title: Case T-673/14: Action brought on 22 September 2014  — Italy v Commission

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/52

         Action brought on 22 September 2014 — Italy v Commission
   (Case T-673/14)
   2014/C 409/73
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: A. De Stefano, avvocato dello Stato, and G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The Italian Government has brought an action before the General Court of the European Union against European Commission Decision C(2014) 4537 final of 9 July 2014, notified on 10 July 2014, concerning the establishment, by the company SEA S.p.A., of the company Airport Handling S.p.A..
   By that measure, the European Commission opened a formal investigation with regard to the Italian Republic, holding, by way of preliminary findings, that:

               —

               the establishment, by SEA S.p.A., of the company Airport Handling S.p.A. and the resulting allocation of capital amounting to EUR 25 million constitutes State aid which is incompatible with the internal market;

               —

               the company Airport Handling S.p.A. can be regarded as the successor to the company SEA Handling S.p.A., and thus continues to benefit from the aid received by that company which is the subject-matter of Decision C(2012) 9448 final of 19 December 2012, with the result that Airport Handling S.p.A. has assumed SEA Handling S.p.A.’s obligation to repay that aid.

         In support of its action, the applicant relies on seven pleas in law.

               1.

               First plea in law, alleging infringement and misapplication of the principle of sincere cooperation and of Articles 10 and 13 of Regulation (EC) No 659/1999 of 22 March 1999.

                           —

                           The contested decision was adopted without account being taken of the evidence and assessments provided by the Italian authorities during the pre-investigation stage and was adopted in breach of the principle, repeatedly confirmed by the Court of Justice, that the Commission and the Member States have a duty to cooperate sincerely in order to overcome any difficulties which may arise during the implementation of a decision concerning the recovery of State aid.

               2.

               Second plea in law, alleging infringement and misapplication of the principle of diligence and impartiality of administrative action.

                           —

                           The Commission did not examine with due diligence the information provided by the Italian authorities during the pre-investigation stage and, accordingly, based the contested decision on an incorrect representation of the facts.

               3.

               Third plea in law, alleging infringement and misapplication of the principle of prudence and proportionality of administrative action.

                           —

                           The contested decision infringed the above principles, which required the Commission to await at least the outcome at first instance of the actions brought against Decision C(2012) [9448] final of 19 December 2012, and, accordingly, interfered prematurely in a start-up company’s activity.

               4.

               Fourth plea in law, alleging infringement and misapplication of Articles 108 TFEU, 120 TFEU, 145 TFEU and 146 TFEU.

                           —

                           The contested decision, on the basis of a presumed misrepresentation of the facts, has the effect of preventing SEA S.p.A. from operating on the Milan airports handling market and from guaranteeing continuity of service in its capacity as manager of those airports.

               5.

               Fifth plea in law, alleging infringement and misapplication of Article 108 TFEU, with reference to the alleged continuity between the business activities of SEA Handling and Airport Handling.

                           —

                           The contested decision errs in finding that there is continuity between SEA Handling S.p.A. and Airport Handling S.p.A.

               6.

               Sixth plea in law, alleging infringement and misapplication of Article 108 TFEU, with reference to the alleged imputability to the State of the supposed aid.

                           —

                           The contested decision errs in finding that SEA S.p.A.’s decision to establish Airport Handling S.p.A. and to provide it with initial capital stock is imputable to the Italian public authorities.

               7.

               Seventh plea in law, alleging infringement and misapplication of Article 108 TFEU, with reference to the supposed lack of economic rationality.

                           —

                           The contested decision errs in finding that SEA S.p.A.’s decision to establish Airport Handling S.p.A. does not correspond to the conduct of a prudent market-economy economic operator.


title: Case C-192/09: Order of the President of the Court of 11 November 2009 — Commission of the European Communities v Kingdom of the Netherlands

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/28

         Order of the President of the Court of 11 November 2009 — Commission of the European Communities v Kingdom of the Netherlands
   (Case C-192/09) (1)

   2010/C 51/52

      Language of the case: Dutch

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

      (1)  OJ C 180, 1.8.2009.


title: Case F-45/06: Order of the Civil Service Tribunal of 16 September 2010 — Avendano and Others v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/50

         Order of the Civil Service Tribunal of 16 September 2010 — Avendano and Others v Commission
   (Case F-45/06) (1)

   ()
   2010/C 317/92
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 143, 17.6.2006, p. 39.


title: Case T-507/13: Action brought on 23 September 2013 — SolarWorld e.a. v Commission

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/50

         Action brought on 23 September 2013 — SolarWorld e.a. v Commission
   (Case T-507/13)
   2013/C 325/80
   Language of the case: English

      Parties

      Applicants: SolarWorld AG (Bonn, Germany); Brandoni solare SpA (Castelfidardo, Italy); Global Sun Ltd (Sliema, Malta); Silicio Solar, SAU (Puertollano, Spain); and Solaria Energia y Medio Ambiente, SA (Madrid, Spain) (represented by: L. Ruessmann, lawyer, and J. Beck, Solicitor)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Declare the application admissible and well-founded;

               —

               Annul Commission Decision 2013/423/EU of 2 August 2013 accepting an undertaking offered in connection with the anti-dumping proceeding concerning imports of crystalline silicon photovoltaic modules and key components (i.e. cells and wafers) originating in or consigned from the People’s Republic of China; and

               —

               Order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of the action, the applicants rely on three pleas in law.

               1.

               First plea in law, alleging that the contested decision violated the applicants' right to a fair legal process and the principle of good administration, the applicants' rights of defence, and Articles 8(4) and 19(2) of the Basic Anti-dumping Regulation (1), as

                           —

                           The Commission reached an agreement with the Chinese government and the Chinese Chamber of Commerce for Machinery and Equipment, on behalf of a large group of Chinese exporting producers, without making a proper and adequate disclosure of the key terms of the undertaking under discussion.

                           —

                           The Commission failed to give interested parties an opportunity to make timely and effective comments on the undertaking arrangement accepted by the contested decision.

               2.

               Second plea in law, alleging a manifest error of assessment and violation of Articles 6(1) and 8(1) of the Basic Anti-dumping Regulation, insofar as the contested decision deviates arbitrarily from the Commission's investigation findings and sets minimum import prices at levels that are manifestly inadequate to remove the injury to EU producers.

               3.

               Third plea in law, alleging a violation of Article 101(1) TFEU insofar as the contested decision accepts and reinforces a horizontal price fixing arrangement and is therefore contrary to the TFEU requirement that competition not be distorted on the internal market.

      (1)  Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community (OJ L 343, p.51)


title: Case T-124/00: Action brought on 9 May 2000 by Federazione Associazioni Imprese Distribuzione (FAID — Federdistribuzione) and Others against Commission of the European Communities

text:
C 192/24                EN                      Official Journal of the European Communities                                         8.7.2000
Action brought on 9 May 2000 by Federazione Associa-                       — reduction of 25 % of the charges payable by all undertak-
zioni Imprese Distribuzione (FAID — Federdistribuzione)                         ings not located in the Mezzogiorno;
and Others against Commission of the European Com-
                            munities                                       — reduction of 40 % for undertakings in the commercial and
                                                                                tourist sectors which have fewer than 15 employees and
                                                                                are not located in the Mezzogiorno.
                         (Case T-124/00)
                                                                           In support of their pleas, the applicants contend:
                                                                           — That in this case no State aid is involved since the aim of
                         (2000/C 192/45)
                                                                                the assistance in question is to compensate for a pre-
                                                                                existing structural disadvantage, so as to allow all economic
                                                                                operators to enjoy the benefits of the same competitive
                                                                                situation.
                    (Language of the case: Italian)
                                                                           — Infringement of the principle audi alteram partem and of
                                                                                the rights of the defence;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance on 9 May               — Infringement of Article 87(3)(a) and (c) EC in so far as the
2000 by Federazione Associazioni Imprese Distribuzione                          contested decision describes the assistance in question as
(FAID — Federdistribuzione), SEFIM SpA, Esselunga SpA,                          aid for employment, without taking account of its positive
Supermercati Alimentari SMA Srl, Auchan Ipermercati SpA,                        effects in the areas involved.
Società Italiana Bricolage - SIB SpA, Smafin Srl, Rinascente
SpA, GS SpA and Gruppo COIN SpA, represented by Marco                      — That the contested decision is based on misapplication of
Sica, of the Milan Bar, with an address for service in Luxem-                   the Guidelines for aid to employment. (2) In any event, the
bourg at the chambers of Alain Lorang, 2 Rue des Dahlias.                       aim of creating new work posts is effectively secured.
                                                                           — Breach of the requirement of stating reasons and of the
                                                                                principle audi alteram partem.
The applicants claim that the Court of First Instance should:
                                                                           — The decision does not make it clear how the Commission
                                                                                applied the de minimis rule under which assistance of up
— Annul the contested decision wholly or in part;                               to ECU 100 000 over three years does not count as State
                                                                                aid.
— In the alternative, annul the contested decision to the
     extent to which it requires recovery of the aid already paid;         (1) OJ L 42 of 15.2.2000, p. 1.
                                                                           (2) OJ C 334 of 12.12.1995, p. 4.
— In any event, order the Commission to pay the costs.
Contentions and main arguments adduced in support
                                                                           Action brought on 10 May 2000 by Confederazione
                                                                           Generale dell’Industria Italiana (Confindustria) and Others
The present action is directed against the Commission decision                 against Commission of the European Communities
of 11 May 1999 C (1999) 1364 def ‘concerning aid granted
by Italy to promote employment’ (1) according to which                                               (Case T-126/00)
certain contributions provided for by Italian Laws Nos 863/84,
407/90, 169/91, 451/94 and 196/97, relating to the engage-                                          (2000/C 192/46)
ment of workers under training and work-experience contracts
and the conversion of such contracts into open-ended con-
tracts are to be regarded as aid incompatible with the common                                  (Language of the case: Italian)
market and are to be recovered from the recipients thereof.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance on 10 May
The legislation in question provides:                                      2000 by Confederazione Generale dell’Industria Italiana (Con-
                                                                           findustria), Confederazione Generale Italiana del Commercio,
                                                                           del Turismo, dei Servizi e delle PMI (Confcommercio), Confarti-
— for total exemption from social charges for recruitment                  gianato, Associazione Bancaria Italiana (ABI), Associazone
     under training and employment contracts for small-scale               Nazionale fra le Imprese Assicuratrici and Banco di Napoli
     craft industries, wherever located within national territory,         SpA, represented by Prof. Aurelio Pappalardo, of the Trapani
     and for undertakings located in the Mezzogiorno or other              Bar, and Massimo Merola, of the Rome Bar, with an address
     areas of Italy where unemployment exceeds the national                for service in Luxembourg at the chambers of Alain Lorang,
     average;                                                              51 Rue Albert I.


title: Case T-383/14: Action brought on 30 May 2014  — Europower v Commission

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/31

         Action brought on 30 May 2014 — Europower v Commission
   (Case T-383/14)
   2014/C 235/42
   Language of the case: Italian

      Parties

      Applicant: Europower SpA (Milan, Italy) (represented by: G. Cocco and L. Salomoni, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision rejecting, in favour of another tenderer, the tender submitted by Europower SpA in the call for tenders for the construction of a gas-turbine tri-generation power plant and the associated maintenance;

               —

               annul the decision relating to the characteristics and advantages of the selected tender;

               —

               annul the decision refusing to provide a copy of the documentation requested by the applicant by application of 7 April 2014 and make any orders which are accordingly necessary directing that the documentation be provided;

               —

               annul the additional refusal to provide access, issued following the confirmatory application;

               —

               annul every consequent, intended or related measure, including even measures as yet unknown, and, in particular, annul the tender evaluation reports, any contract entered to with the successful tenderer, the verifications as to whether the successful tenderer satisfied the requirements as declared, all unknown measures, subject to the pleas being supplemented under Article 48(2) of the Rules of Procedure of the General Court.

         In the alternative:

               —

               annul in part the call for tenders;

               —

               annul in part the administrative annex to the call for tenders;

               —

               lastly, order the Commission to pay compensation for the harm caused, to the extent determined in the course of the proceedings.

      Pleas in law and main arguments

   The present action is brought against the decision rejecting the tender submitted by the applicant in the same tendering procedure as that at issue in Case T-355/14 STC SpA v Commission.
   In support of the action, the applicant relies on five pleas in law:

               First plea: infringement of essential procedural requirements; breach of the principles of equal treatment under Article 148 of Regulation No 1268/2012 (1): infringement of Article 113 of Regulation No 966/2012 and infringement of the tendering procedure rules; together with the existence, in the present case, of a misuse of powers.

                           —

                           The applicant claims in that regard that, in order to be admitted to the tendering procedure it was necessary to satisfy the technical capacity requirements referred to in point II.2.3, which required, on pain of exclusion, the complete construction — directly by the tenderers — of at least two combined power plants with a capacity of at least 8 MW. The successful tenderer should have been excluded because it did not satisfy those minimum requirements set out in tendering procedure rules.

               Second plea: infringement of Article 149 of Regulation No 1268/2012; infringement of Article 113 of Regulation No 966/2012 (2); infringement of Directive 2004/18/EC (3) (recital 39 thereto); together with the existence, in the present case, of a misuse of powers.

                           —

                           The applicant claims in that regard that the assessment and the award of the contract are unlawful in so far as the successful tenderer was not entitled to the score awarded to it, since the evaluation of the technical offer, on the basis of the criteria laid down by the Commission, must necessarily be based on the effective output of the plant and not on a unilateral declaration made by the tenderer. Consequently, there was breach of transparency and of equal treatment with respect to the tendering procedure.

               Third plea: infringement of Article 112 of Regulation No 966/2012; breach of the principle of the secrecy of tenders, referred to in Article 111 of Regulation No 966/2012; infringement of Articles 157 and 159 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.

                           —

                           The applicant claims in that regard that the tendering procedures for award of the contract were carried out in a single sitting through the concurrent examination of administrative documents for the purpose of determining admission to the tendering procedure, technical offers and economic offers. Such a modus operandi is incompatible with the principle of the secrecy of tenders and the principle of the separation of tenders.

               Fourth plea: breach of the principles of equal treatment and transparency; infringement of Articles 15 and 298 of the Treaty; infringement of Article 102 of Regulation No 966/2012; infringement of Article 6 of Directive 2004/18/EC; together with the existence, in the present case, of a misuse of powers.

                           —

                           The applicant claims in that regard that, following the decision refusing its tender, the Commission provided only the grid of the scores awarded and then unlawfully refused access to the documentation requested, even following the confirmatory application submitted by the applicant pursuant to Article 7 et seq. of Regulation No 1049/2001 (4).

               Fifth plea: breach of the principles of equal treatment and transparency; infringement of Articles 157 and 158 of Regulation No 1268/2012; together with the existence, in the present case, of a misuse of powers.

                           —

                           The applicant claims in that regard that, in breach of Article 157 of Regulation No 1268/2012, the failure to provide a copy of the evaluation reports and of the final award decisions prevented the applicant from gaining full knowledge of the preconditions laid down in the rules referred to.

      (1)  Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1).

      (2)  Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council of 25 October 2012 on the financial rules applicable to the general budget of the Union and repealing Council Regulation (EC, Euratom) No 1605/2002 (OJ 2012 L 298, p. 1).

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

      (4)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


C 95/22               EN                     Official Journal of the European Communities                                  24.3.2001
In support of her claims, the applicant alleges absence of or           Case T-72/00, Steffen Skovmand v Commission of the Euro-
insufficient reasons given by the selection board for changing          pean Communities.
the criteria for marking the tests in question by reducing the
averages for the points to be obtained for those tests, contrary        (1) OJ C 135 of 13.5.00.
to Article 5 of Annex 3 to the Staff Regulations.
                                                                              Removal from the Register of Case T-143/00 (1)
       Removal from the Register of Case T-19/00 (1)
                                                                                (2001/C 95/45)
                         (2001/C 95/43)
                                                                                (Language of the case: French)
                  (Language of the case: French)
                                                                        By order of 14 November 2000, the President of the Fourth
By order of 20 November 2000, the President of the Third                Chamber of the Court of First Instance of the European
Chamber of the Court of First Instance of the European                  Communities has ordered the removal from the Register of
Communities has ordered the removal from the Register of                Case T-143/00, Sylvia Haupt v Commission of the European
Case T-19/00, Jean Demaeght and Others v Court of Justice of            Communities.
the European Communities.
                                                                        (1) OJ C 211 of 22.7.00.
(1) OJ C 135 of 13.5.00.
                                                                              Removal from the Register of Case T-237/00 R
       Removal from the Register of Case T-72/00 (1)
                                                                                (2001/C 95/46)
                         (2001/C 95/44)
                                                                                (Language of the case: French)
                  (Language of the case: French)
                                                                        By order of 9 October 2000, the President of the Court of First
By order of 10 November 2000, the President of the Third                Instance of the European Communities has ordered the
Chamber of the Court of First Instance of the European                  removal from the Register of Case T-237/00 R, Patrick
Communities has ordered the removal from the Register of                Reynolds v European Parliament.


title: Case C-257/08: Order of the President of the Court of 20 January 2009 — Commission of the European Communities v Italian Republic

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/28

         Order of the President of the Court of 20 January 2009 — Commission of the European Communities v Italian Republic
   (Case C-257/08) (1)

   2009/C 113/55

      Language of the case: Italian

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

      (1)  OJ C 209, 15.8.2008.


title: Case T-375/10: Judgment of the General Court of 16 September 2013 — Hansa Metallwerke and Others v Commission (Competition — Agreements, decisions and concerted parties — Bathroom fittings and fixtures markets in Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Cooperation during the administration procedure — 2002 Leniency Notice — Reduction of the fine — 2006 Guidelines on the method of setting fines — Non-retroactivity)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/25

         Judgment of the General Court of 16 September 2013 — Hansa Metallwerke and Others v Commission
   (Case T-375/10) (1)

   (Competition - Agreements, decisions and concerted parties - Bathroom fittings and fixtures markets in Belgium, Germany, France, Italy, the Netherlands and Austria - Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement - Coordination of price increases and exchange of sensitive business information - Cooperation during the administration procedure - 2002 Leniency Notice - Reduction of the fine - 2006 Guidelines on the method of setting fines - Non-retroactivity)
   2013/C 325/41
   Language of the case: German

      Parties

      Applicants: Hansa Metallwerke and Others (Stuttgart, Germany); (Hansa Nederland BV (Nijkerk, Netherlands); Hansa Italiana Srl (Castelnuovo del Garda, Italy); Hansa Belgium (Asse, Belgium); and Hansa Austria GmbH (Salzbourg, Austria) (represented by: H.-J. Hellmann and C. Mal, lawyers)

      Defendant: European Commission (represented by: A. Antoniadis and R. Sauer, Agents)

      Intervener before the Court on behalf of the defendant: Council of the European Union (represented by: M. Simm and F. Florindo Gijón, Agents)

      Re:

   Application for annulment in part of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceedings under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), and, in the alternative, for reduction of the fine imposed on the applicants in that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Hansa Metallwerke AG, Hansa Nederland BV, Hansa Italiana Srl, Hansa Belgium and Hansa Austria GmbH to bear their own costs and to pay those of the European Commission;

               3.

               Orders the Council of the European Union to bear its own costs.

      (1)  OJ C 301, 6.11.2010.


title: Case T-350/02: Action brought on 26 November 2002 by Ikegami Electronics (Europe) GmbH against the Council of the European Union

text:
25.1.2003               EN                      Official Journal of the European Communities                                      C 19/41
The applicants claim that the Court should:                                Pleas in law and main arguments
—     annul the decision of the Commission of 14 August 2002
      referring Case COMP/M.2845 - Sogecable/Canalsatélite                 Applicant for the Com-        INTER SERVICE S.r.l.
      Digital/Vía Digital to the competent authorities in the              munity trade mark:
      Kingdom of Spain pursuant to Article 9 of Council
      Regulation (EEC) No 4064/89;                                         The Community trade           SEPHORA (registration appli-
                                                                           mark concerned:               cation No 593.806 for goods in
—     order the Commission to pay the costs.                                                             Classes 9, 18 and 25
                                                                           Proprietor of the right to    The applicant
                                                                           the trade mark or sign
Pleas in law and main arguments                                            asserted by way of oppo-
                                                                           sition in the opposition
                                                                           proceedings:
The pleas in law and main arguments are essentially those
previously put forward in Case T-346/02 CABLEUROPA and                     Trade mark or sign            French word mark SEPHORA for
Others v Commission.                                                       asserted by way of oppo-      goods in Classes 35 and 42
                                                                           sition in the opposition
                                                                           proceedings:
The applicants allege, in particular, breach of the principle of
good administration, inasmuch as the Commission not only
abandoned a practice and a consolidated policy in decisions to             Decision of the Oppo-         Opposition rejected
refer cases to the market affected by the operation in question,           sition Division:
it also failed to take into account a case which is closely linked
to the concentration operation and involving the same parties.             Decision of the Board of      Appeal rejected
In any event, the Commission is better placed than the national            Appeal:
authorities to analyse the abovementioned operation for,
among other reasons, the overriding questions of Community                 Grounds of claim:             Misapplication of Article 8(4) of
interest which the later raises.                                                                         Regulation No 40/94
Action brought on 22 November 2002 by the company
Sephora against Office for Harmonization in the Internal                   Action brought on 26 November 2002 by Ikegami Elec-
          Market (trade marks and designs) (OHIM)                          tronics (Europe) GmbH against the Council of the Euro-
                                                                                pean Union
                          (Case T-349/02)
                                                                                (Case T-350/02)
                          (2003/C 19/77)
                                                                                (2003/C 19/78)
                    (Language of the case: French)
                                                                                (Language of the case: English)
An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on                 An action against the Council of the European Union was
22 November 2002 by Sephora, whose registered office is in                 brought before the Court of First Instance of the European
Levallois-Perret (France), represented by Michel-Paul Escande,             Communities on 26 November 2002 by Ikegami Electronics
lawyer.                                                                    (Europe) GmbH, Neuss, Germany, represented by Mr Laurent
                                                                           Ruessmann, lawyer with an address for service in Luxembourg.
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeal of the              The applicant claims that the Court should:
      Office for Harmonization in the Internal Market (trade
      marks and designs) of 9 September 2002 (Case R 425/                  —     annul Article 2 of Council Regulation (EC) No 1696/
      2000-2);                                                                   2002;
—     order the defendant to pay the costs.                                —     order the Council to pay the costs.
 ---pagebreak--- C 19/42               EN                     Official Journal of the European Communities                                         25.1.2003
Pleas in law and main arguments                                         The applicant finally invokes a violation of the principle
                                                                        of equal treatment. According to the applicant, an earlier
                                                                        modification of the annex was applicable irrespective of
                                                                        the date of importation without there being any objective
                                                                        differences justifying this different treatment.
The applicant is engaged in the sale and distribution of
professional camera models produced by its Japanese parent              (1 ) Council Regulation (EC) No 1696/2002 of 23 September 2002
company, Ikegami Tsushinki Co Ltd.                                           amending the Annex to Regulation (EC) No 2042/2000 imposing
                                                                             a definitive anti-dumping duty on imports of television camera
                                                                             systems originating in Japan (OJ L 259, p. 1).
                                                                        (2 ) Council Regulation (EC) No 2042/2000 of 26 September 2000
                                                                             imposing a definitive anti-dumping duty on imports of television
                                                                             camera systems originating in Japan (OJ L 244, p. 38).
The applicant seeks annulment of Article 2 of Council                   (3 ) Council Regulation (EC) No 384/96 of 22 December 1995 on
Regulation (EC) No 1696/2002 ( 1), amending the annex to                     protection against dumped imports from countries not members
Council Regulation (EC) No 2042/2000 (2) imposing a defini-                  of the European Community (OJ L 56, p. 1).
tive anti-dumping duty on imports of television camera                  (4 ) Uruguay Round of Multilateral Trade Negotiations (1986- 1994)
systems originating in Japan, to the extent that it limits the               — Annex 1 — Annex 1A — Agreement on Implementation of
application of the decision to imports of models from the date               Article VI of the General Agreement on Tariffs and Trade 1994
of receipt by the Commission of the request for exemption,                   (WTO-GATT 1994) (OJ L 336, p. 103).
namely 12 October 2001.
The applicant submits that professional camera models which
cannot be qualified as broadcast cameras were excluded from             Action brought on 25 November 2002 by Creative
the scope of the anti-dumping measures by the investigation             Technology Limited against the Office for Harmonization
which found dumping and injury to the Community Industry                                        in the Internal Market
for broadcast cameras. Regulation 1696/2002 recognizes that
the models in question, listed in the annex, cannot be qualified                                    (Case T-352/02)
as broadcast cameras. According to the applicant however, the
regulation limits the temporal application of the exclusion
from the anti-dumping measure for those models and indicates                                         (2003/C 19/79)
that anti-dumping duties are to be imposed on any imports of
those models prior to 12 October 2001. Therefore, the                                        (Language of the case: English)
applicant claims that the decision contained in article 2 of
Regulation No 1696/2002 constitutes a violation of Council
Regulation (EC) No 384/96 on protection against dumped
imports from countries not members of the European Com-                 An action against the Office for Harmonization in the Internal
munity ( 3), as amended, and the WTO anti-dumping code ( 4),            Market was brought before the Court of First Instance of the
according to which the imposition of anti-dumping duties is             European Communities on 25 November 2002 by Creative
only allowed on products included in the scope of an                    Technology Limited, Singapore, represented by Dr Michael
investigation and injury caused by those products.                      Edenborough, barrister, Mr Stephen Jones, solicitor, and Mr
                                                                        Paul Rawlinson, solicitor.
                                                                        A further party to the proceedings before the Board of Appeal
The applicant furthermore invokes the arbitrariness of the              was Mr José Vila Ortiz, Valencia, Spain. The applicant claims
contested decision and a manifest error of assessment. Accord-          that the Court should:
ing to the applicant, the contested decision presumes that
imports prior to the date of the request must have been                 —      order that the Community trade park application No 673
professional cameras which could be qualified as broadcast                     327 proceed to registration;
cameras, and therefore subject to anti-dumping duties. This
presumption is arbitrary since no basis is set forth for this           —      annul the decision of the Opposition Division No 154/
conclusion and the objective findings in Regulation 1696/                      2001;
2002 in fact support the opposite conclusion. The applicant
also indicates that there is no serious risk of circumvention of        —      annul the decision of the Fourth Board of Appeal No R
the anti-dumping duties if the decision were applicable regard-                265/2001-4;
less of the date of importation. Given that the regulation
confirms that the models are not broadcast cameras, there is            —      order that the opponent pays to the applicant the costs
no reason why the importer would declare the models as                         incurred bu the applicant in connection with this appeal
broadcast cameras which are subject to the anti-dumping                        and the appeal before the Board of Appeal and the
duties.                                                                        opposition before the Opposition Division.


title: Action brought on 15 January 1997 by the Commission of the European Communities against the Hellenic Republic (Case C-8/97)

text:
22 . 3 . 97               EN                    Official Journal of the European Communities                                  No C 94/5
Reference for a preliminary ruling by the Fourth Chamber                   in any way constitute a State aid incompatible with the
of the Commissione Tributaria Provinciale di Firenze, by                   common market, because, contrary to the Commission's
order of that court of 18 October 1996 in the case of                      assertions, the State has not made any grant of aid, either
Manifattura Italiana Nonwoven SpA v. Direzione Regiona                    directly or indirectly, which distorts or threatens to distort
            le delle Entrate (Florence Office, Tuscany)                    competition by affecting trade.
                             (Case C-4/97)
                               ( 97/C 94/09 )                              None of the arguments of the Commission, which alleges
                                                                           a use of State resources which distorts competition and
                                                                           affects trade, hits the mark; the provision adopted, as a
Reference has been made to the Court of Justice of the                     temporary measure, to buffer the increase in the price of
European Communities by an order of the Fourth                             diesel fuel in Italy, in favour both of Italian hauliers
Chamber of the Commissione Tributaria Provinciale di Fi
                                                                           carrying goods by road for hire or reward and also,
renze ( Provincial Tax Court, Florence ) of 18 October                     similarly, for non-Italian Community hauliers actually hit
1996, which was received at the Court Registry on                          by the higher tax charged on diesel fuel in Italy, is not
9 January 1997, for a preliminary ruling in the case of                    open to challenge under Articles 92 and 93 of the Treaty.
Manifattura Italiana Nonwoven SpA v. Direzione Regiona                    Consequently, the Commission's decision must be
le delle Entrate — Toscana, Sezione di Firenze (Tuscany                    annulled .
Regional Tax Directorate, Florence Office ), on the
following question:
                                                                           In the alternative, with reference to the obligation to
Is a statutory tax on the net assets of companies with                     recover sums laid down in Article 2 of the contested
share capital which has effects economically equivalent to                 decision, the Italian Government cannot but point out that
those of an indirect tax on capital contributions                          such recovery is absolutely impossible . It is impossible for
compatible with Community law and in particular with                       two sets of reasons: first of all, because asking the hauliers
Directive 69/335/EEC H ?                                                   to repay those sums would cause an uprising that would
                                                                           trigger off a social conflict from which the State could
( 1 ) Official Journal, English Special Edition 1969 (II ), p. 412.        only emerge as the loser; and second, because the
                                                                           operations which would be technically necessary to
                                                                           recover those sums would run into problems which may
                                                                           reasonably be considered insuperable, given the huge
                                                                           number of persons concerned and the division of the
                                                                           credit between different taxes and rates of taxes .
Action brought on 10 January 1997 by the Italian
Republic against the Commission of the European                            Consequently, even if the application has to be dismissed
                              Communities                                  in so far as it concerns Article 1 of the contested decision
                             ( Case C-6/97)                                relating to the compatibility of the system in question with
                                                                           Article 92 of the Treaty, the application, without prejudice
                               ( 97/C 94/10                                to the Italian Government's undertaking not to repropose
                                                                           or continue the system in dispute, should be upheld and
An action against the Commission of the European                           by annulment of the contested decision in so far as it
Communities was brought before the Court of Justice of                     orders recovery of the credit granted.
the European Communities on 10 January 1997 by the
Italian Republic, represented by Professor Umberto
Leanza, acting as Agent, assisted by Oscar Fiumara, Avvo
cato dello Stato, with an address for service in
Luxembourg at the Italian Embassy, 5 rue Marie-Adelaide .
                                                                           Action brought on 15 January 1997 by the Commission of
The applicant claims that the Court should :                                the European Communities against the Hellenic Republic
                                                                                ( Case C-8/97
— principally, annul the decision of the Commission of
      the European Communities of 22 October 1996 C(96 )                                             97/C 94/11 )
       3078 final in its entirety,
— in the alternative, annul that decision in so far as it                  An action against the Hellenic Republic was brought
       imposes the obligation to recover the aid together with             before the Court of Justice on 15 January 1997 by the
       interest,                                                           Commission of the European Communities, represented
                                                                           by Dimitrios Gouloussis, Legal Adviser to the
— in either case, order the Commission to pay the costs.                   Commission, with an address for service in Luxembourg
                                                                           at the office of Carlos Gomez de la Cruz, of the
Pleas in law and main arguments adduced in support:                        Commission's Legal Service, Wagner Centre, Kirchberg.
As regards the full compatibility with the Treaty of the                   The applicant claims that the Court should declare that,
system introduced in Italy for the years in question, the                  by failing to adopt or, in the alternative, to communicate
Italian Government claims that the system itself does not                  to the Commission, within the period prescribed, the laws,
 ---pagebreak--- No C 94/6            1 EN |                   Official Journal of the European Communities                                   22 . 3 . 97
regulations or administrative provisions necessary to                    national court must not take account of those internal
comply fully with Council Directive 90/434/EEC of 23 July                provisions, even when classifying the legal relationship on
1990 on the common system of taxation applicable to                      the basis of which a national of a Member State calls on
mergers, divisions, transfers of assets and exchanges of                 the finance administration to refund sums that were paid
shares concerning companies of different Member                          in contravention of the said Article 10 of Directive 69/
States ('), the Hellenic Republic has failed to fulfil its               335/EEC .
obligations under the EC Treaty.
                                                                         (') OJ No L 249 , 3 . 10 . 1969 , p . 25 .
Pleas in law and main arguments adduced in support:
Under Article 12 ( 1 ) of the Directive, the Member States
were to comply with the provisions of the Directive not
later than 1 January 1992 and to inform the Commission
thereof. The Greek authorities acknowledge that they have                References for a preliminary ruling by the Tribunal
not yet adopted the necessary provisions by reason of                    Superior de Justicia de Catalunya by orders of that court
internal difficulties in the Greek legal system and the                  of 3 and 9 December 1996 in the cases of ( i ) Fuerzas
failure so far to adopt, at Community level, the Tenth                   Eléctricas de Catalunya SA (Fecsa) and (ii ) Autopistas
Directive on cross-border company mergers and the                        Concesionaria Española SA against Tribunal Económico
Regulation on the statute for a European company.                        Administrativo Regional de Catalunya and Departament
                                                                             d'Economia i Finances de la Generalitat de Catalunya
The Commission observes that those reasons cannot                                       ( Cases C-31/97 and C-32/97)
exempt the Hellenic Republic from its obligation to                                                   ( 97/C 94/ 13 )
implement the Directive .
                                                                         Reference has been made to the Court of Justice of the
(') OJNoL225 , 20 . 8 . 1990 , p . 1 .
                                                                         European Communities by orders of the Tribunal Superior
                                                                         de Justicia de Catalunya ( High Court of Justice,
                                                                         Catalunya ) of 3 and 9 December 1996 , which was
                                                                         received at the Court Registry on 23 January 1997, for a
                                                                         preliminary ruling in the cases of ( i ) ( Case C-31 /97)
                                                                         Fuerzas Eléctricas de Catalunya SA ( Fecsa ) and ( ii ) ( Case
References for preliminary rulings by the Pretura di Roma                C-32/97) Autopistas Concesionaria Española SA against
by orders of that court of 17 December 1996 in the cases                 Tribunal Economico-Administrativo Regional de Catalun
of Ministero delle Finanze v. 1 . IN.CO.GE.'90 srl; 2 . Idel
                                                                         ya and Departament d'Economia i Finances de la Genera
gard srl; 3 . IRIS '90 srl; 4. Camed srl; 5 . PPA — Pomezia              litat de Catalunya on the following question:
Progetti Appalti srl; 6. Edilcam srl; 7. Impresa A. Cecchini
EC srl; 8 . EMO srl; 9. Emoda srl; 10. Sappesi srl; 11 .                 Having regard to Articles 11 ( b ) and 12 of Council
ING. Luigi Martini srl; 12 . Giacomo srl and 13 . Mafar srl              Directive 69/335/EEC ( 1 ) of 17 July 1969, is the purported
                  ( Cases C- 10/97 to C-22/97)                           levying by the Spanish Administration of the duty on
                          ( 97/C 94/12 )                                 transfers of assets and documented legal transactions on
                                                                         records of redemption ( repayment of loans ) in conformity
                                                                         with Community law, or on the contrary does it conflict
Reference has been made to the Court of Justice of the                   with Community law with the result that it must be
European Communities by orders of the Pretura di Roma                    disallowed as being incompatible therewith ?
( Magistrate's Court, Rome ) of 17 December 1996 , which
were received at the Court Registry on 16 January 1997,                  (') OJ No L 249, 3 . 10 . 1969 , p. 25 .
for preliminary rulings in the cases of Ministero delle Fi
nanze v. 1 . IN. CO . GE. ' 90 srl ; 2 . Idelgard srl ; 3 . IRIS ' 90
srl; 4 . Camed srl ; 5 . PPA — Pomezia Progetti Appalti srl;
6 . Edilcam srl ; 7. Impresa A. Cecchini EC srl; 8 . EMO srl ;
9 . Emoda srl; 10 . Sappesi srl; 11 . ING. Luigi Martini srl ;
12 . Giacomo srl and 13 . Mafar srl, on the following                    Reference for a preliminary ruling from the Rechtbank
question :                                                               van Koophandel by judgment of that court of 10 January
                                                                         1997 in the case of Colim NV against Bigg's Continent
Whether the imcompatibility with Article 10 of Council                                                  Noord NV
Directive 69/335/EEC (') of 17 July 1969 , as interpreted                                           ( Case C-33/97)
by the Court of Justice in its judgment of 20 April 1993
( in Joined Cases C-71/91 and C-178/91 Ponenti Carni and                                              ( 97/C 94/14 )
Cispadana Costruzione v. Amministrazione delle Finanze
dello Stato [ 1993 ] ECR I, p. 1915 ), of Article 3 ( XVIII )            Reference has been made to the Court of Justice of the
and (XIX ) of Decree Law No 853 of 19 December 1984,                     European Communities by a judgment of- the Rechtbank
converted into Law No 17 of 17 February 1985 , means,                    van Koophandel ( Commercial Court ) of 10 January 1997,
on the basis of the criteria for integration of national law             which was received at the Court Registry on 27 January
and Community law which that Court has laid down, that                    1997, for a preliminary ruling in the case of Colim NV
the said Article 3 ( XVIII ) and ( XIX ) must be set aside in            against Bigg's Continent Noord NV on the following
their entirety, and in particular whether it means that the              questions :


title: Order of the President of the Court of First Instance of 18 April 2000 in Cases T-83/00 R I, T-83/00 R II, T-84/00 R and T-85/00 R: Hänseler GmbH and Others v Commission of the European Communities (Proceedings for interim relief — Withdrawal of authorisation for the placing on the market of medicinal products for human use containing the substance "norpseudoephredin" — Directive 75/319/EEC — Suspension of operation of a measure pending the making of the order bringing the proceedings for interim relief to a close)

text:
7.10.2000               EN                       Official Journal of the European Communities                                         C 285/9
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                cation for annulment of the decision of the selection board in
                             INSTANCE                                       competition CdR B/01/98 refusing to admit the applicant to
                                                                            the tests in that competition — the Court of First Instance
                          of 7 April 2000                                   (First Chamber), composed of: B. Vesterdorf, President, and
                                                                            M. Vilaras and N. Forwood, Judges; H. Jung, Registrar, made
in Case T-326/99 R: Nancy Fern Olivieri v Commission of                     an order on 17 May 2000, the operative part of which is as
                   the European Communities                                 follows:
(Proceedings for interim measures — Marketing authoris-                     1.    The action is dismissed as manifestly inadmissible;
ation for a medicinal product — Admissibility — Prima
       facie case — Urgency — Balancing of interests)                       2.    The parties are to bear their own costs.
                          (2000/C 285/17)                                   (1) OJ C 122 of 29.4.2000.
                    (Language of the case: English)
In Case T-326/99 R: Nancy Fern Olivieri, resident in Toronto
(Canada), represented by P. Sands and J. Marks, Barristers, and
R. Stein, Solicitor, with an address for service in Luxembourg
at the Chambers of Nathan & Noesen, 18 Rue des Glacis, v                    ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Commission of the European Communities (Agents: R. Wain-                                                INSTANCE
wright and H. Støvlbæk), supported by Apotex Europe Ltd,
having its registered office in Leeds (United Kingdom),
represented by P. Bogaert and M. Le Berre, of the Brussels Bar,                                      of 18 April 2000
S. Fries, Rechtsanwalt, Baden Württemberg, and G. Castle,
Solicitor, with an address for service in Luxembourg at                     in Cases T-83/00 R I, T-83/00 R II, T-84/00 R and
the Chambers of A. Lutgen, 1 Rue Jean-Paul Brasseur —                       T-85/00 R: Hänseler GmbH and Others v Commission of
application for suspension of the operation of the Commission                                 the European Communities
decision of 25 August 1999 granting marketing authorisation
for the medicinal product for human use known as ‘Ferriprox’                (Proceedings for interim relief — Withdrawal of authoris-
(OJ 1999 C 270, p. 2) — the President of the Court has made                 ation for the placing on the market of medicinal products for
an order on 7 April 2000, the operative part of which is as                 human use containing the substance ‘norpseudoephredin’ —
follows:                                                                    Directive 75/319/EEC — Suspension of operation of a
                                                                            measure pending the making of the order bringing the
1.    The application for interim relief is dismissed.                                  proceedings for interim relief to a close)
2.    Costs are reserved.
                                                                                (2000/C 285/19)
                                                                                (Language of the case: German)
                                                                            In Cases T-83/00 R I, T-83/00 R II, T-84/00 R and T-85/00 R:
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                            Hänseler GmbH, established at Konstanz (Germany), applicant
                                                                            in Case T-83/00 R I, Schuck GmbH, established at Schwaig
                          of 17 May 2000                                    (Germany), applicant in Case T-83/00 R II, Laboratórios Rous-
                                                                            sel, Ltda, established at Mem Martins (Portugal), applicant in
in Case T-28/00: Luis Borrego Alias v Committee of the                      Cases T-84/00 R and T-85/00 R, Laboratoires Roussel Dia-
              Regions of the European Union (1)                             mant SARL, established at Puteaux (France), applicant in
                                                                            Case T-84/00 R, and Roussel Iberica SA, established in Barce-
(Officials — Time-limit for bringing proceedings — Mani-                    lona (Spain), applicant in Case T-85/00 R, represented by
                        fest inadmissibility)                               B. Sträter, Rechtsanwalt, Bonn, with an address for service in
                                                                            Luxembourg at the Chambers of Bonn and Schmidt, 7 Val
                          (2000/C 285/18)                                   Sainte Croix, v Commission of the European Communities
                                                                            (Agents: H. Støvlbæk and B. Wägenbaur) — application for
                                                                            suspension of operation of the Commission’s decision of
                     (Language of the case: French)                         9 March 2000 concerning the withdrawal of authorisation for
                                                                            the placing on the market of medicinal products for human
In Case T-28/00: Luis Borrego Alias, residing in Brussels,                  use containing the substances ‘Clobenzorex’, ‘Fenbutrazat’,
represented by J.-N. Louis, G.F. Parmentier and V. Peere, of the            ‘Fenproporex’, ‘Mazindol’, ‘Mefenorex’, ‘Norpseudoephredin’,
Brussels Bar, with an address for service in Luxembourg at the              ‘Phenmetrazin’ and ‘Propylhexedrin’ (C(2000) 608) — the
offices of Société de Gestion Fiduciaire, 2-4 Rue Beck, v                   President of the Court of First Instance made an order on
Committee of the Regions of the European Union — appli-                     18 April 2000, the operative part of which is as follows:
 ---pagebreak--- C 285/10                EN                     Official Journal of the European Communities                                     7.10.2000
1.    Operation of the Commission’s decision of 9 March 2000              Action brought on 28 June 2000 by Société Biret Inter-
      concerning the withdrawal of authorisation for the placing on           national against the Council of the European Union
      the market of medicinal products for human use containing
      the substances ‘Clobenzorex’, ‘Fenbutrazat’, ‘Fenproporex’,
      ‘Mazindol’, ‘Mefenorex’, ‘Norpseudoephredin’, ‘Phenmetrazin’                                 (Case T-174/00)
      and ‘Propylhexedrin’ (C(2000) 608) is suspended pending the
      making of the orders bringing the proceedings for interim relief                             (2000/C 285/21)
      to a close.
2.    The costs are reserved.
                                                                                (Language of the case: French)
                                                                          An action against the Council of the European Union was
                                                                          brought before the Court of First Instance of the European
                                                                          Communities on 28 June 2000 by Société Biret International,
                                                                          established in Paris, represented by Stéphane Rodrigues, of the
Action brought on 16 May 2000 by Robert Schochaert                        Paris Bar.
         against the Council of the European Union
                          (Case T-131/00)                                 The applicant claims that the Court should:
                          (2000/C 285/20)                                 —     establish the liability of the European Community in the
                                                                                court-supervised liquidation of the company known as
                                                                                Biret International;
                    (Language of the case: French)
                                                                          —     order the Council of the European Union to pay to Biret
An action against the Council of the European Union was                         International damages in the sum of FRF 87 006 000;
brought before the Court of First Instance of the European
Communities on 16 May 2000 by Robert Schochaert, residing
in Brussels, represented by Jean A. Martin, of the Brussels Bar.          —     order the Council of the European Union to pay all the
                                                                                costs.
The applicant claims that the Court should:
—     annul the decision of the appointing authority refusing             Pleas in law and main arguments
      to promote the applicant to grade B1, and rule that he
      should be promoted to that grade, with retroactive effect
      from the 1999 promotions procedure, within one month                The applicant, a company incorporated under French law
      from the date of the Court’s decision, failing which the            which is currently in liquidation and the object of which is
      defendant is to pay a periodic penalty of 5 000 Belgian             trade in various agricultural food products, particularly meat,
      francs per day of delay.                                            claims compensation for the damage allegedly suffered by it as
                                                                          a result of the prohibition of imports into the Community of
                                                                          beef and veal, especially of American origin. The company is
Pleas in law and main arguments                                           co-owned, as to 34 % of its capital, by Cargill USA.
The applicant maintains, first, that the refusal to include his
name on the list of officials proposed for promotion to grade             That prohibition was decided upon and implemented pursuant
B1 was based on an error of fact, namely that the position                to Council Directive 88/146/EEC of 7 March 1988 prohibiting
occupied by him since 1998 did not involve responsibilities               the use in livestock farming of certain substances having a
justifying a promotion by comparison with the other candi-                hormonal action (1) and Council Directive 72/462/EEC of
dates for promotion. He claims in that regard that the position           12 December 1972 on health and veterinary inspection prob-
which he has occupied since 1998 — and which he occupied,                 lems upon importation of bovine animals and swine and fresh
in particular, at the time of the decision refusing his promotion         meat from third countries (2). Those two directives were
— corresponds, in fact and in law, to a post involving the                replaced by Council Directive 96/22/EC of 29 April 1996
duties of a grade B1 official.                                            concerning the prohibition on the use in stockfarming of
                                                                          certain substances having a hormonal or thyrostatic action
Second, he considers that the fact that he has been refused               and of ß-agonists, and repealing Directives 81/602/EEC,
promotion to grade B1 sixteen years in succession, despite his            88/146/EEC and 88/299/EEC (3).
having been awarded either ‘particularly high’ or ‘exceptionally
high’ grades in his staff reports, can be explained only by the
existence of some deep-rooted ill-feeling towards him at a                The applicant states in that regard that, since neither the
certain level in the hierarchy above him.                                 Community legislation nor the national legislation has progres-
                                                                          sed towards a lifting of the prohibitions or the introduction of
                                                                          a more flexible system, it has not been possible for the flow of
                                                                          business which it had envisaged to materialise.


title: Case C-429/08: Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 29 September 2008 — Karen Murphy v Media Protection Services Limited

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/26

         Reference for a preliminary ruling from High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court) (United Kingdom) made on 29 September 2008 — Karen Murphy v Media Protection Services Limited
   (Case C-429/08)
   (2008/C 301/42)
   Language of the case: English
   Referring court
   High Court of Justice (England & Wales), Queen's Bench Division (Administrative Court)
   Parties to the main proceedings

      Applicant: Karen Murphy

      Defendant: Media Protection Services Limited
   Questions referred

               1.

               In what circumstances is a conditional access device an ‘illicit device’ within the meaning of Article 2(e) of Directive 98/84/EC (1)?

               2.

               In particular, is a conditional access device an ‘illicit device’ if it is acquired in circumstances where:

                           (i)

                           the conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and was used to gain access to that protected service received in another Member State? and/or

                           (ii)

                           the conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or

                           (iii)

                           the conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house?

               3.

               If the answer to any part of Question 2 is ‘no’, does Article 3(2) of that Directive preclude a Member State from invoking a national law that prevents use of such conditional access devices in the circumstances set out in Question 2 above?

               4.

               If the answer to any part of Question 2 is ‘no’, is Article 3(2) of that Directive invalid:

                           (a)

                           for the reason that it is discriminatory and/or disproportionate; and/or

                           (b)

                           for the reason that it conflicts with free movement rights under the Treaty; and/or

                           (c)

                           for any other reason?

               5.

               If the answer to Question 2 is ‘yes’, are Articles 3(1) and 4 of that Directive invalid for the reason that they purport to require the Member States to impose restrictions on the importation from other Member States of and other dealings with ‘illicit devices’ in circumstances where those devices may lawfully be imported and/or used to receive cross border satellite broadcasting services by virtue of the rules on the free movement of goods under Articles 28 and 30 of the EC Treaty and/or the freedom to provide and receive services under Article 49 of the EC Treaty?

         On the interpretation of Articles 12, 28, 30 and 49 of the EC Treaty

               6.

               Do Articles 28, 30 and/or 49 EC preclude enforcement of a national law (such as section 297 of the Copyright Designs and Patents Act 1988) which makes it a criminal offence dishonestly to receive a programme included in a broadcasting service provided from a place in the United Kingdom with intent to avoid payment of any charge applicable to the reception of the programme, in any of the following circumstances:

                           (i)

                           where the conditional access device was made by or with the consent of a service provider and originally supplied subject to limited contractual authorisation to use the device to gain access to a protected service only in a first Member State and was used to gain access to that protected service received in another Member State (in this case the UK)? and/or

                           (ii)

                           where the conditional access device was made by or with the consent of a service provider and was originally procured and/or enabled by the provision of a false name and residential address in the first Member State thereby overcoming contractual territorial restrictions imposed on the export of such devices for use outside the first Member State? and/or

                           (iii)

                           where the conditional access device was made by or with the consent of a service provider and was originally supplied subject to a contractual condition that it be used only for domestic or private use rather than commercial use (for which a higher subscription charge is payable), but was used in the United Kingdom for commercial purposes, namely showing live football broadcasts in a public house?

               7.

               Is enforcement of the national law in question in any event precluded on the ground of discrimination contrary to Article 12 EC or otherwise, because the national law applies to programmes included in a broadcasting service provided from a place in the United Kingdom but not from any other Member State?

         On the interpretation of Article 81 of the EC Treaty

               8.

               Where a programme content provider enters into a series of exclusive licences each for the territory of one or more Member States under which the broadcaster is licensed to broadcast the programme content only within that territory (including by satellite) and a contractual obligation is included in each licence requiring the broadcaster to prevent its satellite decoder cards which enable reception of the licensed programme content from being used outside the licensed territory, what legal test should the national court apply and what circumstances should it take into consideration in deciding whether the contractual restriction contravenes the prohibition imposed by Article 81(1)?
               In particular:

                           (a)

                           must Article 81(1) be interpreted as applying to that obligation by reason only of it being deemed to have the object of preventing, restricting or distorting competition?

                           (b)

                           if so, must it also be shown that the contractual obligation appreciably prevents, restricts or distorts competition in order to come within the prohibition imposed by Article 81(1)?

      (1)  Directive 98/84/EC of the European Parliament and of the Council of 20 November 1998 on the legal protection of services based on, or consisting of, conditional access (OJ L 320, p. 54).


title: JUDGMENT OF THE COURT (Fifth Chamber) of 26 October 1995 in Case C-481/93 (reference for a preliminary ruling from the Arrondissementsrechtbank Amsterdam): R. Moscato v. Bestuur van de Nieuwe Algemene Bedrijfsvereniging (Social Security - Invalidity - Legislation applicable - Type A legislation - Pre-existing state of health)

text:
No C 333/2             | EN                  Official Journal of the European Communities                                       9 . 12 , 95
D. A. O. Edward, G. Hirsch ( Presidents of Chambers ), G. F.            Article 13 ( 2 ) ( a ) and Article 39 ( 1 ) and ( 5 ) of Council
Mancini, F. A. Schockweiler ( Rapporteur ), J. C. Moitinho              Regulation ( EEC ) No 1408/71 of 14 June 1971 on the
de Almeida, P. J. G. Kapteyn, P. Jann, H. Ragnemalm and                 application of social security schemes to employed persons,
L. Sevon, Judges ; G. Tesauro, Advocate-General; H. A.                  to self-employed persons and to members of their families
Riihl, Principal Administrator, for the Registrar, has given a          moving within the Community, as amended and updated by
judgment on 24 October 1995 , in which it rules :                       Council Regulation ( EEC ) No 2001/83 of 2 June 1983 ( OJ
                                                                         1983 L 230, p. 6 ), the Court ( Fifth Chamber ), composed of
                                                                        D. A. O. Edward ( Rapporteur ), President of the Chamber,
 1 . Article 85 (1 ) of the EEC Treaty must be interpreted as           J. C. Moitinho de Almeida, C. Gulmann, P. Jann and
      meaning that it prohibits an obligation imposed by the            L. Sevon, Judges; A. M. La Pergola, Advocate-General;
      leading manufacturer of motor vehicles in a Member                H. A. Ruhl, Principal Administrator, for the Registrar, has
      State on all its dealers established in that State to develop     given a judgment on 26 October 1995 , in which it rules
                                                                        that:
      activities as agents for leasing transactions exclusively
      for the account of its own leasing company.
                                                                        Article 38 (1 ) of Council Regulation (EEC) No 1408/71 of
2 . Commission Regulation (EEC) No 123/85 of                            14 June 1971 on the application of social security schemes
      12 December 1984 on the application of Article 85 (3)             to employed persons, to self-employed persons and to
                                                                        members oftheir families moving within the Community, as
      of the Treaty to certain categories of motor vehicle
                                                                        amended and updated by Council Regulation (EEC)
      distribution and servicing agreements must be
      interpreted as meaning that it does not exempt an
                                                                        No 2001 /83 of 2 June 1 983, is to be interpreted as meaning
                                                                        that, where the applicable legislation of a Member State
      obligation imposed by the leading motor vehicle
                                                                        makes the grant of invalidity benefits subject, inter alia, to
      manufacturer in a Member State on all its dealers
      established in that State to develop activities as agents
                                                                        the condition that at the time of his joining the scheme
                                                                        established by that legislation the worker's state of health
      for leasing transactions exclusively for the account of its
                                                                        must not have been such as to make it foreseeable that
      own leasing company.
                                                                        incapacity for work followed by invalidity would occur in
                                                                        the near future, the competent institution must also take
t 1 ) OJ No C 160, 12 . 6 . 1993 .                                      into account periods of insurance completed by that worker
                                                                        under the legislation of another Member State, as if those
                                                                       periods had been completed under the legislation which it
                                                                       administers.
                                                                        (') OJ No C 59 , 26 . 2 . 1994, p . 6 .
                JUDGMENT OF THE COURT
                          ( Fifth Chamber)
                        of 26 October 1995
in Case C-481/93 (reference for a preliminary ruling from
the Arrondissementsrechtbank Amsterdam ): R. Moscato v.                               JUDGMENT OF THE COURT
   Bestuur van de Nieuwe Algemene Bedrijfsvereniging ( j )                                       ( Fifth Chamber)
(Social Security — Invalidity — Legislation applicable —                                       of 26 October 1995
       Type A legislation — Pre-existing state of health)               in Case C-482/93 ( reference for a preliminary ruling from
                            ( 95/C 333/03 )                             the Arrondissementsrechtbank Amsterdam ): S. E. Klaus v.
                                                                          Bestuur van de Nieuwe Algemene Bedrijfsvereniging (')
                                                                        (Social security — Sickness — Pre-existing state ofhealth —
                  (Language of the case: Dutch)                                      Aggregation of insurance periods)
                                                                                ( 95/C 333/04 )
(Provisional translation; the definitive translation will be
           published in the European Court Reports)                                     (Language of the case: Dutch)
In Case C-481 /93 : reference to the Court under Article 177            (Provisional translation; the definitive translation will be
of the EEC Treaty from the Arrondissementsrechtbank                             published in the European Court Reports)
( District Court ), Amsterdam (Netherlands ), for a
preliminary ruling in the proceedings pending before that
court between R. Moscato and Bestuur van de Nieuwe                      In Case C-482/93 : reference to the Court under Article 177
Algemene Bedrijfsvereniging — on the interpretation of                  of the EEC Treaty from the Arrondissementsrechtbank


title: Case T-289/06: Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission (Public procurement — Declaration of a serious breach of contract — Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 — Action for annulment — Error of fact and law — Jurisdiction of the Court of First Instance — Legal interest in bringing proceedings — Admissibility — Misuse of powers — Manifest error of assessment — Statement of reasons — Right to a fair hearing)

text:
               6.6.2009

               EN

               Official Journal of the European Union

               C 129/13

         Judgment of the Court of First Instance of 22 April 2009 — CESD-Communautaire v Commission
   (Case T-289/06) (1)

   (Public procurement - Declaration of a serious breach of contract - Article 93(1)(f) of Regulation (EC, Euratom) No 1605/2002 - Action for annulment - Error of fact and law - Jurisdiction of the Court of First Instance - Legal interest in bringing proceedings - Admissibility - Misuse of powers - Manifest error of assessment - Statement of reasons - Right to a fair hearing)
   2009/C 129/21
   Language of the case: French

      Parties

      Applicant: Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) (Luxembourg, Luxembourg) (represented by: D. Grisay and D. Piccininno, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Wilms and J.-F. Pasquier, acting as Agents)

      Re:

   Application for annulment of the Commission’s letter of 11 August 2006 by which it informed the applicant that it had taken the decision to declare, as regards three contracts referred to in that letter, that there had been a serious breach of contract under Article 93(1)(f) of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1)

      Operative part of the judgment

   The Court:

               1.

               dismisses the action;

               2.

               orders Centre européen pour la statistique et le développement ASBL (CESD-Communautaire) to pay the costs.

      (1)  OJ C 310, 16.12.2006.