                                                                                —      the allocation of the charges is not linked to clearly defined
                                                                                public-service duties, and/or
                                                                                —      the compensation allegedly necessary in order for those
                 JUDGMENT OF THE COURT                                                   duties to be performed has not been calculated on the
                                                                                basis of parameters established in advance in an objective
                                                                                and transparent manner, so as to prevent that compen-
                          (Fifth Chamber)                                                sation from conferring an economic advantage which
                                                                                might favour the recipient undertaking over competing
                                                                                undertakings.
                      of 27 November 2003
                                                                                Not only the allocation of a proportion of the charges to a
In Joined Cases C-34/01 to C-38/01 (Reference for a                               public undertaking, but also the collection from users of the
preliminary ruling from the Corte Suprema di Cassa-                               proportion corresponding to the amount so allocated, may
     zione): Enirisorse SpA v Ministero delle Finanze (1)                         constitute State aid incompatible with the common market. If
                                                                                the aid has not been notified, it is for the national court to take
                                                                                all measures necessary, under its national law, to prevent both
(Public undertakings — Transfer to public undertakings of                         the allocation of a proportion of the charges to the recipient
a proportion of port charges paid to the State — Competition                      undertakings and the collection of that proportion of the
— Abuse of a dominant position — State aid — Charge                               charges;
having equivalent effect — Internal taxation — Free move-
                           ment of goods)
                                                                                The fact that the collection and allocation of a proportion of the
                                                                                charges may be unlawful concerns only that proportion of the
                           (2004/C 21/06)                                         charges paid to the public undertaking in question and does not
                                                                                affect the charges as a whole.
                    (Language of the case: Italian)
                                                                             2.   Charges, such as the port charges at issue in the main
(Provisional translation; the definitive translation will be published            proceedings, constitute internal taxation within the meaning of
                   in the European Court Reports)                                 Article 95 of the EC Treaty (now, after amendment, Article 90
                                                                                EC) not falling within the ambit of Article 12 or Article 30 of
                                                                                the EC Treaty (now, after amendment, Articles 25 EC and 28
                                                                                EC). In the absence of any unequal treatment discriminating
                                                                                against goods from other Member States, the measure by virtue
In Joined Cases C-34/01 to C-38/01: Reference to the Court
                                                                                of which a Member State provides for the collection of those
under Article 234 EC by the Corte Suprema di Cassazione
                                                                                charges and the allocation of a significant proportion thereof to
(Italy) for a preliminary ruling in the proceedings pending
                                                                                a public undertaking, when the sum so allocated corresponds to
before that court between Enirisorse SpA and Ministero delle
                                                                                a service actually provided by that undertaking, does not infringe
Finanze, on the interpretation of Article 12 of the EC Treaty
                                                                                Article 95.
(now, after amendment, Article 25 EC), Article 13 of the EC
Treaty (repealed by the Treaty of Amsterdam), Article 30 of
the EC Treaty (now, after amendment, Article 28 EC),
Articles 86 and 90 of the EC Treaty (now Articles 82 EC and
86 EC), Article 92 of the EC Treaty (now, after amendment,                   (1) OJ C 79 of 10.3.2001.
Article 87 EC), Article 93 of the EC Treaty (now Article 88 EC)
and Article 95 of the EC Treaty (now, after amendment,
Article 90 EC), the Court (Fifth Chamber), composed of:
P. Jann, acting for the President of the Fifth Chamber,


title: Order of the Court of First Instance of 26 February 2003 in Case T-7/02: ZAPF Creation AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Amicable settlement — No need to adjudicate)

text:
C 200/22              EN                            Official Journal of the European Union                                        23.8.2003
                                                          COURT OF FIRST INSTANCE
       ORDER OF THE COURT OF FIRST INSTANCE                                 Office for Harmonisation in the Internal Market (Trade Marks
                                                                            and Designs) (OHIM) (Agent: J. F. Crespo Carrillo), the other
                      of 26 February 2003                                   party to the proceedings before the Board of Appeal of the
                                                                            Office for Harmonisation in the Internal Market (Trade Marks
in Case T-7/02: ZAPF Creation AG v Office for Harmoni-                      and Designs) being: JESMAR, SA, established in Alicante
sation in the Internal Market (Trade Marks and Designs)                     (Spain): Action brought against the decision of the First Board
                             (OHIM) (1)                                     of Appeal of the Office for Harmonisation in the Internal
                                                                            Market (Trade Marks and Designs) of 29 October 2001 (Case
(Community trade mark — Opposition — Amicable settle-                       R 418/2000-1), which was served on the applicant on
                 ment — No need to adjudicate)                              5 November 2001, relating to opposition proceedings between
                                                                            ZAPF Creation AG and JESMAR SA, the Court of First Instance
                          (2003/C 200/38)                                   (Fourth Chamber), composed of: V. Tiili, President, P. Mengozzi
                                                                            and M. Vilaras, Judges, Registrar: H. Jung, has made an order
                   (Language of the case: English)
                                                                            on 26 February 2003, the operative part of which is as
                                                                            follows:
In Case T-7/02, ZAPF Creation AG, established in Rödental/
Coburg (Germany), represented by A. Kockläuner, lawyer, v
                                                                            1.    There is no need to adjudicate on the action.
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) (OHIM) (Agent: J. F. Crespo Carrillo), the other
party to the proceedings before the Board of Appeal of the                  2.    The applicant shall pay the costs.
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) being: JESMAR, SA, established in Alicante
(Spain): Action brought against the decision of the First Board             (1) OJ C 109 of 4.5.2002.
of Appeal of the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) of 17 October 2001 (Case
R 1123/2000-1), which was served on the applicant on
29 October 2001, relating to opposition proceedings between
ZAPF Creation AG and JESMAR SA, the Court of First Instance
(Fourth Chamber), composed of: V. Tiili, President, P. Mengozzi
and M. Vilaras, Judges, Registrar: H. Jung, has made an order
on 26 February 2003, the operative part of which is as
follows:
1.    There is no need to adjudicate on the action.                                ORDER OF THE COURT OF FIRST INSTANCE
2.    The applicant shall pay the costs.
                                                                                of 30 April 2003
( ) OJ C 109 of 4.5.2002.
 1
                                                                            in Case T-155/02: VVG International Handelsgesellschaft
                                                                            mbH and Others v Commission of the European Commu-
                                                                                nities (1)
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                            (Regulation (EC) No 3285/94 — Regulation (EC) No 560/
                      of 26 February 2003                                   2002 — Provisional safeguard measures — Actions for
                                                                                annulment — Inadmissibility)
in Case T-8/02: ZAPF Creation AG v Office for Harmoni-
sation in the Internal Market (Trade Marks and Designs)
                             (OHIM) (1)                                                               (2003/C 200/40)
(Community trade mark — Opposition — Amicable settle-
                 ment — No need to adjudicate)
                                                                                (Language of the case: German)
                          (2003/C 200/39)
                   (Language of the case: English)
                                                                            In Case T-155/02: VVG International Handelsgesellschaft mbH,
                                                                            established in Salzburg (Austria), VVG (International) Ltd,
In Case T-8/02, ZAPF Creation AG, established in Rödental/                  established in Gibraltar (United Kingdom), Metalsivas Metall-
Coburg (Germany), represented by A. Kockläuner, lawyer, v                   warenhandelsgesellschaft mbH, established in Vienna (Austria),


title: Case C-5/01: Action brought on 8 January 2001 by the Kingdom of Belgium against the Commission of the European Communities

text:
C 61/8                  EN                     Official Journal of the European Communities                                       24.2.2001
8.    Where the parties have agreed that the employee will                Pleas in law and main arguments
      take premature retirement on the terms offered by the
      employer, what criteria should the national court apply             —     Distortion of the notion of aid as referred to in Article
      in determining whether the transfer of the undertaking is                 4(c) CS and in the steel aids code — manifest error of
      the reason for that agreement in accordance with the                      assessment: Cockerill Sambre has not derived any benefit
      principle enunciated by the Court in Foreningen af                        from the intervention of the Federal and Walloon auth-
      Arbeidsledre-v-Daddy’s Dance Hall, Case 324/86 (2)?                       orities in the implementation of the plan for the reduction
                                                                                of working time, since not only was the company under
                                                                                no legal obligation to pay remuneration for the 34 hours
9.    If the effect of Article 3 of the Directive is to preclude the            worked at the level payable for 37 hours but, in addition,
      transferee from offering transferred employees the option                 the collective working agreement of 17 April 1998
      of taking early retirement on the basis of early retirement               contained no commitment on the part of the company
      benefits that are less beneficial than those to which they                to maintain the. remuneration of those workers affected
      are entitled under the effect of the Directive, what are the              by the reduction in working time.
      consequences for employees who accept early retirement
      on the basis offered to them by the employer?                             Consequently, the transitional increment which the
                                                                                Region of Wallonia has undertaken to pay does not
                                                                                constitute operating costs of the company. That tran-
                                                                                sitional increment is not intended to constitute remuner-
(1) Council Directive 77/187/EEC of 14 February 1977 on the                     ation for work done by the workers affected by the
    approximation of the laws of the Member States relating to the              reduction in working time but to compensate for the
    safeguarding of employees’ rights in the event of transfers                 financial efforts which they have themselves proposed to
    of undertakings, businesses or parts of businesses (OJ L 61,                make with a view to the creation of 150 jobs for young
    05.03.1977, p. 26).                                                         workers.
(2) ECR 1988 p. 739.
                                                                                The reduction in social contributions agreed to by the
                                                                                Federal authorities confers no economic advantage on
                                                                                Cockerill Sambre. The overall number of hours worked
                                                                                within the company has not been altered in response to
                                                                                the plan for the reduction in working time accompanied
                                                                                by the compensatory engagement of 150 young workers.
                                                                                The same number of hours are worked for the company,
                                                                                at the same cost to the company.
                                                                          —     Failure to take account of the notion of a beneficiary: the
                                                                                interventions by the public authorities constitute aid in
                                                                                favour of the Cockerill Sambre workers affected by the
Action brought on 8 January 2001 by the Kingdom
                                                                                scaling-down, and not aid in favour of Cockerill Sambre.
of Belgium against the Commission of the European
                                                                                The fact that aid is granted to workers in their capacity as
                           Communities
                                                                                employees of a specific undertaking does not, as such,
                                                                                preclude it from being categorised as aid to individuals.
                           (Case C-5/01)                                  —     Non-compliance with the procedure laid down by the
                                                                                steel aids code - Lack of competence: the fact that the
                                                                                three-month time-limit prescribed by Article 6(5) has not
                          (2001/C 61/14)                                        been complied with means that the Commission is not
                                                                                competent to decide whether a measure constitutes aid
                                                                                incompatible with the steel aids code.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European              —     Failure to fulfil the obligation to provide a statement of
Communities on 8 January 2001 by the Kingdom of Belgium,                        reasons.
represented by A. Snoecx, acting as Agent, assisted by J.M. De
Backer, G. Vandersanden and L. Levi, lawyers, with an address             —     (In the alternative) Infringement of Article 95 CS: the
for service in Luxembourg.                                                      intervention measures are not intended artificially to
                                                                                maintain jobs in an undertaking which has no commercial
                                                                                or financial viability; instead, they are designed to attain a
                                                                                social objective which is, moreover, championed by the
The Kingdom of Belgium claims that the Court should:                            European Community, namely progress towards the
                                                                                achievement of full employment by means of the redistri-
                                                                                bution of work. In those circumstances, the Commission
—     annul the Commission’s decision of 15 November 2000                       has committed a manifest and obvious error of assess-
      (No C 76/1999) entitled ‘State aid granted by Belgium in                  ment by refusing, on an exceptional basis, to authorise
      favour of the steel undertaking Cockerill Sambre S.A.’;                   the measures in issue under Article 95 CS.
—     order the Commission to pay the costs.


title: Case T-341/03: Action brought on 3 October 2003 by El Corte Inglés S.A. against the Office for Harmonisation in the Internal Market (OHIM)

text:
29.11.2003              EN                         Official Journal of the European Union                                         C 289/35
The applicant claims that the Court should:                                     —     applied an erroneous test on the coverage of costs
                                                                                in place of the only relevant test, which showed that
                                                                                the full costs connected with the services concerned
—     annul the Commission’s decision of 16 July 2003,                                were covered for the whole of the period referred to
      imposing a fine of 10,35 million euros on the applicant;                        in the decision;
—     in the alternative, withdraw the fine or reduce its amount;               —     refused the applicant the right to align its prices on
                                                                                those charged by its competitors;
—     order the Commission to pay the costs.
                                                                                —     committed a serious error of law, exacerbated by
                                                                                obvious errors of assessment, in implementing the
                                                                                test for predatory pricing that it used, particularly
                                                                                by failing to take account of the highly competitive
Pleas in law and main arguments                                                       market context;
                                                                                —     concluded that a predatory pricing plan existed
The applicant, a French limited liability company 99 %-owned                          without adducing the necessary evidence.
by Wanadoo S.A., which is in turn owned as to 70,6 %
by France Telecom, challenges the Commission’s decision
accusing it of infringing Article 82 of the Treaty by charging             In the alternative, the applicant claims that the fine should be
predatory prices for its Pack eXtense and Wanadoo ADSL                     annulled, or very substantially reduced.
services which did not allow it to cover its variable costs from
March to August 2001 or its full costs from August 2001 until
15 October 2002, as part of plan aimed at pre-empting the
market for high-output internet access services. On that
basis, the Commission imposed a fine on the applicant of
10,35 million euros.
In support of its claims, the applicant argues:                            Action brought on 3 October 2003 by El Corte Inglés S.A.
                                                                           against the Office for Harmonisation in the Internal
—     Infringement of essential procedural requirements, and in                                     Market (OHIM)
      particular of its defence rights, in that the Commission:
                                                                                (Case T-341/03)
      —     infringed the principle that violations are to be
            attributed to the offender only, in that it held against
            the applicant matters which it imputes to the ‘France                                   (2003/C 289/71)
            Telecom Group’ and on which neither the applicant
            nor France Telecom were in a position to submit
            observations. In that respect, the applicant insists                             (Language of the case: Spanish)
            that France Telecom and the applicant itself are two
            distinct legal persons;
      —     failed to communicate its final test on the coverage           An action against the Office for Harmonisation in the Internal
            of costs in a statement of objections, and, in its             Market (OHIM) was brought before the Court of First Instance
            decision, determined a duration of the infringement            of the European Communities on 3 October 2003 by El Corte
            longer than that mentioned in the statement of                 Inglés S.A, having its registered office in Madrid, represented
            objections;                                                    by Juan Luis Rivas Zurdo and Emilio López Leiva, lawyers.
      —     gave no reason for abandoning the principle of
            alignment of prices laid down by the Community                 The applicant claims that the Court should:
            case-law.
                                                                           —    set aside the decision of the First Board of Appeal of
—     Infringement of Article 82 of the EC Treaty, in that the                  OHMI of 9 July 2003 in Case R 0565/2002-1;
      Commission:
                                                                           —    refuse to register as a Comunity mark No 488.999
      —     gave an incorrect definition of the market, on which                DAVID LLOYD in Class 25, and
            the applicant had in any case never held a dominant
            position;                                                      —    order the other party or parties to pay the costs.
 ---pagebreak--- C 289/36              EN                          Official Journal of the European Union                                       29.11.2003
Pleas in law and main arguments                                           —     order the Commission (Enterprise Directorate General) to
                                                                                re-evaluate the tender submitted by European Dynamics;
Applicant for the Com-       Whitbread PLC.
munity mark:                                                              —     order the Commission to pay European Dynamics’ legal
                                                                                and other fees and expenses incurred in connection with
Community mark for           Figurative mark ‘David Lloyd’ —                    this Application.
which application was        Application No 488.999 for
made:                        products in Classes 3, 5, 25, 28,
                             36, 41 and 42.
Holder of the mark or        Applicant                                    Pleas in law and main arguments
sign bringing the oppo-
sition proceedings:
Opposing mark or sign:       No 807.974/9 and No 278.853                  The object of the present case is the annulment of the Decision
                             ‘LLOYD’S’, for goods in Class 25             of the European Commission to reject the applicants bid, filed
                             (clothing and general accessories)           in response to the Call of Tender ENTR/02/055 — CORDIS
                                                                          for the ‘Development and Provision of Services in support of
                                                                          the Community R&D Information Service (CORDIS)’ Lot 2
Decision of the Oppo-        Opposition rejected
                                                                          ‘Development’ (OJ 2002/S 225-178776). This Decision con-
sition Division:
                                                                          cluded that the TRASYS/Intrasoft International Consortium
                                                                          bid was superior to that of the applicant.
Decision of the Board of     Appeal dismissed
Appeal:
Reasons relied on:           Incorrect         application       of       CORDIS, the European Commission’s research and develop-
                             Article 8(1)(b) (likelihood of con-          ment information service, is an informatics tool offering
                             fusion), 8(2)(c) (well known earlier         practical information on the European research programs and
                             mark) and 8(5) Regulation (EC)               funding opportunities, facilitating research results take up
                             No 40/94                                     and and technology transfers, hosting services on European
                                                                          innovation, covering all research and innovation related news
                                                                          developments and providing a central access to European and
                                                                          National contact points
                                                                          In support of its conclusions, the applicant submits that:
Action brought on 30 September 2003 by European
Dynamics S.A. against the Commission of the European                      —     The violation of the principles of transparency and non-
                         Communities                                            discrimination, in as much as the provisions on non-
                                                                                paid running-in periods seriously restrict competition by
                                                                                favouring the incumbent contractor since it has been
                        (Case T-345/03)                                         given major financial advantages by the contracting
                                                                                authority unilateral, which allowed it to submit an offer
                                                                                significantly cheaper that any other competitor. Besides,
                        (2003/C 289/72)                                         the time-limit for providing information about the role
                                                                                of Autonomy in CORDIS (Enterprise Directorate General
                  (Language of the case: English)                               addresses such information just four weeks before the
                                                                                tender submission deadline) has given a big advantage to
                                                                                the TRASYS/Intrasoft consortium in relation to other
                                                                                Lot 2 tenderers. Additionally, ensuring the call for tender
                                                                                procedure, all bidders -except the incumbent contractor
An action against the Commission of the European Communi-                       — were prevented from having access to a number of
ties was brought before the Court of First Instance of the                      highly critical technical information on the actual status
European Communities on 30 September 2003 by European                           of the CORDIS projects and particularly on the CORDIS
Dynamics S.A., Athens, (Greece), represented by S. Pappas,                      DATABASE SERVICE. Moreover, the Commission
lawyer.                                                                         declined to communicate to all tenderers significant and
                                                                                useful details on the HW/SW, scripts, technology and
                                                                                processes currently in use for operating the CORDIS
The applicant claims that the Court should:                                     database services, while, at the same time, it asked
                                                                                the tenderers to specify what part of that ‘unknown’
—     annul the Commission’s (Enterprise Directorate General)                   equipment is to be taken over, whilst all this information
      decision to evaluate European Dynamics’ tender as not                     was fully available to TRASYS/Intrasoft right from the
      successful;                                                               beginning.


title: Judgment of the Court of First Instance of 12 June 2002 in Case T-187/01: Arnaldo Mellone v Commission of the European Communities (Officials — Staff reports — Action for annulment — Action for damages)

text:
C 202/26               EN                       Official Journal of the European Communities                                        24.8.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                lawyer, with an address for service in Luxembourg, against
                                                                           Commission of the European Communities (Agents: R. Tricot
                          of 12 June 2002                                  and M. Moretto) — application for annulment of Commission
                                                                           Decision C(1999)1050 of 27 April 1999 (REC 1/98) rejecting
in Case T-187/01: Arnaldo Mellone v Commission of the                      the request not to proceed with the post-clearance recovery of
                  European Communities (1)                                 import duties in respect of canned tuna from Turkey — the
                                                                           Court of First Instance (Fourth Chamber), composed of
(Officials — Staff reports — Action for annulment —                        M. Vilaras, President, V. Tiili and P. Mengozzi, Judges; H. Jung,
                       Action for damages)                                 Registrar, made an order on 14 June 2002, the operative part
                                                                           of which is as follows:
                          (2002/C 202/39)
                                                                           1.   There is no need to adjudicate on the present action.
                   (Language of the case: French)
                                                                           2.   The Commission shall bear all the costs.
In Case T-187/01: Arnaldo Mellone, an official of the Com-
mission of the European Communities, residing in Brussels,                 (1) OJ 1999 C 281.
represented by E. Boigelot, avocat, with an address for service
in Luxembourg, v Commission of the European Communities
(Agents: M. Langer and J. Currall) — application, first, for
annulment of the decision of 10 July 2000 by which the
Director-General of the Employment and Social Affairs Direc-
torate-General declared definitive the applicant’s staff report
for the period from 1 July 1995 to 30 June 1997 and, in so
far as may be necessary, annulment of the rectifying note of                     ORDER OF THE COURT OF FIRST INSTANCE
18 July 2000 and of the decision of the Vice-President of the
Commission of 24 April 2001 rejecting his complaint; second,
for a declaration by the Court that his staff report for                                           of 14 June 2002
1995–1997 has not been definitively drawn up and that it
should be removed from his personal file; and, third, for                  in Case T-325/99: Generale Conserve SpA v Commission
compensation for the professional and non-material damage                                of the European Communities (1)
suffered by the applicant, amounting to 10 000 euros — the
Court of First Instance (Single Judge: H. Legal); J. Palacio
González, Administrator, for the Registrar, has given a judg-             (Common customs tariff — No post clearance recovery of
ment on 12 June 2002, in which it:                                                    import duties — No need to adjudicate)
1.    Dismisses the application;                                                                   (2002/C 202/41)
2.    Orders the parties to bear their own costs.
                                                                                (Language of the case: Italian)
(1) OJ C 289 of 13.10.2001.
                                                                           In Case T-325/99: Generale Conserve SpA, established in
                                                                           Assago (Italy), represented by C. Cigolini, G. Durazzo and
                                                                           M. Hengel, lawyers, with an address for service in Luxembourg,
                                                                           against Commission of the European Communities (Agents:
      ORDER OF THE COURT OF FIRST INSTANCE                                 R. Tricot and M. Moretto) — application for annulment of
                                                                           Commission decision No C(1999) 1596 of 17 June 1999 (REC
                          of 14 June 2002                                  6/98) rejecting the request not to recover, post clearance,
                                                                           import duties by the applicant in respect of canned tuna from
in Case T-179/99: Sud Pesca SpA v Commission of the                        Turkey — the Court of First Instance (Fourth Chamber),
                  European Communities (1)                                 composed of M. Vilaras, President, V. Tiili and P. Mengozzi,
                                                                           Judges; H. Jung, Registrar, made an order on 14 June 2002,
(Common customs tariff — Failure to proceed to post-                       the operative part of which is as follows:
clearance recovery of import duties — Refund of import
                duties — No need to adjudicate)                            1.   There is no need to adjudicate on the present application.
                          (2002/C 202/40)                                  2.   The Commission shall bear all the costs.
                   (Language of the case: Italian)
                                                                           (1) OJ 2000 C 63.
In Case T-179/99: Sud Pesca SpA, established in Aspra
Baghiera (Italy), represented by G. Amenta and M. Merola,