title: JUDGMENT OF THE COURT OF FIRST INSTANCE (First Chamber) of 6 April 1995 in Case T-149/89: Sotralentz SA v. Commission of the European Communities (Competition - Infringement of Article 85 of the Treaty)

text:
3 . 6 . 95          | EN |                 Official Journal of the European Communities                                No C 137/19
3 . dismisses the application as regards the remaining                Milchior, of the Paris Bar, with an address for service in
     claims;                                                          Luxembourg at the chambers of Ernest Arendt, 8—10 Rue
                                                                      Mathias Hardt, v. Commission of the European
4 . orders the applicant to bear its costs and to pay                 Communities ( Agents N. Koch, E. Traversa, J. Currall, A.
     one-third of the Commission 's costs;                            Coutrelis and N. Coutrelis ) — application for the
                                                                      annulment      of  Commission      Decision  89/515/EEC     of
5 . orders the Commission to bear two-thirds of its
     costs .
                                                                      2 August 1989 relating to a proceeding under Article 85 of
                                                                      the EEC Treaty ( IV/3 1.553 — Welded steel mesh, OJ 1989 L
(') OJ No C 306 , 5 . 12 . 1989 .                                     260, p. 1 ) — the Court of First Instance ( First Chamber ),
                                                                      composed of H. Kirschner, President, C. W. Bellamy, B.
                                                                      Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,
                                                                      H. Jung, Registrar, gave a judgment on 6 April 1995 , in
                                                                      which the Court:
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                      I. annuls Article 1 of Commission Decision 89/515/EEC
                        ( First Chamber )                                  of 2 August 1989 relating to a proceeding under
                        of 6 April 1995                                    Article 85 ofthe EEC Treaty (IV/3 1.553 — Welded steel
in Case T-147/89: Société Métallurgique de Normandie                       mesh) as regards the finding therein that there was an
       v. Commission of the European Communities ( ] )                     agreement between the applicant and Baustahlgewebe
                                                                           GmbH to subject their future exports to quotas;
(Competition — Infringement of Article 85 of the
                               Treaty)                                2 . reduces the amount of the fine imposed on the applicant
                          ( 95/C 137/45 )                                  by Article 3 of that Decision to ECU 1 235 000;
                (Language of the Case: French)                        3 . dismisses the application as regards the remaining
                                                                           claims;
In Case T-147/89 : Societe Metallurgique de Normandie,
established in Mondeville ( France ), represented by Robert           4 . orders the applicant to bear its costs and to pay
Collin and Richard Milchior, of the Paris Bar, with an                     four-fifths ot the Commission 's costs;
address for service in Luxembourg at the Chambers of                  5 . orders the Commission to bear one-fifth of its costs.
Ernest Arendt, 8—1 0 Rue Mathias Hardt, v. Commission of
the European Communities ( Agents N. Koch, E. Traversa, J.
                                                                      (') OJ No C 306 , 5 . 12 . 1989 .
Currall, A. Coutrelis and N. Coutrelis ) — application for
the annulment of Commission Decision 89/515/EEC of
2 August 1989 relating to a proceeding under Article 85 of
the EEC Treaty ( IV/31.553 — Welded steel mesh, OJ 1989
L 260 , p. 1 ) — the Court of First Instance ( First Chamber ),
composed of H. Kirschner, President, C. W. Bellamy, B.                 JUDGMENT OF THE COURT OF FIRST INSTANCE
Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,                                     (First Chamber )
H. Jung, Registrar, gave a judgment on 6 April 1995 , in
which the Court :                                                                             of 6 April 1995
                                                                      in Case T-149/89 : Sotralentz SA v. Commission of the
I. dismisses the application;                                                           European Communities (*)
2 . orders the applicant to pay the costs.                            (Competition — Infringement of Article 85 of the
                                                                                Treaty)
(') OJ No C 306 , 5 . 12 . 1989 .                                                               ( 95/C 137/47 )
                                                                                (Language of the Case: French)
                                                                      In Case T-149/89 : Sotralentz SA, established in Drulingen
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                      ( France ), represented by Xavier de Mello, Philippe Pepy and
                        ( First Chamber )                             Jean Christian Percerou, of the Paris Bar, with an address for
                        of 6 April 1995                               service in Luxembourg at the Chambers of Bruno Decker,
in Case T-148/89 : Trefilunion SA v. Commission of the                16 Avenue Marie-Therese, v. Commission of the European
                  European Communities i 1 )                          Communities (Agents N. Koch, E. Traversa, J. Currall, A.
                                                                      Coutrelis and N. Coutrelis ) — application for the
(Competition — Infringement of Article 85 of the                      annulment      of  Commission      Decision  89/515/EEC     of
                               Treaty)                                2 August 1989 relating to a proceeding under Article 85 of
                          ( 95 /C 137/46 )                            the EEC Treaty (IV/31.553 — Welded steel mesh, OJ 1989 L
                                                                      260 , p. 1 .) — the Court of First Instance ( First Chamber ),
                (Language of the Case: French)                        composed of H. Kirschner, President, C. W. Bellamy, B.
                                                                      Vesterdorf, R. Garcia-Valdecasas and K. Lenaerts, Judges,
In Case T-148/89 : Trefilunion SA, established in Puteaux             H. Jung, Registrar, gave a judgment on 6 April 1995 , in
( France ), represented by Robert Collin and Richard                  which the Court:
 ---pagebreak--- No C 137/20              EN                  Official Journal of the European Communities                                     3 . 6 . 95
1 . annuls Article 1 of Commission Decision 89/515/EEC                  JUDGMENT OF THE COURT OF FIRST INSTANCE
       of 2 August 1989 relating to a proceeding under                                          (First Chamber)
       Article 85 of the EEC Treaty (IV/3 1 . 553 — Welded steel
       mesh) as regards the findings therein that the applicant                                 of 6 April 1995
       participated in an agreement defining price and quotas           in Case T-151 /89 : Société des Treillis et Panneaux Soudés
       on the French market in the period 1981 /82, that it                 SA v. Commission of the European Communities ( l )
       participated after June 1 984 in an agreement having the         (Competition — Infringement of Article 85 of the
       same object on the French market in the period 1 983/84,                                         Treaty)
       and that it participated in an agreement with                                              ( 95/C 137/49 )
       Baustahlgewebe GmbH having as its object the
       application of quotas to its exports to the German
       market;                                                                        (Language of the Case: French)
2 . reduces the amount of the fine imposed on the applicant
       by Article 3 of that Decision to ECU 57 000;                     In Case T-151 / 89 : Societe des Treillis et Panneaux Soudes
                                                                        SA, established in Puteaux ( France ), represented by Robert
3 . dismisses the application as regards the remaining                  Collin and Richard Milchior, of the Paris Bar, with an
       claims;                                                          address for service in Luxembourg at the Chambers of
                                                                        Ernest Arendt, 8—10 Rue Mathias Hardt, v. Commission of
4 . orders the Commission to bear its costs and to pay                  the European Communities ( Agents N. Koch, E. Traversa , J.
       one-half of the applicant's costs;                               Currall, A. Coutrelis and N. Coutrelis ) — application for
                                                                        the annulment of Commission Decision 89/515/EEC of
5 . orders the applicant to bear one-half of its costs.
                                                                        2 August 1989 relating to a proceeding under Article 85 of
                                                                        the EEC Treaty ( IV/3 1.553 — Welded steel mesh, OJ 1989 L
f 1 ) OJ No C 306 , 5 . 12 . 1989 .
                                                                        260 , p. 1 ) — the Court of First Instance ( First Chamber ),
                                                                        composed of H. Kirschner, President, C. W. Bellamy, B.
                                                                        Vesterdorf, R. Garcfa-Valdecasas and K. Lenaerts, Judges,
                                                                        H. Jung, Registrar, gave a judgment on 6 April 1995 , in
                                                                        which the Court:
 JUDGMENT OF THE COURT OF FIRST INSTANCE
                           ( First Chamber )                            I . dismisses the application;
                           of 6 April 1995
in Case T-l 50/89 : G. B. Martinelli v. Commission of the
                                                                        2 . orders the applicant to pay the costs.
                    European Communities ( 1 )
 (Competition — Infringement of Article 85 of the EEC                   («) OJ No C 306 , 5 . 12 . 1989 .
                                 Treaty)
                             ( 95/C 137/48 )
                  (Language of the Case: Italian)
In Case T-150/89 : G. B. Martinelli, formerly G. B.
Metallurgica SpA, established in Milan ( Italy), represented             JUDGMENT OF THE COURT OF FIRST INSTANCE
by Carmelo Maccarone, of the Bergamo Bar, with an                                               (First Chamber)
address for service in Luxembourg at the Chambers of
                                                                                of 6 April 1995
Franco Colussi, 36 Rue de Wiltz, v. Commission of the
European Communities ( Agents : E. Traversa , J. Currall and            in Case T-152/89: ILRO SpA v. Commission of the
A. Dal Ferro ) — application for the annulment of                                        European Communities ( J )
Commission Decision 89/515/EEC of 2 August 1989                          (Competition — Infringement of Article 85 of the
relating to a proceeding under Article 85 of the EEC Treaty                                             Treaty)
( IV/3 1.553 — Welded steel mesh, OJ 1989 L 260, p. 1 .) —                                         ( 95 /C 137/50
the Court of First Instance ( First Chamber ), composed of H.
Kirschner, President of the Chamber, C. W. Bellamy, B.
Vesterdorf, R. Garcfa-Valdecasas and K. Lenaerts , Judges,                             (Language of the Case: French)
H. Jung, Registrar, has given a judgment on 6 April 1995 , in
which it:
                                                                        In Case T-152/89 : ILRO SpA, established in
 I. dismisses the application;                                          Lecco-Pescarenico ( Italy), represented by Maurice Laredo,
                                                                        of the Paris Bar, with an address for service in Luxembourg
2 . orders the applicant to pay the costs.                              at the Chambers of Ernest Arendt, 8—10 Rue Mathias
                                                                        Hardt, v. Commission of the European Communities
 ( i ) OJ No C 306 , 6 . 12 . 1989 .                                     ( Agents E. Traversa, A. Dal Ferro ) — application for the
                                                                        annulment     of  Commission          Decision 89/515/EEC      of
                                                                        2 August 1989 relating to a proceeding under Article 85 of


title: Action brought on 7 December 1998 by Atlantic Container Line AB and 11 Others against the Commission of the European Communities (Case T-191/98)

text:
27.3.1999            EN               Official Journal of the European Communities                                   C 86/19
Action brought on 7 December 1998 by Atlantic                    dated 16 September 1998 which is the subject of this
Container Line AB and 11 Others against the Commission           application.
               of the European Communities
                      (Case T-191/98)
                                                                 The contested decision finds that the applicants have
                       (1999/C 86/39)                            committed three infringements of Article 85 of the EC
                                                                 Treaty and Article 53 of the EEA Agreement and two
                                                                 abuses of a collective dominant position under Article 86
                                                                 of the EC Treaty and Article 54 of the EEA Agreement.
              (Language of the case: English)                    The contested decision orders the applicants to terminate
                                                                 those infringements and imposes fines amounting, in total,
                                                                 to ECU 273 million, the highest ever imposed on a group
                                                                 of companies in the history of EC competition law.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 7 December
1998 by Atlantic Container Line AB, represented by John          A. P r o c e d u r a l I s s u e s
Pheasant, Nicholas Bromfield and Matthew Levitt of
Lovell White Durrant, Denis Waelbroeck and Ute
Zinsmeister of Liedekerke SimeÂon Wessing Houthhoff,             1. The applicants submit that the contested decision
with an address for service in Luxembourg at the                     should be annulled for failure to respect the
Chambers of Loesch and Wolter, 11, rue Goethe.                       applicant's right to be heard in the following respects:
                                                                     Ð the Commission's administrative procedure leading
The applicants claim that the Court should:                              to the adoption of the decision was defective in
                                                                         that the Commission did not address a valid
                                                                         statement of objections to the applicants;
Ð annul the Commission decision of 16 September 1998
    relating to a proceeding pursuant to Articles 85 and             Ð the decision contains a finding of infringement,
    86 of the EC Treaty (Case No IV/35.134 Ð                             namely, the abusive alteration of the structure of
    Trans-Atlantic Conference Agreement);                                the market, which was based on allegations on
                                                                         which the applicants were given no opportunity to
                                                                         comment in the administrative procedure;
Ð in any event, annul the fines imposed on each of the
    applicants or reduce such fines by the amounts                   Ð in any event, the decision contains many matters,
    considered appropriate by the Court in all the                       material to its adoption on which the applicants
    circumstances;                                                       were given no opportunity to comment during the
                                                                         administrative procedure in accordance with the
                                                                         applicable legal principles.
Ð order the Commission to pay the applicants' costs; and
                                                                 2. The applicants submit that the Commission has
                                                                     infringed the applicants' right of defence by not
                                                                     granting proper access to the file.
Ð order the Commission to pay the costs incurred by
    each applicant in providing a bank guarantee or other
    security in lieu of payment of the fines pending
    judgment by the Court.                                       3. The applicants submit that the Commission's appraisal
                                                                     of the case and its conduct of the procedure is
                                                                     defective for two reasons:
Pleas in law and main arguments adduced in support:
                                                                     Ð the Commission did not conduct the procedure or
                                                                         assess the relevant facts, evidence and issues in
                                                                         accordance with the obligations of good
The applicants are liner shipping companies which,                       administration, objectivity and impartiality;
throughout the whole or part of the three years,
1994Ð1996, were members of the Trans-Atlantic
Conference Agreement, a liner shipping conference                    Ð the Commission did not carry out a properly
operating on the transatlantic trade between Northern                    reasoned analysis of the relevant facts, evidence
Europe and the United States of America. The applicants                  and issues in accordance with the obligations
are addressees of a decision of the European Commission                  arising out of Article 190 of the EC Treaty.
 ---pagebreak--- C 86/20                  EN              Official Journal of the European Communities                                   27.3.1999
B. A r t i c l e 8 5 I s s u e s                                        Ð an analysis of rates rebuts the finding that the
                                                                             applicants were dominant in the years
                                                                             1994Ð1996.
1. The applicants submit that the prohibition of
   European Intermodal Authority by virtue of Articles 1
   and 4 of the decision should be annulled.                        3. The applicants submit that the finding of abuse
                                                                        identified at Article 6 of the decision (namely, the
                                                                        alleged imposition of restrictions on the availability
                                                                        and contents of service contracts) should be annulled
2. The applicants submit that the Commission's                          for inter alia the following reasons:
   prohibition, in Articles 3 and 4 of the decision, of the
   applicant's agreement concerning the terms and
   conditions under which they may enter into service                   Ð the decision does not discharge the Commission's
   contracts with shippers should be annulled.                               duty to state reasons in accordance with
                                                                             Article 190 of the EC Treaty;
3. The applicants submit that the prohibition in Articles 2             Ð the Commission's assessment of the applicants'
   and 4 of the decision, in relation to the applicants'                     service contract rules under Article 86 of the EC
   agreement of maximum levels of freight forwarder                          Treaty is flawed.
   compensation and brokerage fees and related matters
   should be annulled.
                                                                        The applicants further submit that the finding of abuse
                                                                        identified at Article 5 of the decision (namely, the
C. A r t i c l e 8 6 I s s u e s                                        alleged alteration of the competitive structure of the
                                                                        market) should be annulled for inter alia reasons:
1. The applicants submit that the finding that the                      Ð the facts concerning the entry by Hanjin and
   applicants were capable of occupying a collective                         Hyundai into the transatlantic trade, and the
   dominant position should be annulled for inter alia the                   contacts between the applicants and other
   following reasons:                                                        operators concerning the possible entry of such
                                                                             other operators into the trade, are inconsistent
                                                                             with a finding of abuse;
   Ð the Commission's finding that the applicants are
        capable of occupying a collective dominant
        position is based on its failure do adopt the correct           Ð the applicants' alleged dual-rate service contracts'
        legal test of collective dominance and is vitiated by                provide no basis in fact for a finding of abuse;
        a lack of reasoning, contrary to Article 190 of the
        EC Treaty;
                                                                        Ð the Commission's finding that the applicants
                                                                             reserved' NVOCC business to certain of them is
   Ð the evidence of the applicants' individual strategies                   inconsistent with the facts;
        for competing on the price and service elements
        precludes a finding that the applicants were
                                                                        Ð there was no appreciable effect on competition.
        capable of occupying a collective dominant
        position.
                                                                    D. F i n e s
2. The applicants submit that the finding that the
   applicants in fact occupied a collective dominant
                                                                    In support of their request that the fines imposed should
   position in 1994Ð1996 should be annulled for inter
                                                                    be annulled or substantially reduced, the applicants submit
   alia the following reasons:
                                                                    inter alia the following arguments:
   Ð the Commission's definition of the relevant service
        and geographic market is flawed since it has failed         Ð contrary to the requirements of Article 19(2) of
        to apply the correct economic and legal test to the             Council Regulation (EEC) No 4056/86 (1) and
        facts;                                                          Article 190 of the EC Treaty, there is no finding that
                                                                        the applicants committed any intentional or negligent
                                                                        infringement;
   Ð the applicants' share of the relevant market, as
        defined either by the Commission or the
        applicants, provides no basis for a finding of              Ð in any event, the applicants have not intentionally or
        dominance;                                                      negligently infringed Article 86 of the EC Treaty;
 ---pagebreak--- 27.3.1999              EN                 Official Journal of the European Communities                                     C 86/21
Ð the Commission has erroneously disregarded the                     Pleas in law and main arguments adduced in support:
     applicants' immunity from fines in respect of the
     alleged restrictions on the availability and contents of
     service contracts;                                              In this application, the applicant, an official in Grade A 4,
                                                                     step 8, assigned to DG C2 of the Secretariat General of
                                                                     the Council, is seeking compensation for the loss suffered
Ð the Commission has failed to apply a rational and                  as a result of the numerous erros committed by the
     coherent methodology to its calculation of the fines,           defendant which left her without a post for a long period
     contrary to fundamental principles of Community law;            in her career and committed errors and faults in drawing
                                                                     up her Staff Report for the period 1993 to 1995.
Ð the Commission's assessment of the gravity and
     duration of the alleged infringements is flawed;
                                                                     According to the applicant, the defendant discriminated
                                                                     against her with regard to colleagues who were in
Ð the Commission has failed to take into account the                 situations identical to, or even less favourable than, her
     individual positions of each applicant and various              own (and were promoted), thus adversely affecting the
     mitigating factors.                                             proper progress of her career and, in particular, the
                                                                     promotion she was entitled to expect by virtue both of her
(1) Council Regulation (EEC) No 4056/86 of 22 December 1986          ability and her length of service. The defendant also
    laying down detailed rules for the application of Articles 85    disregarded the principles governing the Council Decision
    and 86 of the Treaty to maritime transport (OJ L 378,            of 18 October 1981 laying down the general provisions
    31.12.1986, p. 4).                                               for implementation of Article 43 of the Staff Regulations
                                                                     of Officials concerning Staff Reports.
                                                                     The harm suffered by the applicant results both from the
                                                                     absence of her 1993 to 1995 Staff Report at the time of
                                                                     the 1996 promotion procedure, and from the adverse
Action brought on 17 December 1998 by Gisela                         effect on her career progress, in particular the fact that she
    Stodtmeister against Council of the European Union               was not promoted.
                        (Case T-200/98)
                         (1999/C 86/40)
                (Language of the case: French)
                                                                     Action brought on 24 December 1998 by Lea
An action against the Council of the European Union was              Tessaro-Treibenreif against the Commission of the
brought before the Court of First Instance of the European                              European Communities
Communities on 17 December 1998 by Gisela
Stodtmeister, residing in Tervuren (Belgium), represented                                   (Case T-210/98)
by Georges Vandersanden and Laure Levi, of the Brussels
                                                                                (1999/C 86/41)
Bar, with an address for service in Luxembourg at the
Offices of the Fiduciaire Myson SARL, 30 Rue de
Cessange.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
Ð award her compensation for her loss, in the sum of                 Instance of the European Communities on 24 December
     BEF 500 000, resulting from the absence of her Staff            1998 by Lea Tessaro-Treibenreif, residing in Luxembourg,
     Report for the period 1993 to 1995, on the occasion             represented by Carlo Revoldini, of the Luxembourg Bar,
     of the 1996 promotion procedure;                                with an address for service in Luxembourg at 180 Route
                                                                     de Longwy.
Ð award her a sum, by way of damages, equivalent to
     the difference in her salary between Grade A 3, to
     which she could legitimately have hoped to have been            The applicant claims that the Court should:
     appointed in January 1996, and Grade A 4, step 8,
     which she currently holds, and restoration of her
     career path together with the financial implications            Ð annul the decision of the European Commission
     thereof;                                                            suspending with retroactive effect from 1 January
                                                                         1997 the double dependent child allowance paid to
                                                                         the applicant pursuant to Article 67(3) of the Staff
Ð order the Council to pay all the costs.                                Regulations of Officials until June 1998;


title: Action brought on 2 December 1996 by Consorzio del Formaggio Parmigiano Reggiano and Società Cooperativa Latteria Sociale Spadarotta arl against Commission of the European Communities (Case T-197/96)

text:
22 . 2 . 97          ΓEN                   Official Journal of the European Communities                                  No C 54/27
She considers in that regard that the appointing authority            The pleas in law and main arguments are the same as
misused its power of assessment in taking the view that               those previously relied on in Cases T-128/96 Lebedef v.
her extensive experience in the field in which she was                Commission (M and T-161 /96 Bosetti v. Commission ( 2 ).
established and her significant intellectual and human
qualities were not so exceptional as to justify appointment           (') OJ No C 318 , 26 . 10 . 1996 , p. 17.
to grade A6 .                                                         ( 2 ) Not yet published in the Official Journal .
According to the applicant, the contested decision
therefore infringes Article 31 ( 2 ) of the Staff Regulations,
as well as the 1983 decision on the criteria applicable to
appointment in grade and classification in step on
recruitment .                                                         Action brought on 2 December 1996 by Consorzio del
                                                                      Formaggio Parmigiano Reggiano and Società Cooperativa
                                                                      Latteria Sociale Spadarotta ari against Commission of the
(>) [ 1995 ] ECR-SC 11-683 .                                                                European Communities
                                                                                ( Case T-197/96 )
                                                                                ( 97/C 54/45 )
                                                                                (Language of the case: Italian)
Action brought on 14 October 1996 by Giorgio Lebedef
   against the Commission of the European Communities                 An action against the Commission of the European
                                                                      Communities was brought before the Court of First
                         ( Case T-196/96 )                            Instance of the European Communities on 2 December
                            ( 97/C 54/44 )                            1996 by Consorzio del Formaggio Parmigiano Reggiano,
                                                                      whose registered office is at Reggio Emilia ( Italy ), and
                                                                      Societa Cooperativa Latteria Sociale Spadarotta arl, whose
                 (Language of the case: French)                       registered office is at Montecchio Emilia ( Italy ),
                                                                      represented by Fausto Capelli and Luigi Sordelli, of the
                                                                      Milan Bar, and Louis Schiltz, of the Luxembourg Bar, with
An action against the Commission of the European                      an address for service in Luxembourg at the Chambers of
Communities was brought before the Court of First                     Louis Schiltz, 2 rue du Fort Rheinsheim .
Instance of the European Communities on 14 October
1996 by Giorgio Lebedef, residing at Senningerberg
( Luxembourg ), represented by Gilles Bouneou, of the                 The applicants claim that the Court should:
Luxembourg Bar, with an address for service in
Luxembourg at his Chambers, 15 avenue du Bois .                       — declare that the applicants have capacity to bring this
                                                                            action,
The applicant claims that the Court should :                          — annul Commission Decision ( 96/536/EEC ) of 29 July
                                                                             1996 ( ] ) in so far as it mentions in the Annex the
— annul the Commission's decision of 31 October 1995,                       German cheeses 'Kase von Typ Parmesan', ' Parmesan'
                                                                            and 'Duramont-Typ Parmesan',
— annul the refusal to admit the independent trade union              — order the Commission to pay all the costs of the
      'Action & Defense — Luxembourg' to the framework                      proceedings .
      agreement,
                                                                      Pleas in law and main arguments adduced in support:
— annul the prohibition against carrying on trade union
      activities during working hours and on the                      The applicants contest the inclusion of the names 'Kase
      Commission's premises,                                          von Typ Parmesan', ' Parmesan ' and 'Duramont-Typ
                                                                      Parmesan' in the list drawn up by the Commission of
                                                                      milk-based products in respect of which Member States
— order the Commission to pay all the costs .                         are authorized to grant individual or general derogations
                                                                      pursuant to Article 8 ( 2 ) of Directive 92/46/EEC ( 2 ) laying
                                                                      down the health rules for the production and placing on
Pleas in law and main arguments adduced in support:                   the market of raw milk, heat-treated milk and milk-based
                                                                      products .
The applicant, secretary-general of the trade union 'Action
&c Defense — Luxembourg', contests in particular the                  According to the applicants, the designations of the
defendant's refusal to admit that trade union to the                  cheeses so protected constitute obvious imitation of the
framework agreement of 20 September 1974 concerning                   names of famous Italian cheeses . It should be noted in this
relations between the Commission and trade unions and                 respect that the term 'Parmesan' is the literal translation
staff associations .                                                  of the Italian term 'parmigiano'.
 ---pagebreak--- No C 54/28                EN                   Official Journal of the European Communities                                  22 . 2 . 97
In support of their claims, the applicants allege breach of               for service in Luxembourg at the Chambers of Evelyne
Article 39 of the EC Treaty read in conjunction with                      Korn , 21 , rue de Nassau .
Council Regulation ( EEC ) No 2081 /92 (') on the
protection of geographical indications and designations of                The applicant claims that the Court should :
origin for agricultural products and foodstuffs and with
Commission Regulation ( EC ) No 1107/96 ( 4 ) on the                      — annul the decision classifying her in grade A7, of
registration of geographical indications and designations                       which she was notified by a note dated 5 January
of origin under the procedure laid down in Article 17 of                        1996 ,
Council Regulation ( EEC ) No 2081 /92 .
                                                                          — annul the decision rejecting her administrative
In this connection , according to the applicants , while                        complaint, of which she was notified by a note dated
Parmigiano Reggiano was included in the list of                                 1 August 1996 , received on 3 September 1996 ,
registrations under Regulation No 2081 /92 ('), no
designation of German cheese was registered under the                     — annul , in so far as may be necessary, notice of
name 'Parmesan ', since such a designation must be                              competition COM/T/A/94, inasmuch as it provides
considered to be unlawful if it is used to indicate cheese                      that members of the temporary staff recruited as
produced outside the area of protection supervised by the                       officials are to be classified , subject to certain
Consorzio del Formaggio Parmigiano Reggiano . On the                            conditions , in the grade which they occupied at the
other hand, they claim that the derogation provided for by                      time when the list of suitable candidates was drawn
Article 13 ( 2 ) of Regulation ( EEC ) No 2081 /92 cannot                       up ,
apply to the German cheeses listed in the contested
decision, because the products covered by the protective                  — order the Commission to pay the costs .
term must have been marketed legally for at least five
years before the date of publication of Regulation ( EEC )                Pleas in law and main arguments adduced in support:
No 2081 /92 . There exists a bilateral agreement between
Italy and Germany as a result of which the fundamental                    The applicant, an official in grade A7, step 6 , contests the
condition that the products referred to in Article 13 ( 2 ) of            decision of the Commission expressly refusing her
Regulation No 2081 /92 must have been lawfully marketed                   appointment to grade A6 .
is not satisfied . On the basis of that agreement, Germany
undertook to recognize and protect various typical                        She pleads infringement of the second sentence of the
designations of traditional Italian products , including                  second paragraph of Article 25 of the Staff Regulations,
Parmigiano Reggiano .                                                     claiming that the contested decision contained no
                                                                          statement of the grounds on which is was based . The
The applicants also claim that the Commission failed to                   applicant further considers that the Commission
perform its duties under Article 155 of the EC Treaty. In                 committed a manifest error of assessment in failing to
that connection they consider that not only did the                       regard her professional and academic qualifications as
defendant fail to take steps to prevent a Member State                    exceptional , so as to allow the application of Article 31
from acting in breach of Article 13 ( 2 ) of Regulation                   ( 2 ) of the Staff Regulations, and maintains that there has
( EEC ) No 2081 /92 , but it even ratified that breach by                 been a breach of the duty to have regard for the welfare
                                                                          and interests of officials .
recognizing as lawful the designation of a cheese which
was on the contrary prohibited , since such designation is
reserved for a product covered by Community protection .
(')   OJ No  L 230,  11 . 9.   1996 , p. 12 .
(2)   OJ No  L 268 , 14 . 9.   1992 , p. 1.
O     OJ No  L 208 , 24 . 7.   1992 , p. 1.                               Action brought on 4 December 1996 by Laboratoires
(4 )  OJ No  L 148 , 21 . 6.   1996 , p. 1.                               Pharmaceutiques Bergadem SA and Jean-Jacques Goupil
                                                                              against the Commission of the European Communities
                                                                                ( Case T- 199/96 )
                                                                                ( 97/C 54/47 )
                                                                                (Language of the case: French)
Action brought on 3 December 1996 by Christine Dalby
     against the Commission of the European Communities                   An action against the Commission of the European
                             ( Case T-198/96 )                            Communities was brought before the Court of First
                                                                          Instance of the European Communities on 4 December
                                ( 97/C 54/46 )
                                                                          1996 by Laboratoires Pharmaceutiques Bergadem SA, the
                                                                          registered office of which is at Rungis ( France ), in the
                  (Language of the case: French)                          person of Jacqueline Cariven, its administrator appointed
                                                                          by judgment of the Tribunal de Commerce ( Commercial
An action against the Commission of the European                          Court ), Creteil , of 5 October 1995 , and Jean-Jacques
Communities was brought before the Court of First                         Goupil , residing at Chevreuse ( France ), represented by
Instance of the European Communities on 3 December                        Jean-Pierre Spitzer, of the Paris Bar, with an address for
1996 by Christine Dalby, residing in Brussels, represented                service in Luxembourg at the Chambers of Aloyse May,
bv Marc-Albert Lucas , of the Liege Bar, with an address                  31 Grand-Rue .


title: Case T-15/02: Action brought on 31 January 2002 by BASF AG against the Commission of the European Communities

text:
4.5.2002              EN                    Official Journal of the European Communities                                      C 109/49
Pleas in law and main arguments                                        Action brought on 31 January 2002 by BASF AG against
                                                                              the Commission of the European Communities
                                                                                (Case T-15/02)
The applicants import organic, fair-trade and conventionally
grown bananas into the European Union. They are all non-
traditional importers of bananas who have requested and                                        (2002/C 109/97)
received a C quota for 2002. Because of Commission Regu-
lation 2294/2001, the applicants are allowed to import during
the first quarter of 2002 only 8 % of their quota, while the                              (Language of the case: English)
traditional C operators can import 26 % of their quota, and
the traditional and non-traditional A and B operators 27 %.
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of First Instance of the
According to the applicants, the Commission has misused its            European Communities on 31 January 2002 by BASF AG,
powers in that the Commission, by the contested Regulation,            represented by Mr Nicholas Levy, Dr John Temple Lang,
favours the traditional C operators. Following the agreement           Mr Robert O’Donoghue and Dr Christoph Feddersen of Cleary,
reached between the European Union and the United States,              Gottlieb, Steen & Hamilton, Brussels (Belgium).
and the agreement with Ecuador to resolve the respective
disputes over bananas, the banana regime in the European
Union will be reformed in two stages. The second stage
includes a reduction of the C quota by 100 000 tonnes. As a            The applicant claims that the Court should:
consequence of the contested Regulation, the burden of the
decrease of the C quota will be imposed, according to
the applicant, solely on the non-traditional importers. The            —     annul or substantially reduce the fine imposed on BASF
applicant points out that if this limitation of 8 % is taken                 pursuant to Article 3(b) of the Decision;
through the whole year, this leads to a reduction of the import
under the C quota of approximately 100 000 tonnes.
                                                                       —     order the Commission to pay BASF’s legal and other costs
                                                                             and expenses in relation to this matter.
Furthermore, the contested Regulation violates the principles
of proportionality and non-discrimination. The non-tra-
ditional C operators are the only operators who can import
                                                                       Pleas in law and main arguments
only 8 % of their quota in the first quarter. This limitation
discriminates, according to the applicant, between the tra-
ditional and non-traditional C operators in particular. The
contested measure is also disproportionate, since the Com-             The present application concerns a Decision of the European
mission places the burden of the decrease of the C quota solely        Commission rendered on 21 November 2001, in case
on the non-traditional C operators. Instead the Commission             No. COMP/E-1/37.512-Vitamins. This Decision finds that a
could have spread this burden between the traditional and              number of companies infringed Article 81 EC and Article 53
non-traditiona C operators. According to the applicant, it is          EEA by participating in a cartel that affected the global markets
also unlikely that the Commission will divide the remaining            for vitamins A, E, B2, B5, C, D3 and Beta-carotene and
92 % of the quota over the remainder of the year.                      carotinoids. The fines imposed on the companies involved
                                                                       were the highest ever in a competition law case.
Finally, the applicants claim that there has been a violation of
                                                                       In support of its claims, the applicant relies on and submits
the principle of legitimate expectations and legal certainty.
                                                                       the following grounds and main arguments:
According to the applicants, the current 8 % allocation is a
complete departure from the Commission’s earlier practices
where allocations of 26 to 28 % were given to the non-                 —     Whilst the statements of objections stated that there was
traditional C operators for the first quarter of the year. The               a single cartel, comprising collusive arrangements with
applicants also claim that they could legitimately rely on the               regard to various vitamins, the contested Decision, in
fact that the decrease of the C quota would be divided between               contrast, stated for the first time that the arrangements
the different traditional and non-traditional operators in a                 with regard to each vitamin constituted ‘distinct’ infringe-
proportionate manner.                                                        ments of Community competition law. The Commission
                                                                             has thus breached the principle according to which a
                                                                             Decision cannot rely on legal or factual objections
                                                                             that are materially different from those contained in a
                                                                             statement of objections.
 ---pagebreak--- C 109/50               EN                     Official Journal of the European Communities                                          4.5.2002
—     The Commission’s failure clearly to articulate in the              —     annul the decision concerning family allowances taken in
      statement of objections the basis upon which it proposed                 the form of Notice of Amendment No 3 on 13 July
      to fine BASF represents a legal error that prejudiced                    2001 by the Directorate-General for Personnel and
      BASF’s rights of defence. This statement of objections is                Administration of the European Commission;
      general and vague as regards the elements relating to the
      calculation of the fine. On this point, the applicant also
      observes that the ‘starting point’ of its fine was arbitrary,      —     declare that the applicant and her stepdaughters are
      disproportionate and contrary to the principle of equal                  entitled to receive the family allowances suspended by
      treatment, and that the 100 % increase imposed upon it                   the Commission’s decision of 13 July 2001 together with
      as a deterrent is unexplained, excessive and could not                   default interest, pursuant to Article 67 of the Staff
      reasonably have been foreseen.                                           Regulations;
—     The Commission erred in attributing to BASF the joint
      role of leader and instigator of the alleged cartel.               —     order the European Commission to pay the sum of
                                                                               EUR 35 935 together with statutory interest by way of
                                                                               compensation for the material damage caused by its
—     The applicant satisfied all the conditions for an award of               failure to give an express decision upholding the com-
      a greater reduction of its fine under Section B of the                   plaint lodged on 14 September 2001;
      Leniency Notice. In any case, irrespective of this Leniency
      Notice, BASF’s co-operation merits a greater reduction of
      its fine.                                                          —     order the European Commission to pay the sum of
                                                                               EUR 25 000 or such other amount, including any higher
                                                                               amount, as may be determined by the Court of First
—     The Commission’s disclosure of BASF’s fine to the                        Instance by way of compensation for the non-material
      media prior to the adoption of the contested Decision                    damage suffered, first, as a result of the failure to respond
      constitutes a material legal error.                                      to the complaint lodged on 14 September 2001 and,
                                                                               second, the incorrect and fallacious information provided
                                                                               to the European School by the defendant;
                                                                         —     order the defendant to pay all the costs, including lawyers’
                                                                               fees, incurred as a result of the action brought pursuant
                                                                               to Article 90(1) of the Staff Regulations;
Action brought on 5 February 2002 by Anita Jannice                       in the alternative:
Österholm against the Commission of the European
                           Communities
                                                                         —     order the European Commission to pay the sum of
                                                                               EUR 235 340 together with statutory interest by way of
                          (Case T-18/02)
                                                                               compensation for the material damage caused by the
                                                                               invoicing of the school fees relating to the attendance at
                         (2002/C 109/98)                                       the European School of the applicant’s stepdaughters.
                   (Language of the case: French)
                                                                         Pleas in law and main arguments
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 February 2002 by Anita Jannice
Österholm, residing in Stockholm, represented by Juan Ramón            The contested decision suspends the applicant’s household
Iturriagagoitia, lawyer.                                                 allowance, dependent child allowance and education allow-
                                                                         ance. In support of her claim, the applicant pleads, first, an
                                                                         error of assessment of the facts and misuse of powers by the
The applicant claims that the Court should:                              Commission. In the applicant’s view, she fulfils all the con-
                                                                         ditions for entitlement to the household allowance, dependent
                                                                         child allowance and education allowance as laid down in
—     annul the decision given by the Directorate-General for            Article 67 of the Staff Regulations and Annex VII thereto, and
      Personnel and Administration of the European Com-                  has also provided the Commission with all the evidence
      mission on 13 July 2001 concerning family allowances;              necessary for the grant of those allowances.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 13 July 1995 in Joined Cases T-466/93, T-469/93, T-473/93, T-474/93 and T-477/93: Thomas O'Dwyer and Others v. Council of the European Union (Common organization of the market in milk and milk products - Milk quotas - Additional levy - Reduction of reference quantities without compensation - Claim for damages)

text:
No C 286/ 8           EN                   Official Journal of the European Communities                                  28 . 10 . 95
      Removal from the register of Case C-2 13/94 (M                         Removal from the register of Case C-93/95 (M
                          ( 95/C 286/17)                                                         ( 95/C 286/18 )
By order of 27 July 1995 the President of the Court ofJustice
of the European Communities ordered the removal from the
register of Case C-213/94 : Commission of the European                By order of 21 July 1995 the President of the Court of Justice
                                                                      of the European Communities ordered the removal from the
Communities v. Federal Republic of Germany .
                                                                      register of Case C-93/95 : Commission of the European
                                                                      Communities v. Portuguese Republic .
(') OJ No C 275 , 1 . 10 . 1993 .
                                                                      V ) OJ No C 159 , 24 . 6 . 1995 .
                                                    COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 13 July 1995                                                       of 13 July 1995
in Case T-44/93 : Monique Saby v. Commission of the                   in Joined Cases T-466/93 , T-469/93 , T-473/93 , T-474/93
                 European Communities (*)                             and T-477/93 : Thomas O'Dwyer and Others v. Council of
(Officials — Action for damages — Admissibility — Proper                                 the European Union ( ] )
conduct of the pre-litigation procedure — Duty to provide             (Common organization of the market in milk and milk
assistance — Duty to have regard for the welfare ofofficials         products — Milk quotas — Additional levy — Reduction of
  — Principle of the protection of legitimate expectations)           reference quantities without compensation — Claim for
                          ( 95/C 286/ 19 )                                                          damages)
                                                                                ( 95/C 286/20 )
               (Language of the case: French)
                                                                                (Language of the case: English)
In Case T-44/93 : Monique Saby, a former official of the
Commission of the European Communities, residing in
Brussels, represented by Mérète Turlin and Aloyse May, of             In Joined Cases T-466/93 , T-469/93 , T-473/93 , T-474/93
the Luxembourg Bar, with an address for service in                    and T-477/93 : Thomas O'Dwyer, Thomas Keane, Thomas
Luxembourg at their Chambers, 31 Grand-Rue,                           Cronin and James Reidy, residing respectively at
Luxembourg, v. Commission of the European Communities                 Drumdowney, Snowhill, Waterford, Ireland; at Corbally,
( Agent : Ana Maria Alves Vieira ) — application, first, for a        Gurtymadden, Loughrea, County Galway, Ireland; at
declaration of misconduct on the part of the Commission               Ardmore, Waterford, Ireland ; and at Carrowreagh, Cooper,
and, second, for compensation for alleged material and                Tubbercurry, County Sligo, Ireland, represented by
non-material damage — the Court of First Instance (Third              Anthony Burke, Solicitor, with an address for service in
Chamber ), composed of J. Biancarelli , President, and C. P.          Luxembourg at the Chambers of Arsène Kronshagen, 12
Briët and C. W. Bellamy, Judges; H. Jung, Registrar, has              Boulevard de la Foire, against Council of the European
given a judgment on 13 July 1995 , in which it:                       Union ( Agents : Arthur Brautigam and Michael Bishop ),
                                                                      supported by Commission of the European Communities
                                                                      ( Agents : Gerard Rozet and Christopher Docksey ) —
                                                                      application, in Cases T-466/93 , T-469/93 , T-473/93 and
1 . dismisses the application;
                                                                      T-474/93 , for reparation of the damage allegedly suffered by
                                                                      the applicants as a result of the application of Council
                                                                      Regulation ( EEC ) No 816/92 of 31 March 1992 amending
2 . orders the parties to bear their own costs.                       Regulation ( EEC ) No 804/68 on the common organization
                                                                      of the market in milk and milk products ( OJ 1992 L 86 ,
                                                                      p. 83 ) and, in Case T-477/93 , for reparation of the damage
(') OJ No C 206 , 30 . 7. 1993 .                                      allegedly suffered by the applicant as a result of the
                                                                      application of Council Regulation ( EEC ) No 748/93 of
                                                                      17 March 1993 amending Regulation ( EEC ) No 3950/92
                                                                      establishing an additional levy in the milk and milk products
                                                                      sector ( OJ 1993 L 77, p. 16 ) — the Court of First Instance
 ---pagebreak--- 28 . 10 . 95             EN                   Official Journal of the European Communities                                No C 286/9
(Third Chamber ), composed of J. Biancarelli, President,                  JUDGMENT OF THE COURT OF FIRST INSTANCE
C. P. Briet and C. W. Bellamy, Judges; H. Jung, Registrar,                                       of 13 July 1995
gave a judgment on 13 July 1995 , in which it:
                                                                            in Case T-176/94: K v. Commission of the European
                                                                                Communities ( ] )
1 . dismisses the applications;                                          (Officials — European Convention for the protection of
                                                                         human rights and fundamental freedoms — Complaint —
2 . orders the applicants to bear their own costs and those                            Right to respect for private life)
     incurred by the Council;                                                                      ( 95/C 286/22 )
3 . orders the Commission to bear its own costs.                                        (Language of the case: French)
(') OJ No C 91 , 1 . 4 . 1993 , OJ No C 124, 6 . 5 . 1993 and OJ No      In Case T-176/94 : K, an official of the Commission of the
     C 159 , 11 . 6 . 1993 .                                             European Communities, residing in Brussels, represented by
                                                                         Jean-Noel Louis, of the Brussels Bar, with an address for
                                                                         service in Luxembourg at the office of Fiduciaire Myson
                                                                         Sari, 1 Rue Glesener, v. Commission of the European
                                                                         Communities ( Agents : Ana Maria Alves Vieira and Denis
                                                                         Waelbroeck ) — application for the annulment of the
                                                                         Commission decision rejecting by implication the
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 applicant's claim for compensation and of the express
                                                                         decision rejecting his complaint and, in addition, an
                             of 13 July 1995                             application for compensation — the Court of First Instance
in Case T-545/93 : Heinz Kschwendt v. Commission of the                  (Third Chamber ), composed of J. Biancarelli, President,
                      European Communities ( ] )                         C. P. Briet and C. W. Bellamy, Judges; J. Palacio Gonzalez,
(Officials — Dependent child allowance — Education                       Registrar, has given a judgment on 13 July 1 995 , in which it
                                                                         rules :
allowance — Medical expenses — Recovery of undue
                                 payment)
                              ( 95/C 286/21 )                            1 . the application is dismissed;
                  (Language of the case: French)                         2 . the parties are ordered to bear their own costs.
In Case T-545/93 : Heinz Kschwendt, an official of the                   (') OJ No C 161 , 11 . 6 . 1994 .
Commission of the European Communities, residing in
Luxembourg, represented by Georges Vandersanden and
Laure Levi, of the Brussels Bar, with an address for service in
Luxembourg at the office of Fiduciaire Myson Sari, 1 Rue
Glesener, v. Commission of the European Communities
( Agents : Ana Maria Alves Vieira and Bertrand Wagenbaur )
— application for the annulment of the decisions of the                   JUDGMENT OF THE COURT OF FIRST INSTANCE
Commission of 3 February 1993 , 29 March 1993 and                                           of 13 September 1995
2 1 June 1993 declaring that the applicant was not entitled to
certain benefits in respect of his daughter and ordering the             in Joined Cases T-244/93 and T-486/93 : TWD
recovery of sums unduly paid — the Court of First Instance               Textilwerke Deggendorf GmbH v. Commission of the
( Third Chamber ), composed of J. Biancarelli , President, and                            European Communities ( 1 )
C. P. Briet and C. W. Bellamy, Judges; H. Jung, Registrar,               (State aid — Commission decisions suspending payment of
has given a judgment on 13 July 1995 , in which it:                      certain aids until previous unlawful aids have been
                                                                                repaid)
 1 . takes cognizance of the partial withdrawal of the claims                                      ( 95/C 286/23 )
     contained in the application, to the extent specified in
     paragraph 25 of the judgment;                                                     (Language of the case: German)
2 . dismisses the action;
                                                                         In Joined Cases T-244/93 and T-486/93 : TWD Textilwerke
                                                                         Deggendorf GmbH, established in Deggendorf ( Germany ),
3 . orders the defendant to pay all of the costs.                        represented by Walter Forstner, Lutz Radtke and
                                                                         Karl-Heinz Schupp, Rechtsanwalte, Deggendorf, assisted by
(') OJ No C 313 , 19 . 11 . 1993 .                                       Michael Schweitzer, Professor at the University of Passau,
                                                                         with an address for service in Luxembourg at the office of
                                                                         M. Stein, Bayerische Landesbank International SA, 7—9
                                                                         Boulevard Royal, supported by Federal Republic of


title: Case T-364/06: Order of the Court of First Instance of 5 November 2008 — Xinhui Alida Polythene v Council

text:
               20.12.2008

               EN

               Official Journal of the European Union

               C 327/41

         Order of the Court of First Instance of 5 November 2008 — Xinhui Alida Polythene v Council
   (Case T-364/06) (1)

   (2008/C 327/76)

      Language of the case: English

   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 20, 27.1.2007.


title: Case T-122/06: Action brought on  28 April 2006  — Helkon Media v Commission

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/20

         Action brought on 28 April 2006 — Helkon Media v Commission
   (Case T-122/06)
   (2006/C 154/49)
   Language of the case: German
   Parties

      Applicant: Helkon Media AG (Munich, Germany) (represented by: U. Karpenstein, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               order the European Commission to pay the sum of EUR 120 000 to HELKON MEDIA AG i.L;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   Helkon Media AG, in liquidation, represented by its insolvency administrator, relies on a claim for payment against the European Commission under an agreement to support a film, on the basis of an arbitration clause for the purposes of Article 238 EC, in the annex to that agreement.
   According to the applicant, the claim for payment is not extinguished by the set-off alleged by the Commission. It bases its action on the assertion that this set-off has no legal basis. The applicant further contends that a set-off after the opening of insolvency proceedings is inadmissible in German law. Finally, it submits that the recognised conditions for a set-off have not been met.


title: Reference for a preliminary ruling by the Østre Landsret by order of 12 March 1998 in the case of DAT-SCHAUB a.m.b.a. v Ministeriet for Fødevarer, Landbrug og Fiskeri (Case C-74/98)

text:
C 166/4             EN                 Official Journal of the European Communities                                     30.5.98
1. Are Articles 48, 59 and 60 of the EC Treaty to be                  employers resident in Germany which in certain cases
   interpreted as infringed by a provision of national law            results in different businesses falling within the field of
   Ð the first sentence of Paragraph 1(3) of the Arbeit-              application of the generally binding collective
   nehmerentsendegesetz (Law on the Posting of                        agreement?
   Workers) Ð which extends the application of
   provisions of collective agreements which have been
   declared generally binding concerning the collection of        4. Is Article 3(1)(b) of Directive 96/71/EC (2) of the
   contributions and the grant of benefits in connection              European Parliament and of the Council of
   with workers' holiday entitlements by joint bodies of              16 December 1996 concerning the posting of workers
   parties to collective agreements, and thus the                     in the framework of the provision of services to be
   provisions of those agreements concerning the scheme               interpreted as in any event, having regard to the
   to be complied with in that regard, to employers                   correct interpretation of Articles 48, 59 and 60 of the
   resident abroad and their workers who have been                    EC Treaty, neither requiring nor permitting the rules at
   posted to the area within which those collective                   issue in Questions 1, 2 and 3?
   agreements apply?
                                                                  (1) OJ L 307 of 13.12.1993, p. 18.
                                                                  (2) OJ L 18 of 21.1.1997, p. 1.
2. Are Articles 48, 59 and 60 of the EC Treaty to be
   interpreted as infringed by the second sentence of
   Paragraph 1(1) and the first sentence of Paragraph 1(3)
   of the Arbeitnehmerentsendegesetz which result in the
   application of provisions of collective agreements
   declared to be generally binding which:
                                                                  Reference for a preliminary ruling by the éstre Landsret
                                                                  by order of 12 March 1998 in the case of DAT-SCHAUB
   (a) provide for a length of leave which exceeds the             a.m.b.a. v Ministeriet for Fùdevarer, Landbrug og Fiskeri
       minimum length of annual leave laid down in                                        (Case C-74/98)
       Council Directive 93/104/EC of 23 November
       1993 (1) concerning certain aspects of the                                          (98/C 166/06)
       organisation of working time; and/or
                                                                  Reference has been made to the Court of Justice of the
   (b) allow employers resident in Germany to claim the           European Communities by order of 12 March 1998 from
       reimbursement of expenditure on holiday pay and            the éstre Landsret (Eastern Regional Court), which was
       holiday allowances from joint bodies of the parties        received at the Court Registry on 17 March 1998, for a
       to the collective agreements whereas, in the case of       preliminary ruling in the case of DAT-SCHAUB a.m.b.a. v
       employers resident abroad, they do not provide for         Ministeriet for Fùdevarer, Landbrug og Fiskeri (Ministry
       such a claim but instead for a direct claim by the         of Food, Agriculture and Fisheries) on the following
       posted workers against the joint bodies of the             question:
       parties to the collective agreements; and/or
                                                                  Having regard to the Cooperation Agreement between the
   (c) in connection with the social fund scheme to be            European Economic Community and the countries parties
       complied with under those collective agreements,           to the Charter of the Cooperation Council for the Arab
       impose on employers resident abroad obligations            States of the Gulf, approved by Council Directive 89/147/
       to provide information to the joint bodies of the          CEE of 20 February 1989 (1), must the term non-member
       parties to the collective agreements whereby the           country' in the second subparagraph of the Article 17(2)
       amount of information to be given exceeds the              of Regulation (CEE) No 3665/87 (2) laying down common
       amount required from employers resident in                 detailed rules for the application of the system of export
       Germany?                                                   refunds on agricultural products be construed as meaning
                                                                  that countries parties to the Charter are treated as one
                                                                  single non-member country, with the result that a product
3. Are Articles 48, 59 and 60 of the EC Treaty to be              which, after processing in the Jebel Ali Free Zone in the
   interpreted as infringed by Paragraph 1(4) of the              United Arab Emirates, is imported into and released for
   Arbeitnehmerentsendegesetz under which Ð for the               free circulation in another of the countries parties to the
   purposes of classifying businesses as covered by a             Charter is to be regarded as having been imported in the
   collective agreement which has been declared generally         unaltered state within the meaning of Article 17 of the
   binding and which, under the first sentence of                 regulation?
   Paragraph 1(3) of that Law, also applies to employers
   resident abroad and their workers who have been                (1) OJ L 54 of 25.2.1989, p. 1.
   posted to the area within which that collective                (2) OJ L 351 of 14.12.1987, p. 1.
   agreement applies Ð all workers posted to Germany,
   but only those workers, are treated as a business,
   while a different definition of a business applies to


title: Case C-12/04: Reference for a preliminary ruling by the Consiglio di Stato (Sixth Chamber) by order of that Court of 11 November 2003 in the case of Ferrari Mangimi srl and Associazione nazionale produttori alimenti zootecnici ASSALZOO against Ministero per le Politiche Agricole e Forestali, Ministero della Salute, and Ministero delle Attività Produttive

text:
C 59/18                 EN                         Official Journal of the European Union                                           6.3.2004
Reference for a preliminary ruling by the Consiglio                        Reference for a preliminary ruling by the Consiglio
di Stato (Sixth Chamber) by order of that Court of                         di Stato (Sixth Chamber) by order of that Court of
11 November 2003 in the case of Spa Fratelli Martini &                     11 November 2003 in the case of Ferrari Mangimi srl and
C. Martini and Cargill srl against Ministero per le Politiche              Associazione nazionale produttori alimenti zootecnici
Agricole e Forestali, Ministero della Salute, and Ministero                ASSALZOO against Ministero per le Politiche Agricole e
                     delle Attività Produttive                             Forestali, Ministero della Salute, and Ministero delle
                                                                                Attività Produttive
                          (Case C-11/04)
                          (2004/C 59/29)                                                             (Case C-12/04)
Reference has been made to the Court of Justice of the                                               (2004/C 59/30)
European Communities by order of the Consiglio di Stato
(Sixth Chamber) (Council of State, Judicial Division, Sixth
Chamber) of 11 November 2003, received at the Court
Registry on 15 January 2004, for a preliminary ruling in the
case of Spa Fratelli Martini & C. Martini and Cargill srl against
Ministero per le Politiche Agricole e Forestali, Ministero della
Salute, and Ministero delle Attività Produttive on the following
questions:
                                                                           Reference has been made to the Court of Justice of the
1.    Must Article 152(4)(b) EC be interpreted as being the                European Communities by order of the Consiglio di Stato
      correct legal basis for the adoption of measures on                  (Sixth Chamber) (Council of State, Judicial Division, Sixth
      labelling, contained in Directive 2002/2/EC, where they              Chamber) of 11 November 2003, received at the Court
      refer to the labelling of vegetable feedingstuffs?                   Registry on 15 January 2004, for a preliminary ruling in the
                                                                           case of Ferrari Mangimi srl and Associazione nazionale
                                                                           produttori alimenti zootecnici ASSALZOO against Ministero
2.    In so far as it imposes an obligation to indicate the precise        per le Politiche Agricole e Forestali, Ministero della Salute, and
      feed materials contained in compound feedingstuffs,                  Ministero delle Attività Produttive on the following questions:
      which applies even to vegetable-based feedingstuffs, is
      Directive 2002/2/EC (1) justified on the basis of the
      precautionary principle in the absence of a risk assess-
      ment, based on scientific studies, which requires that               1.    Must Article 152(4)(b) EC be interpreted as being the
      precautionary measure on the basis of a possible corre-                    correct legal basis for the adoption of measures on
      lation between the quantity of feed materials used and                     labelling, contained in Directive 2002/2/EC (1), where
      the risk of the diseases to be prevented? And is that                      they refer to the labelling of vegetable feedingstuffs?
      directive nevertheless justified in the light of the principle
      of proportionality, in so far as the obligations on the part
      of the feedingstuffs industry to disclose information to
      the public authorities, which are required to maintain               2.    In so far as it imposes an obligation to indicate the precise
      business secrecy, and are competent to monitor health                      feed materials contained in compound feedingstuffs,
      protection, are not sufficiently directed to the attainment                which applies even to vegetable-based feedingstuffs, is
      of the public health objectives supposed to be the purpose                 Directive 2002/2/EC justified on the basis of the pre-
      of the measure, instead imposing general rules requiring                   cautionary principle in the absence of a risk assessment,
      the indication of the percentage quantities of feed                        based on scientific studies, which requires that pre-
      materials used on the labels of vegetable-based feeding-                   cautionary measure on the basis of a possible correlation
      stuffs?                                                                    between the quantity of feed materials used and the risk
                                                                                of the diseases to be prevented? And is that directive
3.    In so far as it fails to respect the principle of pro-                     nevertheless justified in the light of the principle of
      portionality, does Directive 2002/2/EC conflict with the                   proportionality, in so far as the obligations on the part of
      fundamental right of property of the citizens of the                       the feedingstuffs industry to disclose information to
      Member States?                                                             the public authorities, which are required to maintain
                                                                                business secrecy, and are competent to monitor health
                                                                                protection, are not sufficiently directed to the attainment
                                                                                of the public health objectives supposed to be the purpose
(1) OJ L 63 of 6.03.2002, p. 23.                                                 of the measure, instead imposing general rules requiring
                                                                                the indication of the percentage quantities of feed
                                                                                materials used on the labels of vegetable-based feeding-
                                                                                stuffs?
 ---pagebreak--- 6.3.2004                EN                        Official Journal of the European Union                                             C 59/19
3.    Must Directive 2002/2/EC be interpreted as meaning that                   as set out in Article 1(1) thereof, must the definition of
      its application, and therefore its effectiveness, is subject              working time set out in the directive be considered to
      to the adoption of a positive list of feed materials                      apply exclusively to the Community thresholds estab-
      containing their specific names, as set out in the tenth                  lished by the directive or must it be considered to have
      recital to the preamble and the Commission Report                         general scope, applying also to the thresholds which,
      (COM2003 178) (2) dated 24 April 2003 or must the                         while adopted under the various national legal orders
      implementation of the directive in the Member States                      with a view to transposing the directive, may in fact be
      must take place before the adoption of the positive list of               set — as they have been in France in the interest of
      feed materials laid down by the directive, with reference                 employee protection — at a level affording greater
      to a list of the feed materials contained in the compound                 protection than the thresholds established by the direc-
      feedingstuffs by the names and generic definitions of their               tive?
      commodity classes?
                                                                          2.    To what extent could a strictly proportional system of
4.    Is Directive 2002/2/EC to be regarded as unlawful on                      equivalence, which involves calculating the total number
      the grounds of infringement of the principle of equal                     of hours in attendance before applying a weighting
      treatment and non-discrimination to the detriment of                      mechanism to them which reflects even the very least
      feedingstuff producers when compared with the pro-                        work-intensive periods during periods of inactivity, be
      ducers of foodstuffs for human consumption in so far as                   considered compatible with the objectives of the Working
      the former are subject to rules requiring indications of the              Time Directive?
      quantities of feed materials in compound feedingstuffs?
(1) OJ L 63 of 6.03.2002, p. 23.                                          (1) Council Directive 93/104/EC of 23 November 1993 concerning
(2) Not published.                                                            certain aspects of the organization of working time (OJ L 307 of
                                                                              13.12.1993, p. 18).
Reference for a preliminary ruling by the Conseil d’État
by order of that Court of 3 December 2003 in the case of
Abdelkader Dellas, Confédération générale du travail,
Fédération nationale des syndicats des services de santé                  Action brought on 20 January 2004 by the Commission
et des services sociaux CFDT and Fédération nationale de                  of the European Communities against the Federal Repub-
l’action sociale Force Ouvrière against Secrétariat général                                          lic of Germany
du gouvernement; Intervener: Union des fédérations et
syndicats nationaux d’employeurs sans but lucratif du
           secteur sanitaire, social et médico-social                                                (Case C-16/04)
                           (Case C-14/04)                                                            (2004/C 59/32)
                          (2004/C 59/31)
                                                                          An action against the Federal Republic of Germany was
                                                                          brought before the Court of Justice of the European Communi-
Reference has been made to the Court of Justice of the                    ties on 20 January 2004 by the Commission of the European
European Communities by order of the Conseil d’État (Council              Communities, represented by Denis Martin and Horstpeter
of State) of 3 December 2003, received at the Court Registry              Kreppel, acting as Agents, with an address for service in
on 15 January 2004, for a preliminary ruling in the case of               Luxembourg.
Abdelkader Dellas, Confédération générale du travail, Fédér-
ation nationale des syndicats des services de santé et des
services sociaux CFDT and Fédération nationale de l’action
sociale Force Ouvrière against Secrétariat général du gouverne-           The applicant claims that the Court should:
ment; Intervener: Union des fédérations et syndicats nationaux
d’employeurs sans but lucratif du secteur sanitaire, social et            1.    Declare that
médico-social (Union of national federations and unions of
non-profit-making employers in the health, social and medico-
social sectors) on the following questions:                                     a)    by virtue of the fact that, contrary to the require-
                                                                                ments of Community law,
1.    In the light of the purpose of the Working Time
      Directive (1), namely to lay down minimum safety and                            —     § 30(4) VBG 1/GUV.01 permits sliding doors
      health requirements for the organisation of working time,                             and revolving doors as emergency doors,


No C 108/24        EN                     Official Journal of the European Communities               5 . 4 . 97
                                                            CORRIGENDA
                                Corrigendum to communication No 97/C 74/34 of the Court of Justice
                              (Official Journal of the European Communities No C 74 of 8 March 1997)
                                                             ( 97/C 108/47 )
            Information No 97/C 74/34, in the contents and on page 17:
            for:   ' Cases C-25/97 and C-30/97',
            read:  ' Cases C-25/97 to C-30/97 '.


title: Case C-507/99: Reference for a preliminary ruling by the College van Beroep voor het Bedrĳfsleven by judgment of that court of 19 October 1999 in the case of Denkavit Nederland BV against (1) Minister van Landbouw, Natuurbeheer en Visserĳ; (2) Voedselvoorzieningsin- en verkoopbureau

text:
18.3.2000               EN                    Official Journal of the European Communities                                    C 79/13
Action brought on 22 December 1999 by the Commission                     Reference for a preliminary ruling by the College van
of the European Communities against the Portuguese                       Beroep voor het Bedrijfsleven by judgment of that court
                              Republic                                   of 19 October 1999 in the case of Denkavit Nederland BV
                                                                         against (1) Minister van Landbouw, Natuurbeheer en
                                                                           Visserij; (2) Voedselvoorzieningsin- en verkoopbureau
                         (Case C-506/99)
                                                                                (Case C-507/99)
                          (2000/C 79/23)                                                          (2000/C 79/24)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by judgment of the College van Beroep
An action against the Portuguese Republic was brought                    voor het Bedrijfsleven (Commercial Court of Appeal) of
before the Court of Justice the European Communities on                  19 October 1999, received at the Court Registry on
22 December 1999 by the Commission of the European                       23 December 1999, for a preliminary ruling in the case of
Communities, represented by António Caeiros, of its Legal               Denkavit Nederland BV against (1) Minister van Landbouw,
Service, and Manuel Desantes, national civil servant on                  Natuurbeheer en Visserij (Minister for Agriculture, Nature
secondment to the Commission’s Legal Service, acting as                  Management and Fisheries); (2) Het Voedselvoorzieningsin- en
Agents, with an address for service in Luxembourg at the office          verkoopbureau (Foodstuffs buying-in and sales agency) on the
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                   following questions:
                                                                         1. Does the fact that the calves in issue come under the
The applicant claims that the Court should:                                  common organisation of the market in beef and veal mean
                                                                             that the (alleged) power on the part of the Netherlands
                                                                             authorities to determine the point in time at which
                                                                             British calves are to be slaughtered must have a basis in
— declare that, by failing to adopt and bring into force the                 Community legislation, in the absence of which the
    laws, regulations and administrative provisions necessary                national authorities do not have any such power?
    to comply with Directive 96/9/EC of the European Parlia-
    ment and of the Council of 11 March 1996 on the legal                2. If the answer to the first question is in the affirmative:
    protection of databases (1) within the period prescribed in              does Article 8 of Directive 90/425/EEC (1) constitute an
    Article 16(1) thereof, the Portuguese Republic has failed to             adequate basis for that power?
    fulfil its obligations under the first paragraph of Article 10
    and the third paragraph of Article 249 of the EC Treaty, as          3. If the second question is answered in the negative: is there
    well as the provisions of Article 16(1) of Directive 96/9/EC;            any other basis for that power in Community law?
— declare, in the alternative, that by failing to inform the             (1) OJ 1990 L 224, p. 29.
    Commission immediately of such measures, the Portuguese
    Republic has failed to fulfil its obligations under those
    provisions;
— order the Portuguese Republic to pay the costs.
                                                                         Reference for a preliminary ruling from the Verwaltungs-
                                                                         gerichtshof by order of that court of 16 December 1999
                                                                         in the case of Palais am Stadtpark Hotelbetriebsges.m.b.H.
Pleas in law and main arguments                                          & CO KG v Finanzlandesdirektion für Wien, Niederöster-
                                                                                reich und Burgenland
                                                                                (Case C-508/99)
The pleas in law and main arguments are analogous with those
set out in Case C-495/99 (2); the period prescribed in Article 16
of Directive 96/9/EC expired on 1 January 1998.                                                   (2000/C 79/25)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Verwaltungsgericht-
(1) OJ 1996 L 77, p. 20.                                                 shof (Higher Administrative Court), Austria, of 16 December
(2) OJ C 63, 4.3.2000, p. 16.                                            1999, which was received at the Court Registry on 24 Decemb-
                                                                         er 1999, for a preliminary ruling in the case of Palais am
                                                                         Stadtpark Hotelbetriebsges.m.b.H. & CO KG v Finanzlandesdi-
                                                                         rektion für Wien, Niederösterreich und Burgenland on the
                                                                         following question: