title: Judgment of the Court of First Instance of 7 July 1999 in Case T-89/96, British Steel plc v Commission of the European Communities (ECSC - Action for annulment - Admissibility - State aid - Individual decision authorising State aid to a steel undertaking - Legal basis - Article 4(c) and Article 95, first paragraph, of the Treaty - Counterpart measures in exchange for public funding - No capacity reduction required - Principle of non-discrimination - Infringement of essential procedural requirements)

text:
C 265/8               EN                       Official Journal of the European Communities                                        18.9.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 4 March 1999                                                               of 7 July 1999
                                                                          in Case T-89/96, British Steel plc v Commission of the
in Case T-87/96: Assicurazioni Generali SpA and Unicredi-                                     European Communities (1)
  to SpA v Commission of the European Communities (1)
                                                                          (ECSC — Action for annulment — Admissibility — State
(Concentration — Regulation (EEC) No 4064/89 — Joint                      aid — Individual decision authorising State aid to a steel
venture — Classification — Whether the decision finding                   undertaking — Legal basis — Article 4(c) and Article 95,
that a joint venture forms part of wider cooperation is                   first paragraph, of the Treaty — Counterpart measures in
definitive or preliminary — Criteria for identifying a concen-            exchange for public funding — No capacity reduction
trative joint venture: functional independence and no co-                 required — Principle of non-discrimination — Infringement
ordination between the undertakings concerned — Right of                                of essential procedural requirements)
the undertakings concerned to be heard — Statement of
                             reasons)
                                                                                (1999/C 265/14)
                        (1999/C 265/13)
                                                                                (Language of the case: English)
                   (Language of the case: Italian)                        In Case T-89/96: British Steel plc, established in London,
                                                                          represented by William Sibree and Philip Raven, Solicitors,
                                                                          with an address for service in Luxembourg at the Chambers of
In Case T-87/96: Assicurazioni Generali SpA and Unicredito                Elvinger, Hoss & Prussen, 15 Côte d’Eich, supported by
SpA, whose registered offices are in Trieste and Treviso (Italy)          Hoogovens Staal BV. established at IJmuiden (Netherlands),
respectively, represented by Aurelio Pappalardo of the Trapani            represented by E.H. Pijnacker Hordijk, of the Amsterdam Bar,
Bar, and Claudio Tesauro, of the Naples Bar, with an address              with an address for service in Luxembourg at the Chambers of
for service in Luxembourg at the Chambers of Alain Lorang,                Luc Frieden, 62 Avenue Guillaume v Commission of the
51 Rue Albert 1er v Commission of the European Communities                European Communities (Agents: Nicholas Khan and Paul
(Agents: Richard Lyal and Fabiola Mascardi), supported by the             Nemitz), supported by Irish Ispat Ltd, established at Haulbow-
Italian Republic (Agents: Professor Umberto Leanza and Ivo                line, Cobh (Ireland), represented by Richard Martin, Solicitor,
M. Braguglia) — application for annulment of the Commission               and Jeremiah Healy SC and David Barniville, of the Irish Bar,
decision in case No IV/M. 711 — Generali/Unicredito of                    with an address for service in Luxembourg at the Chambers of
25 March 1996 concerning a procedure in implementation of                 Zeyen, Beghin & Feider, 56-58 Rue Charles Martel, and Ireland
Council Regulation (EEC) No 4064/89 of 21 December 1989                   (Agents: Michael A. Buckley and Alex Schuster) — Application
on the control of concentrations between undertakings (recti-             for annulment of Commission Decision 96/315/ECSC of
fied version, OJ 1990 L 257, p. 14) — the Court of First                  7 February 1996 concerning aid to be granted by Ireland to
Instance (First Chamber, Extended Composition), composed of               the steel company Irish Steel (OJ 1996 L 121, p. 16) — the
B. Vesterdorf President, C.W. Bellamy, R.M. Moura Ramos,                  Court of First Instance (Fourth Chamber, Extended Compo-
J. Pirrung and P. Mengozzi, Judges; H. Jung, Registrar, gave a            sition), composed of R.M. Moura Ramos, President and
judgment on 4 March 1999, the operative part of which is as               R. Garcı́a-Valdecasas, V. Tiili, P. Lindh and P. Mengozzi, Judges;
follows:                                                                  A. Mair, Administrator, for the Registrar, has given a judgement
                                                                          on 7 July 1999, in which it:
1. The action is dismissed.
                                                                          1. Dismisses the action.
2. The applicants are ordered to pay the costs.                           2. Orders the applicant to pay its own costs, those of the defendant
                                                                               and those of Irish Ispat Ltd, intervener.
3. The intervener shall bear its own costs.
                                                                          3. Orders Ireland and Hoogovens Staal BV, interveners, to bear
                                                                               their own costs.
(1) OJ C 354 of 23.11.1996.
                                                                          (1) OJ C 233 of 10.8.1996.


title: Case T-269/00, T-271/00, T-272/00 and T-273/00: Action brought on 17 September 2000 by Baglioni Hotels against Commission of the European Communities

text:
9.12.2000               EN                       Official Journal of the European Communities                                       C 355/29
Action brought on 16 September 2000 by Conepo Servizi                       —     annul Article 5 of that decision;
s.c.a r.l. against Commission of the European Communi-
                                 ties                                       —     in the alternative, annul Article 5 of the decision in so far
                                                                                as it refers to the tax concessions under Article 2 of the
                          (Case T-268/00)                                         Ministerial Decree of 5 August 1994 in Article 1 of the
                                                                                operative part of the decision;
                          (2000/C 355/64)                                   —     order the Commission to pay the costs.
                     (Language of the case: Italian)
                                                                            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                  The pleas in law and main arguments are similar to those put
                                                                            forward in Case T-234/00 Fondazione Opera S. Maria della
European Communities on 16 September 2000 by Conepo
Servizi s.c.a r.l., represented by Alfredo Biagini, of the Rome             Carità v Commission and in Case T-235/00 Codess Sociale
Bar, and Silvia Scarpa and Paolo Pettinelli, of the Venice Bar.             and Others v Commission (1).
The applicant claims that the Court should:                                 (1) Not yet published.
—     annul Commission Decision 2000/394/EEC;
—     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                            Action brought on 17 September 2000 by Italgas against
The pleas in law and main arguments are those relied upon in                         Commission of the European Communities
Cases T-234/00 Fondazione Opera S. Maria della Carità v
Commission and T-235/00 Codess Sociale and Others (1).                                               (Case T-270/00)
(1) Not yet published.                                                                               (2000/C 355/66)
                                                                                (Language of the case: Italian)
                                                                            An action against the Commission of the European Communi-
                                                                            ties was brought before the Court of First Instance of the
                                                                            European Communities on 17 September 2000 by Italgas,
Action brought on 17 September 2000 by Baglioni Hotels
                                                                            represented by Massimo Merola and Claudio Tesauro, of the
    against Commission of the European Communities
                                                                            Rome Bar, and Maurizio Pappalardo, of the Brussels Bar.
     (Case T-269/00, T-271/00, T-272/00 and T-273/00)
                                                                            The applicant claims that the Court should:
                          (2000/C 355/65)                                   —     annul Commission Decision 2000/394/EEC;
                                                                            —     order the Commission to pay the costs.
                     (Language of the case: Italian)
An action against the Commission of the European Communi-                   Pleas in law and main arguments
ties was brought before the Court of First Instance of the
European Communities on 17 September 2000 by Baglioni
                                                                            The pleas in law and main arguments are those relied upon in
Hotels, represented by Alessio Vianello, of the Venice Bar,
Massimo Merola, of the Rome Bar, and Maurizio Pappalardo,                   Cases T-234/00 Fondazione Opera S. Maria della Carità v
                                                                            Commission and T-235/00 Codess Sociale and Others (1).
of the Brussels Bar.
The applicant claims that the Court should:                                 (1) Not yet published.
—     annul Articles 1 and 2 of Commission Decision
      No 2000/394/EC of 25 November 1999;


title: JUDGMENT OF THE COURT of 11 November 1997 in Joined Cases C-359/95 P and C-379/95 P: Commission of the European Communities and French Republic v. Ladbroke Racing Ltd (Competition - Articles 85, 86 and 90 of the EC Treaty - Rejection of a complaint concerning the conduct of an undertaking without a prior examination of the compatibility of national legislation affecting such conduct)

text:
10. 1. 98             EN                  Official Journal of the European Communities                                     C 7/3
               JUDGMENT OF THE COURT                                                JUDGMENT OF THE COURT
                    of 11 November 1997                                                   of 11 November 1997
in Case C-349/95 (reference for a preliminary ruling from
the Hoge Raad der Nederlanden): Frits Loendersloot,                  in Joined Cases C-359/95 P and C-379/95 P: Commission
trading as F. Loendersloot Internationale Expeditie v.               of the European Communities and French Republic v.
         George Ballantine & Son Ltd and Others (1)                                      Ladbroke Racing Ltd (1)
(Article 36 of the EC Treaty Ð Trade mark rights Ð                   (Competition Ð Articles 85, 86 and 90 of the EC Treaty
                Relabelling of whisky bottles)                       Ð Rejection of a complaint concerning the conduct of
                         (98/C 7/05)                                 an undertaking without a prior examination of the
                                                                     compatibility of national legislation affecting such
                                                                                conduct)
                (Language of the case: Dutch)
                                                                                (98/C 7/06)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)
                                                                                (Language of the case: English)
In Case C-349/95: reference to the Court under Article 177
of the EC Treaty from the Hoge Raad der Nederlanden
(Supreme Court of the Netherlands) for a preliminary
ruling in the proceedings pending before that court
between Frits Loendersloot, trading as F. Loendersloot               In Joined Cases C-359/95 P and C-379/95 P: Commission
                                                                     of the European Communities (Agents: Francisco Enrique
Internationale Expeditie, and George Ballantine & Son
Ltd and Others Ð on the interpretation of Article 36 of              GonzaÂlez Díaz and Richard Lyal) and French Republic
                                                                     (Jean-FrancËois Dobelle, assisted by Catherine de Salins) Ð
the EC Treaty Ð the Court, composed of: G. C.
Rodríguez Iglesias, President, C. Gulmann (Rapporteur),              two appeals against the judgment of the Court of First
H. Ragnemalm, M. Wathelet (Presidents of Chambers),                  Instance (First Chamber, Extended Composition) of
                                                                     18 September 1995 in Case T-548/93 Ladbroke Racing v.
J. C. Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,
D. A. O. Edward, G. Hirsch, P. Jann and L. Sevón,                    Commission [1995] ECR II-2565, seeking to have that
Judges; F. G. Jacobs, Advocate-General; D. Louterman-                judgment set aside, the other party to the proceedings
                                                                     being Ladbroke Racing Ltd, a company incorporated
Hubeau, Principal Administrator, for the Registrar, has
given a judgment on 11 November 1997, in which it has                under English law, represented by Jeremy Lever QC and
                                                                     Christopher Vajda, Barrister, instructed by Stephen Kon,
ruled:
                                                                     Solicitor, with an address for service in Luxembourg at the
                                                                     Chambers of Winandy & Err, 60 Avenue Gaston Diderich
Article 36 of the EC Treaty must be interpreted as                   Ð the Court, composed of: G. C. Rodríguez Iglesias,
meaning that the owner of trade mark rights may, even if             President, C. Gulmann, H. Ragnemalm and R. Schintgen
that constitutes a barrier to intra-Community trade, rely            (Presidents of Chambers), G. F. Mancini, P. J. G. Kapteyn
on those rights to prevent a third party from removing               (Rapporteur), J. L. Murray, D. A. O. Edward, J.-P.
and then reaffixing or replacing labels bearing the mark             Puissochet, G. Hirsch and P. Jann, Judges; G. Cosmas,
which the owner has himself affixed to products he has               Advocate-General; H. von Holstein, Deputy Registrar, for
put on the Community market, unless:                                 the Registrar, has given a judgment on 11 November
                                                                     1997, in which it:
Ð it is established that the use of the trade mark rights
     by the owner to oppose the marketing of the
     relabelled products under that trade mark would
     contribute to artificial partitioning of the markets            1. sets aside the judgment of the Court of First Instance
     between Member States,                                              of 18 September 1995 in Case T-548/93 Ladbroke
                                                                         Racing v. Commission;
Ð it is shown that the relabelling cannot affect the
     original condition of the product,
                                                                     2. refers the case back to the Court of First Instance;
Ð the presentation of the relabelled product is not such
     as to be liable to damage the reputation of the trade
     mark and its owner, and
                                                                     3. reserves costs.
Ð the person who relabels the products informs the trade
     mark owner of the relabelling before the relabelled
     products are put on sale.                                       (1) OJ C 31, 3. 2. 1996.
(1) OJ C 351, 30. 12. 1995.


title: Case C-630/15 P: Appeal brought on 24 November 2015 by Novartis Europharm Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2015 in Case T-67/13: Novartis Europharm Ltd v European Commission

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/40

         Appeal brought on 24 November 2015 by Novartis Europharm Ltd against the judgment of the General Court (Second Chamber) delivered on 15 September 2015 in Case T-67/13: Novartis Europharm Ltd v European Commission
   (Case C-630/15 P)
   (2016/C 038/54)
   Language of the case: English

      Parties

      Appellant: Novartis Europharm Ltd (represented by: C. Schoonderbeek, avocate)

      Other parties to the proceedings: European Commission, Hospira UK Ltd

      Form of order sought

   The appellant claims that the Court should:

               —

               Set aside the Judgment under appeal in that, by that judgment, the General Court dismissed the action of annulment in case T-67/13,

               —

               Remit the case back to the General Court, if necessary, and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   By its application for annulment in Case T-67/13 Novartis requested the General Court to annul the Commission Implementing Decision C(2012) 8605 final of 19 November 2012 granting a marketing authorisation in accordance with Regulation (EC) No. 726/2004 (1) for the medicinal product for human use ‘Zoledronic acid Hospira — zoledronic acid’ because this decision constitutes a violation of Novartis’ data exclusivity rights for its medicinal product Aclasta pursuant to Article 13(4) of Regulation (EC) No. 2309/93 (2) read in conjunction with Article 14(11) and 89 of Regulation (EC) No. 726/2004 and Article 6(1) of Directive 2001/83/EC (3). By the judgment under appeal the application of annulment was dismissed.
   In support of this appeal, the appellant claims that the General Court made an error in law in that it incorrectly interpreted Article 6(1) of Directive 2001/83/EC, which lays down the concept of the global marketing authorisation, and because the General Court failed to provide an adequate statement of reasons in the judgment under appeal.
   In this respect the appellant claims first that the judgment under appeal is based on a misunderstanding of the wording and purpose of Article 6(1) of Directive 2001/83/EC and of the legal framework for the authorisation of new therapeutic indications and on the incorrect assumption that the appellant’s interpretation of the Article 6(1) of Directive 2001/83/EC would facilitate manipulation and circumvention of data protection and indefinite extension of data protection for reference medicinal products.
   Second, the appellant claims that the General Court’s conclusion that Article 6(1) of Directive 2001/83/EC applies to Aclasta because this medicinal product could have been authorised as variation or extension of the medicinal product Zometa runs counter to the principle of legal certainty and would take away the incentive for pharmaceutical companies to invest in research and development of new treatments and is therefore not in the interest of public health.
   It is on the basis of this incorrect interpretation of Article 6(1) of Directive 2001/83 that the General Court failed to recognize that the Commission Implementing Decision constitutes an infringement of Novartis data protection rights for Aclasta under Article 13(4) of Regulation 2309/93, read in conjunction with Article 14(11) and Article 89 of Regulation 726/2004, and that, for this reason, the Commission Implementing Decision had to be annulled.

      (1)  Regulation (EC) No 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency

      OJ L 136, p. 1

      (2)  Council Regulation (EEC) No 2309/93 of 22 July 1993 laying down Community procedures for the authorization and supervision of medicinal products for human and veterinary use and establishing a European Agency for the Evaluation of Medicinal Products

      OJ L 214, p. 1

      (3)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use

      OJ L 311, p. 67


title: Case F-64/10: Judgment of the Civil Service Tribunal (First Chamber) of 7 June 2011 — Mantzouratos v European Parliament (Staff case — Officials — Promotion — Promotion period 2009 — Decision not to promote — Admissibility of plea of illegality — Comparative examination of merits — Manifest error of assessment)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/40

         Judgment of the Civil Service Tribunal (First Chamber) of 7 June 2011 — Mantzouratos v European Parliament
   (Case F-64/10) (1)

   (Staff case - Officials - Promotion - Promotion period 2009 - Decision not to promote - Admissibility of plea of illegality - Comparative examination of merits - Manifest error of assessment)
   2011/C 232/71
   Language of the case: French

      Parties

      Applicant: Andreas Mantzouratos (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: European Parliament (represented by V. Montebello-Demongeot and K. Zejdová, Agents)

      Re:

   Application for annulment of the European Parliament’s decision not to promote the applicant to Grade AD 13 in the promotion period 2009 and also of the decisions to promote to that grade officials having fewer promotion points than the applicant.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 274, 9.10.2010, p. 33.


22 . 7 . 95                 EN                  Official Journal of the European Communities                            No C 189/19
           ( i ) infringed Articles 2 ( 9 ) and 2 ( 10 ) of Regulation     ordered the removal from the register of Case T-246/94:
                 ( EEC ) No 2423/88 ;                                      Yves Tychon v. European Parliament.
         ( ii ) infringed an essential procedural requirement in           (!) OJ No C 233 , 20 . 8 . 1994 .
                 that it failed to comply with Article 190 of the
                 Treaty or; at least,
       ( iii ) committed a manifest error of appraisal .
                                                                                Removal from the register of Case T-3 79/94 H
(c ) With regard to the determination of injury: in making                                           ( 95/C 189/40 )
       adjustments to the cif price of Russian-produced
       urea to compensate alleged quality differences, the                              (Language of the case: German)
       defendant :
                                                                           By order of 17 May 1995 the President of the Third
         (i)     committed a manifest error of appraisal; and              Chamber of the Court of First Instance of the European
                                                                           Communities ordered the removal from the register of Case
       ( ii )    infringed an essential procedural requirement.            T-379/94 : Frank Kessler v. Commission of the European
                                                                           Communities .
       Furthermore , in its determination of the profit margin
       necessary for Community producers, the defendant                    (!) OJ No C 386 , 31 . 1 . 1994 .
       infringed an essential procedural requirement.
f 1 ) OJ No L 49 , 4 . 3 . 1995 , p . 1 .
                                                                                Removal from the register of Case T- 1 2/95 ( J )
                                                                                ( 95/C 189/41 )
                                                                                (Language of the case: French)
        Removal from the register of Case T-246/94 H
                               ( 95/C 189/39 )
                                                                           By order of 30 May 1995 the President of the Third
                                                                           Chamber of the Court of First Instance of the European
                                                                           Communities ordered the removal from the register of Case
                      (Language of the case: French)                       T-12/95 : José Hodar v. Commission of the European
                                                                           Communities .
By order of 12 June 1995 the President of the First Chamber
of the Court of First Instance of the European Communities                 (!) OJ No C 74, 25 . 3 . 1995 .


title: Case C-408/99: Action brought on 25 October 1999 by the Commission of the European Communities against Ireland

text:
8.1.2000              EN                   Official Journal of the European Communities                                       C 6/17
Action brought on 19 October 1999 by the Commission                   Action brought on 25 October 1999 by the Commission
of the European Communities against the Kingdom of                            of the European Communities against Ireland
                             Belgium
                                                                                (Case C-408/99)
                        (Case C-402/99)
                                                                                (2000/C 6/32)
                         (2000/C 6/31)
An action against the Kingdom of Belgium was brought                  An action against Ireland was brought before the Court of
before the Court of Justice of the European Communities               Justice of the European Communities on 25 October 1999 by
on 19 October 1999 by the Commission of the European                  the Commission of the European Communities, represented
Communities, represented by Götz zur Hausen, Legal Adviser,           by Marie Wolfcarius, Legal Adviser, acting as Agent, with an
and Olivier Couvert-Castéra, a national civil servant seconded        address for service in Luxembourg at the office of Carlos
to its Legal Service, acting as Agents, with an address for           Gómez de la Cruz, member of the Legal Service of the
service in Luxembourg at the Chambers of Carlos Gómez de             Commission, Centre Wagner.
la Cruz, a member of its Legal Service, Wagner Centre,
Kirchberg.
                                                                      The Applicant claims that the Court should:
The applicant claims that the Court should:
                                                                      — declare that by failing to adopt the laws, regulations or
— declare that, by failing to adopt the measures necessary to             administrative provisions necessary to comply with
    implement properly and in full Article 3(2) and (4) of                Council Directive 94/55/EC (1) of 21 November 1994 on
    Council Directive 90/313/EEC of 7 June 1990 on the                    the approximation of the laws of the Member States with
    freedom of access to information on the environment (1),              regard to the transport of dangerous goods by road and
    the Kingdom of Belgium has failed to fulfil its obligations           Commission Directive 96/86/EC (2) adapting to technical
    under that directive;                                                 progress Council Directive 94/55/EC on the approximation
                                                                          of the laws of the Member States with regard to the
                                                                          transport of dangerous goods by road, or in any event by
— order the Kingdom of Belgium to pay the costs.                          failing to inform the Commission of those measures,
                                                                          Ireland has failed to fulfil its obligations under those
                                                                          Directives;
Pleas in law and main arguments
                                                                      — order Ireland to pay the costs.
— As regards transposition of Article 3(2) of Directive
    90/313/EEC, the Commission considers that the present
    position under Belgian law does not ensure that the
    competent authorities can never justify refusing access to        Pleas in law and main arguments
    environmental information on the basis of the exceptions
    in subparagraph 6 of Article 6(1) (protection of a federal
    economic or financial interest, of the currency, or of
    public funds) or subparagraph 2 of Article 6(2) (duty of          Article 249 EC (ex Article 189 of the EC Treaty), under which
    confidentiality) of the Federal Law of 11 June 1994 on            a directive shall be binding, as to the result to be achieved,
    public notices of the administrative authorities.                 upon each Member State, carries by implication an obligation
                                                                      on the Member States to observe the period for compliance
                                                                      laid down in the directive. That period expired on 1 January
— As regards transposition of Article 3(4) of Directive               1997 without Ireland having enacted the provisions necessary
    90/313/EEC, the Commission points out that the Belgian            to comply with the directives referred to in the conclusions of
    legal system does not provide a clear guarantee that              the Commission.
    any body bearing an appeal will automatically consider
    unlawful an implied refusal where reasons are not formally
    provided.
                                                                      (1) OJ L 319 of 12.12.1994, p. 7.
                                                                      (2) OJ L 335 of 24.12.1996, p. 43.
(1) OJ L 158 of 23.6.1990, p. 56.


title: Judgment of the Court 19 February 2002 in Case C-35/99 (Reference for a preliminary ruling from the Pretore di Pinerolo): Manuele Arduino (Compulsory tariff for fees of members of the Bar — Decision of the National Council of the Bar — Approval by the Minister for Justice — Articles 5 and 85 of the EC Treaty (now Articles 10 EC and 81 EC)

text:
4.5.2002                EN                      Official Journal of the European Communities                                              C 109/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       1.    Orders Nea Energeiaki Technologia EPE to pay to the
                                                                                Commission of the European Communities, first, the sum of
                                                                                GRD 9 498 551 resulting from the agreement concluded
                        (Second Chamber)                                           between Nea Energeiaki Technologia EPE and the Commission
                                                                                on 27 March 1990, namely the principal sum of
                         21 February 2002                                          GRD 9 257 051 plus GRD 241 500 in respect of bank
                                                                                interest, and, second, interest on the principal amount due,
                                                                                calculated on the basis of the European Investment Bank rate
in Case C-416/98: Commission of the European Communi-                              applicable on 15 July 1985 for the period from 27 March
          ties v Nea Energeiaki Technologia EPE (1)                                1990 to 10 December 1998 and on the basis of the statutory
                                                                                rate under Greek law for the period from 11 December 1998,
                                                                                the date of service of the application on Nea Energeiaki
(Article 181 of the EC Treaty (now Article 238 EC) —                               Technologia EPE, until total discharge by the latter of its debt;
Arbitration clause — Reimbursement of advance payments
made under a contract terminated by the Commission for                       2.    Orders Nea Energeiaki Technologia EPE to pay the costs.
                         non-performance)
                                                                             (1) OJ C 20 of 23.1.1999.
                          (2002/C 109/01)
                    (Language of the case: Greek)
                                                                                JUDGMENT OF THE COURT
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                     19 February 2002
                                                                             in Case C-35/99 (Reference for a preliminary ruling from
                                                                                the Pretore di Pinerolo): Manuele Arduino (1)
In Case C-416/98, Commission of the European Communities
(Agents: R.B. Wainwright and O. Couvert-Castéra, assisted by                 (Compulsory tariff for fees of members of the Bar —
M. Bra, avocat, and K. Kapoutzidou, dikigoros) v Nea Energeiaki              Decision of the National Council of the Bar — Approval by
Technologia EPE, established in Athens (Greece) (Agent:                      the Minister for Justice — Articles 5 and 85 of the EC Treaty
G. Papacharalampous, dikigoros): Application by the Com-                                      (now Articles 10 EC and 81 EC)
mission under Article 181 of the EC Treaty (now Article 238
EC) for repayment of an advance granted by it to the defendant                                          (2002/C 109/02)
in relation to a contract concerning the implementation, and
practical demonstration, of a pilot programme for wind-                                           (Language of the case: Italian)
generated energy entitled ‘Kea Island’, which provided for the
setting-up of a wind energy converter on a Greek island, the                 (Provisional translation; the definitive translation will be published
Court (Second Chamber), composed of: N. Colneric, President                                      in the European Court Reports)
of the Chamber, V. Skouris (Rapporteur) and J.N. Cunha
Rodrigues, Judges; P. Léger, Advocate General; L. Hewlett,
Administrator, for the Registrar, has given a judgment on                    In Case C-35/99: Reference to the Court under Article 177 of
21 February 2002, in which it:                                               the EC Treaty (now Article 234 EC) by the Pretore di Pinerolo
 ---pagebreak--- C 109/2                 EN                      Official Journal of the European Communities                                            4.5.2002
(Italy) for a preliminary ruling in the criminal proceedings               U. Leanza, assisted by F. Quadri): Application for a declaration
before that court against Manuele Arduino, third parties: Diego            that:
Dessi, Giovanni Bertolotto, and Compagnia Assicuratrice RAS
SpA, on the interpretation of Article 85 of the EC Treaty (now
Article 81 EC), the Court, composed of: G.C. Rodrı́guez
Iglesias, President, P. Jann, F. Macken, N. Colneric and S. von            —     by maintaining, contrary to Article 59 of the EC Treaty
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,                        (now, after amendment, Article 49 EC), the general
A. La Pergola, J.-P. Puissochet, M. Wathelet (Rapporteur),                       prohibition whereby lawyers established in other Member
R. Schintgen, V. Skouris and J.N. Cunha Rodrigues, Judges;                       States and practising in Italy in the exercise of their
P. Léger, Advocate General; H.A. Rühl, Principal Administrator,                  freedom to provide services cannot have in that State the
Registrar, has given a judgment on 19 February 2002, in                          infrastructure needed to provide their services,
which it has ruled:
Articles 5 and 85 of the EC Treaty (now Articles 10 EC and 81 EC)          —     by making enrolment at the Italian Bar conditional upon
do not preclude a Member State from adopting a law or regulation                 the possession of Italian nationality, the possession of
which approves, on the basis of a draft produced by a professional               qualifications acquired only in Italy and maintenance of a
body of members of the Bar, a tariff fixing minimum and maximum                  residence in an Italian judicial district, contrary to
fees for members of the profession, where that State measure forms               Article 52 of the EC Treaty (now, after amendment,
part of a procedure such as that laid down in Royal Decree-Law                   Article 43 EC),
No 1578 of 27 November 1933, as amended.
                                                                           —     by applying in a discriminatory manner against lawyers
(1) OJ C 100 of 10.4.1999.                                                       from other Member States the ‘compensatory measures’
                                                                                (aptitude test) provided for in Article 4 of Council
                                                                                Directive 89/48/EEC of 21 December 1988 on a general
                                                                                system for the recognition of higher-education diplomas
                                                                                awarded on completion of professional education and
                                                                                training of at least three years’ duration (OJ 1989 L 19,
                                                                                p. 16), and
                 JUDGMENT OF THE COURT                                     —     by incompletely transposing Directive 89/48, inasmuch
                                                                                as no rules have been laid down regulating the conduct
                                                                                of the aptitude test for lawyers from other Member States,
                          (Fifth Chamber)                                        the Italian Republic has failed to fulfil its obligations
                                                                                under Articles 52 and 59 of the Treaty and Directive
                                                                                89/48,
                           7 March 2002
in Case C-145/99: Commission of the European Communi-                      the Court (Fifth Chamber), C. Stix-Hackl, Advocate General;
                     ties v Italian Republic (1)                           L. Hewlett, Administrator, for the Registrar, has given a
                                                                           judgment on 7 March 2002, in which it:
(Failure by a Member State to fulfil its obligations —
Articles 52 and 59 of the EC Treaty (now, after amendment,
Articles 43 EC and 49 EC) — Directive 89/48/EEC —
       Access to and practice of the profession of lawyer)                 1.    Declares that:
                          (2002/C 109/03)
                                                                                —     by maintaining, contrary to Article 59 of the EC Treaty
                                                                                (now, after amendment, Article 49 EC), the general
                    (Language of the case: Italian)                                    prohibition whereby lawyers established in other Member
                                                                                States and practising in Italy in the exercise of their
                                                                                freedom to provide services cannot have in that State the
(Provisional translation; the definitive translation will be published                 infrastructure needed to provide their services,
                   in the European Court Reports)
                                                                                —     by requiring members of the Bar to reside in the judicial
                                                                                district of the court to which the Bar at which they are
In Case C-145/99, Commission of the European Communities                               enrolled is attached, contrary to Article 52 of the EC
(Agents: E. Traversa and B. Mongin) v Italian Republic (Agent:                         Treaty (now, after amendment, Article 43 EC), and


title: Reference for a preliminary ruling by the Corte Suprema di Cassazione by order of that court of 22 May 1998 in the case of Istituto Nazionale della Previdenza Sociale v. Mario Maraldi SpA (Case C-288/98)

text:
C 278/32             EN                  Official Journal of the European Communities                                      5.9.98
Reference for a preliminary ruling by the Corte Suprema             Communities, represented by Maria Patakia and Bernard
di Cassazione by order of that court of 22 May 1998 in              Mongin, both of its Legal Service, with an address for
the case of Istituto Nazionale della Previdenza Sociale v.          service in Luxembourg at the office of Carlos Gómez de la
                     Mario Maraldi SpA                              Cruz, of its Legal Service, Wagner Centre, Kirchberg.
                      (Case C-288/98)
                        (98/C 278/60)                               The Commission claims that the Court should:
Reference has been made to the Court of Justice of the              Ð declare that, by not adopting the laws, regulations and
European Communities by an order of the Corte Suprema                   administrative provisions necessary to comply with
di Cassazione (Supreme Court of Cassation) of 22 May                    Council Directive 92/51/EEC of 18 June 1992 on a
1998, which was received at the Court Registry on 27 July               second general system for the recognition of
1998, for a preliminary ruling in the case of Istituto                  professional education and training to supplement
Nazionale della Previdenza Sociale v. Mario Maraldi SpA,                Directive 89/48/EEC (1), or by not giving notice of the
on the following questions:                                             necessary      implementing    measures     within    the
                                                                        prescribed period, the Hellenic Republic has failed to
                                                                        fulfil its obligations under Article 17 of that Directive
                                                                        and the EC Treaty,
1. Does a provision of national law, which exempts
    particular categories of undertakings (which, although
    insolvent, are not being wound up and are enjoying
    favourable treatment in the form of suspension of               Ð order the Hellenic Republic to pay the costs.
    the claims against them, including those of public
    authorities, and authorisation, granted by a
    discretionary administrative measure, to continue in            Pleas in law and main arguments adduced in support:
    business) from the payment of penalties incurred
    through non-payment of social security contributions
    constitute State aid within the meaning of Article 92?
                                                                    The Member States are required by the binding character
                                                                    of the third paragraph of Article 189 and of Article 5 of
                                                                    the EC Treaty to adopt the measures needed to transpose
2. Does such a measure, considered in isolation or in               Directives into national law before the expiry of the
    conjunction with the special regime already enjoyed by          period laid down for that purpose and to communicate
    the undertaking, constitute new State aid or the                those measures immediately to the Commission. That
    alteration of existing aid which is therefore covered by        period expired on 18 June 1994 without the Hellenic
    the obligation of notification as provided for by               Republic having communicated to the Commission
    Article 93(3) of the EC Treaty?                                 provisions transposing the Directive at issue into national
                                                                    law.
3. If that is the case, what are the consequences of                (1) OJ L 209, 24.7.1992, p. 25.
    non-notification of that measure to the European
    Commission as regards the powers of the national
    court and, in particular, does the illegality of the aid
    allow the court to refuse to apply the provision in
    question?
                                                                          Removal from the register of Case C-322/97 (1)
                                                                                (98/C 278/62)
Action brought on 27 July 1998 by the Commission of the
                                                                    By order of 6 May 1998 the President of the Fifth
   European Communities against the Hellenic Republic
                                                                    Chamber of the Court of Justice of the European
                      (Case C-289/98)                               Communities has ordered the removal from the register
                                                                    of Case C-322/97: Commission of the European
                        (98/C 278/61)                               Communities v. Kingdom of Belgium.
                                                                    (1) OJ C 331, 1.11.1997.
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 27 July 1998 by the Commission of the European


title: Order of the Court (Fourth Chamber) of 8 July 1999 in Case C-199/98 P: Anthony Goldstein v Commission of the European Communities (Appeal - Manifestly inadmissible and manifestly unfounded application)

text:
4.12.1999                EN                     Official Journal of the European Communities                                      C 352/9
                      ORDER OF THE COURT                                   Court of First Instance of the European Communities (Third
                                                                           Chamber) of 16 March 1998 in Case T-235/97 Goldstein v
                           of 2 July 1999                                  Commission, not published in the European Court Reports,
                                                                           seeking to have that order set aside, the other party to
                                                                           the proceedings being the Commission of the European
in Case C-158/99 (reference for a preliminary ruling from
                                                                           Communities (Agent: Richard Lyal) — the Court (Fourth
the Tribunal Tributário de Primeira Instância de Faro):
                                                                           Chamber), composed of: P.J.G. Kapteyn, President of the
    Corticeira Amorim-Algarve Lda v Fazenda Pública (1)
                                                                           Chamber, J.L. Murray (Rapporteur) and H. Ragnemalm, Judges;
                                                                           J. Mischo, Advocate General; R. Grass, Registrar, has made an
                          (Inadmissibility)                                order on 8 July 1999, the operative part of which is as follows:
                          (1999/C 352/17)                                  1. The appeal is dismissed.
                                                                           2. Mr Goldstein is to pay the costs.
                   (Language of the case: Portuguese)
In Case C-158/99: reference to the Court under Article 234 EC              (1) OJ C 234 of 25.7.1998.
(formerly Article 177 of the EC Treaty) from the Tribunal
Tributário de Primeira Instância de Faro (Portugal) for a
preliminary ruling in the proceedings pending before that
court between Corticeira Amorim-Algarve Lda and Fazenda
Pública, intervener: Ministério Público, on the interpretation of
Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ, English Special              Appeal brought on 24 June 1999 by Limburgse Vinyl
Edition 1969 (II), p. 412), in the version thereof resulting from          Maatschappij NV against the judgment delivered on
Council Directive 85/303/EEC of 10 June 1985 (OJ 1985                      20 April 1999 by the Third Chamber, Extended Compo-
L 156, p. 23) — the Court, composed of: G.C. Rodrı́guez                    sition, of the Court of First Instance of the European
Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet, G. Hirsch           Communities in Joined Cases T-305/94, T-306/94,
and P. Jann, Presidents of Chambers, J.C. Moitinho de Almeida,             T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rap-                 T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
porteur), L. Sevón, M. Wathelet and R. Schintgen, Judges;                 between Limburgse Vinyl Maatschappij NV, Elf Atochem
G. Cosmas, Advocate General; R. Grass, Registrar, has made an              SA, BASF AG, Shell International Chemical Company Ltd,
order on 2 July 1999, the operative part of which is as follows:           DSM NV and DSM Kunststoffen BV, Wacker-Chemie
                                                                           GmbH, Hoechst AG, Société Artésienne de Vinyle, Monte-
The reference for a preliminary ruling made by the Tribunal Tributário    dison SpA, Imperial Chemical Industries plc, Hüls AG and
de Primeira Instância de Faro is inadmissible.                             Enichem SpA, and the Commission of the European
                                                                                Communities
(1) OJ C 188 of 3.7.1999.
                                                                                (Case C-238/99 P)
                                                                                (1999/C 352/19)
                                                                           An appeal against the judgment delivered on 20 April 1999
                                                                           by the Third Chamber, Extended Composition, of the Court of
                      ORDER OF THE COURT                                   First Instance of the European Communities in Joined Cases
                                                                           T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                         (Fourth Chamber)                                  T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
                                                                           T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                           of 8 July 1999                                  pij NV, Elf Atochem SA, BASF AG, Shell International
                                                                           Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
                                                                           Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
in Case C-199/98 P: Anthony Goldstein v Commission of                      Vinyle, Montedison SpA, Imperial Chemical Industries plc,
                  the European Communities (1)                             Hüls AG and Enichem SpA, and the Commission of the
                                                                           European Communities was brought before the Court of
(Appeal — Manifestly inadmissible and manifestly                           Justice of the European Communities on 24 June 1999 by
                       unfounded application)                              Limburgse Vinyl Maatschappij NV, represented by I.G.F. Cath,
                                                                           Advocaat with a right of audience before the Hoge Raad der
                          (1999/C 352/18)                                  Nederlanden, with an address for service in Luxembourg at the
                                                                           Chambers of L. Dupong, 4-6 Rue de la Boucherie.
                     (Language of the case: English)                       The appellant claims that the Court should:
In Case C-199/98 P: Anthony Goldstein, residing at Harrow                  (1) set aside, either wholly or in part, the judgment delivered
(United Kingdom), represented by Raymond St. John Murphy,                      by the Court of First Instance of the European Communities
Solicitor, of Messrs Merriman White, 3 King’s Bench Walk,                      on 20 April 1999 against which the present appeal has
Inner Temple, London — appeal against the order of the                         been brought, and terminate the proceedings;


title: Case C-15/03: Action brought on 14 January 2003 by the Commission of the European Communities against the Republic of Austria

text:
8.3.2003               EN                      Official Journal of the European Union                                            C 55/15
Action brought on 10 January 2003 by the Commission                    products for human use and their inclusion in the scope of
of the European Communities against the Grand-Duchy                    national health insurance systems, under which a decision of
                         of Luxembourg                                 the competent national authority refusing permission to
                                                                       market a medicinal product at the price proposed by the
                           (Case C-9/03)                               applicant must contain a statement of reasons ‘based on
                                                                       objective and verifiable criteria’, mean that the competent
                         (2003/C 55/25)                                authority under domestic Belgian legislation must lay down in
                                                                       advance by way of a generally applicable provision the criteria
                                                                       to be taken into consideration by the authority ruling on the
An action against the Grand-Duchy of Luxembourg was                    individual application, or is the decision-making authority
brought before the Court of Justice of the European Communi-           permitted to state in each individual decision the objective and
                                                                       verifiable criteria on which it based its refusal, in that case, to
ties on 10 January 2003 by the Commission of the European
Communities, represented by D. Martin and M. França, acting            grant the application, or is it sufficient for the authority to
                                                                       provide a formal statement of the reasons for its individual
as Agents, with an address for service in Luxembourg.
                                                                       decision by citing actual evidence from the file and for the
                                                                       courts then to review whether that evidence constitutes an
The Commission of the European Communities claims that                 objective and verifiable criterion?
the Court should:
—     Declare that, by failing to bring into force the laws,
                                                                       (1 ) OJ L 40 of 11.02.1989, p. 8.
      regulations and administrative provisions necessary to
      comply with Directive 98/27/EC of the European Parlia-
      ment and of the Council of 19 May 1998 on injunctions
      for the protection of consumers’ interests (1), the Grand-
      Duchy of Luxembourg has failed to fulfil its obligations
      under that directive;
—     Order the Grand-Duchy of Luxembourg to pay the costs.
                                                                       Action brought on 14 January 2003 by the Commission
Pleas in law and main arguments                                        of the European Communities against the Republic of
                                                                                Austria
The period for transposition laid down in Article 8 of the
directive expired on 1 January 2001.
                                                                                (Case C-15/03)
( 1) OJ 1998 L 166, p. 51.
                                                                                (2003/C 55/27)
Reference for a preliminary ruling by the Raad van                     An action against the Republic of Austria was brought
State, Afdeling Administratie by order of that Court of                before the Court of Justice of the European Communities
9 December 2002 in the case of NV Boss Pharma against                  on 14 January 2003 by the Commission of the European
Belgian State, represented by the Minister for Economic                Communities, represented by Dr Jürgen Grunwald, legal
                              Affairs                                  adviser of the European Commission and Minas Konstantinidis,
                                                                       of its legal service, with an address for service at the office of
                                                                       Luis Escobar Guerrero, of the Commission’s legal service,
                          (Case C-11/03)
                                                                       Wagner Centre C 254, Luxembourg-Kirchberg.
                         (2003/C 55/26)
                                                                       The applicant claims that the Court should:
Reference has been made to the Court of Justice of the
European Communities by order of the Raad van State,                   1.    Declare that the Republic of Austria has infringed its
Afdeling Administratie (Council of State, Administrative Div-                obligations under Article 3(1) of Council Directive 75/
ision) of 9 December 2002, received at the Court Registry on                 439/EEC of 16 June 1975 on the disposal of waste oils (1)
13 January 2003, for a preliminary ruling in the case of NV                  by failing to take the legal and practical measures
Boss Pharma against Belgian State, represented by the Minister               necessary to ensure that priority is given to the treatment
for Economic Affairs on the following question:                              by way of regeneration of waste oils, so long as that is
                                                                             not precluded by technical, financial and organisational
                                                                             constraints.
On a proper interpretation, does Article 2(2) of Council
Directive 89/105/EEC (1) of 21 December 1988 relating to the
transparency of measures regulating the prices of medicinal            2.    Order the Republic of Austria to pay the costs.
 ---pagebreak--- C 55/16                EN                         Official Journal of the European Union                                         8.3.2003
Pleas in law and main arguments                                                 (b) has offered them for sale in the trademark owner’s
                                                                                own shops or those of a related company within the
                                                                                common market but a sale of the goods has not
The Republic of Austria neither transposed the principle of                           taken place?
priority contained in Article 3(1) of Directive 75/439/EEC
in the version contained in Directive 87/101/EEC ( 2) not
demonstrated that such priority was precluded by technical,               2.    If goods have been put on the market under one of the
financial or organisational constraints.                                        above alternatives and exhaustion of the trademark right
                                                                                thereby occurs without there having been a sale of the
                                                                                goods, can a trademark owner interrupt exhaustion by
Priority in favour of ‘regeneration’ or (in Austrian terminology)               returning the goods to a warehouse?
‘recycling’ as opposed to ‘combustion’ or (in Austrian termin-
ology) ‘energy conversion’ cannot be inferred from the Austri-            3.    Are goods to be regarded as having been put on the
an legal provisions. Rather those provisions refer to recycling                 market by virtue of the fact that they have been sold by
and energy conversion in the same context without according                     the trademark owner to another company in the internal
priority to one of the two methods of treatment over the                        market, if, upon the sale, the trademark owner imposed a
other.                                                                          restriction on the buyer under which he was not entitled
                                                                                to resell the goods in the common market?
The arguments relied on by the Republic of Austria in order to
substantiate the existence of preclusive technical, financial and         4.    Is the answer to question 3 affected if the trademark
organisational constraints, that is to say that owing to the                    owner, upon selling the consignment to which the goods
small quantity of waste oil regeneration in Austria is unecon-                  belonged, gave the buyer permission to resell a small part
omical; that for ecological reasons no clear advantages is to be                of the goods in the common market but did not specify
gained from recycling; that there is no reprocessing plant                      the individual goods to which that permission applied?
in Austria for waste oils, are in the Commission’s view
unconvincing since they merely seek to perpetuate in Austria
the existing status quo and do not indicate that any endeavours
have been made in order to meet the directive’s requirements.
( 1) OJ 1975 L 194, p. 31.
( 2) OJ 1987 L 42, p. 43.
                                                                          Reference for a preliminary ruling by the Conseil d’État,
                                                                          section d’administration (Belgium) by judgment of that
                                                                          Court of 27 December 2002 in the case of Fabricom SA
                                                                                against l’État belge
Reference for a preliminary ruling by the Hovrätten över                                           (Case C-21/03)
Skåne och Blekinge by order of that Court of 19 December
2002 in the case of Peak Holding AB against Axolin-
Elinor AB (formerly Handelskompaniet Factory Outlet i                                              (2003/C 55/29)
                        Löddeköpinge AB)
                          (Case C-16/03)
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by judgment of the Conseil d’État,
                          (2003/C 55/28)
                                                                          section d’administration (Council of State, administrative sec-
                                                                          tion) (Belgium) of 27 December 2002, received at the Court
                                                                          Registry on 22 January 2003, for a preliminary ruling in the
Reference has been made to the Court of Justice of the                    case of Fabricom SA against l’État belge (Belgian State) on the
European Communities by order of the Hovrätten över Skåne                 following questions:
och Blekinge (Court of Appeal for Skåne and Blekinge) of
19 December 2002, received at the Court Registry on 15 Janu-              1.    Do Council Directive 93/38/EEC of 14 June 1993
ary 2003, for a preliminary ruling in the case of Peak Holding                  coordinating the procurement procedures of entities
AB against Axolin-Elinor AB (formerly Handelskompaniet                          operating in the water, energy, transport and telecom-
Factory Outlet i Löddeköpinge AB) on the following questions:                   munications sectors ( 1), and in particular Article 4(2)
                                                                                thereof, and Directive 98/4/EC ( 2) of 16 February 1998 of
1.    Are goods to be regarded as having been put on the                        the European Parliament and of the Council amending
      market by virtue of the fact that the trademark owner:                    Directive 93/38/EEC, in conjunction with the principle of
                                                                                proportionality, freedom of trade and industry and
      (a)   has imported them into the common market and                        respect for the law of property guaranteed in particular
            paid import duty on them, with the intention that                   by the protocol of 20 March 1992 to the Convention for
            they be sold there?                                                 the Protection of Human rights and Fundamental


title: Case C-115/06: Order of the President of the Court of 19 September 2006 (Reference for a preliminary ruling from the Arbeitsgericht Berlin — Germany) — Annette Radke v Achterberg Service GmbH & Co. KG

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/38

         Order of the President of the Court of 19 September 2006 (Reference for a preliminary ruling from the Arbeitsgericht Berlin — Germany) — Annette Radke v Achterberg Service GmbH & Co. KG
   (Case C-115/06) (1)

   (2006/C 294/76)

      Language of the case: German

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

      (1)  OJ C 131, 03.06.2006.


title: Case C-72/99: Reference for a preliminary ruling from the Landesvergabeamt Tirol by order of that tribunal of 17 February 1999 in the case of Ortner GmbH v Innsbrucker Kommunalbetriebe AG

text:
15.5.1999              EN                    Official Journal of the European Communities                                           C 136/9
— order the United Kingdom to pay the costs.                            Pleas in law and main arguments
Pleas in law and main arguments                                         The differences in the amounts payable by way of the passenger
                                                                        services tax and insurance tax at issue must be considered in
                                                                        the light of Community law, in particular of the provisions of
According to Article 3(1), waters affected by pollution and
                                                                        Regulation (EEC) No 2408/92 and of the principle of freedom
waters which could be affected by pollution if action pursuant
                                                                        to provide services enshrined in the Treaty and in particular in
to Article 5 of the Directive is not taken, shall be identified by
                                                                        Article 59 thereof. From the point of view of the single market,
the Member States in accordance with the criteria set out in
                                                                        that freedom under Article 59 precludes the application of any
Annexe I.
                                                                        legislation which has as its effect to make it more difficult to
                                                                        provide services between Member States than to provide
It appears that only surface waters intended for the abstraction        services exclusively within one Member State (see Case
of drinking water were identified in accordance with Article            C-288/89 Stichting Collectieve Antennevoorziening Gouda v Com-
3(1), whilst the Directive requires that surface freshwaters not        missariaat voor de Media 1991 ECR I-4007). The applicant
intended or used for the abstraction of drinking water, which           claims that it is clear, not only in terms of Regulation (EEC)
contain or could contain excessive concentrations of nitrates,          No 2408/92 but also of Article 7a of the EC Treaty and its
must be identified.                                                     express reference to Article 84, which is the legal basis for the
                                                                        Regulation, that freedom to provide air transport services
It also appears that only groundwaters’ sources were identified         within the Community is an integral part of such a single
in accordance with Article 3(1), whilst the Directive requires          market. Article 59 has primacy over the application of national
that all groundwaters which contain more than 50 mg/l                   legislation, unless the latter is justified on grounds of overriding
nitrates or could contain more than 50 mg/l nitrates if action          reasons relating to the public interest and does not go beyond
pursuant to Article 5 is not taken, must be identified.                 that which is necessary in order to achieve the objective
                                                                        pursued. In the Commission’s view, the justifications claimed
                                                                        by the Portuguese authorities for the measures under consider-
(1) OJ L 375, 31.12.1991, p. 1.                                         ation do not fulfil any of the above conditions.
                                                                        (1) OJ L 240, 24.8.1992, p. 1.
Action brought on 26 February 1999 by the Commission
of the European Communities against the Portuguese
                             Republic
                                                                        Reference for a preliminary ruling from the Landesverga-
                          (Case C-70/99)                                beamt Tirol by order of that tribunal of 17 February 1999
                                                                        in the case of Ortner GmbH v Innsbrucker Kommunal-
                         (1999/C 136/14)                                                            betriebe AG
An action against the Portuguese Republic was brought                                             (Case C-72/99)
before the Court of Justice of the European Communities on
26 February 1999 by the Commission of the European
Communities, represented by Frank Benyon, Legal Adviser,                                         (1999/C 136/15)
and Francisco de Sousa Fialho, of its Legal Service, acting as
Agents, with an address for service in Luxembourg at the office         Reference has been made to the Court of Justice of the
of Carlos Gómez de la Cruz, of its Legal Service, Wagner               European Communities by an order of the Landesvergabeamt
Centre, Kirchberg.                                                      Tirol (Procurement Office of the Land of Tyrol), Austria, of
                                                                        17 February 1999, which was received at the Court Registry
The applicant claims that the Court should:                             on 2 March 1999, for a preliminary ruling in the case of
                                                                        Ortner GmbH v Innsbrucker Kommunalbetriebe AG on the
— Declare that, by maintaining in force under Article 10 of             following questions:
     Implementing Decree No 38/91 of 29 July 1991 a system
     whereby flights from Portugal to other Member States are           A. Are the Member States, in transposing Directive
     liable to taxes in excess of those applicable to domestic              89/665/EEC (1), obliged by Article 2(6) thereof to ensure
     flights and by maintaining in force a provision by way of              that the contracting authority’s decision prior to con-
     Decree-Law No 102/91 of 8 March 1991, as implemented                   clusion of the contract as to which tenderer in an award
     by subsequent relevant Implementing Orders, that flights               procedure it will, on the basis of the results of that
     from Portugal to other Member States are liable to payment             procedure, conclude the contract with (in other words, the
     of taxes in excess of those payable in respect of certain              award decision) is, despite the possibility of restricting
     domestic flights, the Portuguese Republic has failed to fulfil         the legal effect of the review procedure following the
     its obligations under Article 3(1) of Council Regulation               conclusion of the contract to the award of damages, in all
     (EEC) No 2408/92 (1);                                                  cases amenable to proceedings whereby an applicant may
                                                                            have that decision annulled if the relevant conditions are
— Order the Portuguese Republic to pay the costs.                           met?
 ---pagebreak--- C 136/10              EN                     Official Journal of the European Communities                                       15.5.1999
B. The following further question is referred to the Court of           Reference for a preliminary ruling by the High Court of
    Justice only in case Question A is answered in the                  Justice, Queen’s Bench Division (Crown Office) (England
    affirmative:                                                        and Wales) by order of that court of 2 February 1999, in
                                                                        the case of the Queen against 1. Secretary of State for
    Is the obligation described at (A) sufficiently specific and        Health, 2. Secretary of State for Trade and Industry, 3.
    precise for individuals thereby to be given the right to a          HM Attorney General, ex parte: 1. Imperial Tobacco Ltd,
    review procedure in accordance with the requirements of             2. Gallaher Ltd, 3. Rothmans (UK) Ltd, 4. British American
    Article 1 of Directive 89/665/EEC, in which the national                               Tobacco Investments Ltd
    court must at least be able to adopt interim measures
    within the meaning of Article 2(1)(a) and (b) of Directive
    89/665/EEC and to annul the contracting authority’s                                           (Case C-74/99)
    award decision, and for individuals to be able to rely in
    proceedings on that obligation as against a Member State?
                                                                                (1999/C 136/17)
C. The following further question, finally, is referred to the
    Court of Justice only in case Question B is answered in the
    affirmative:                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the High Court of
    Is the obligation described at (A) itself sufficiently specific     Justice, Queen’s Bench Division (Crown Office) (England and
    and precise that the national court must in such proceed-           Wales) of 2 February 1999, which has received at the Court
    ings disregard contrary provisions of national law, observ-         Registry on 2 March 1999, for a preliminary ruling in the case
    ance of which would prevent the court from fulfilling that          of The Queen against 1. Secretary of State for Health, 2.
    obligation, and must fulfil that obligation directly as part        Secretary of State for Trade and Industry, 3. HM Attorney
    of the Community legal order even if national law lacks             General, ex parte: 1. Imperial Tobacco Ltd, 2. Gallaher Ltd, 3.
    any basis on which to act?                                          Rothmans (UK) Ltd, 4. British American Tobacco Investments
                                                                        Ltd, on the following question:
(1) OJ L 395, 30.12.1989, p. 33.
                                                                        Is Council Directive 98/43 (1) invalid, in whole or in part, by
                                                                        reason of:
                                                                        (a) the inadequacy of Articles 57(2), 66 and 100A as a legal
                                                                             basis;
                                                                        (b) infringement of the fundamental right to freedom of
                                                                             expression;
Reference for a preliminary ruling from the Sozialgericht
Münster, by order of that court of 26 January 1999, in
the case of Viktor Movrin v Landesversicherungsanstalt                  (c) infringement of the principle of proportionality;
                           Westfalen
                                                                        (d) infringement of the principle of subsidiarity;
                        (Case C-73/99)
                       (1999/C 136/16)                                  (e) infringement of the duty to give reasons;
Reference has been made to the Court of Justice of the                  (f) infringement of Article 222 EC and/or the fundamental
European Communities by order of the Sozialgericht Münster                   right to property?
(Social Court, Münster) of 26 January 1999, which was
received at the Court Registry on 2 March 1999, for a
preliminary ruling in the case of Viktor Movrin v Landesver-
sicherungsanstalt Westfalen on the following question:
                                                                        (1) Directive 98/43/EC of the European Parliament and of the Council
                                                                            of 6 July 1998 on the approximation of the laws, regulations and
Is European Community law infringed where the defendant                     administrative provisions of the Member States relating to the
refuses to grant a subsidy in respect of the cost of Netherlands            advertising and sponsorship of tobacco products (OJ L 213,
sickness insurance to the plaintiff, who receives a normal                  30.7.1998, p. 9).
old-age pension from the defendant?


title: Order of the Court (Fifth Chamber) of 11 July 2002 in Case C-464/00 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat des Landes Oberösterreich): Primetzhofer Stahl -und Fahrzeugbau GmbH v Oberösterreichischer Landesregierung (Preliminary ruling — Lack of relationship with the subject-matter of the dispute — Inadmissible)

text:
23.11.2002              EN                       Official Journal of the European Communities                                            C 289/5
                    ORDER OF THE COURT                                                           ORDER OF THE COURT
                          (Fifth Chamber)                                                              (First Chamber)
                           of 11 July 2002                                                         of 12 September 2002
in Case C-464/00 (reference for a preliminary ruling                        in Case C-431/01 (reference for a preliminary ruling from
from the Unabhängiger Verwaltungssenat des Landes                           the Cour d’Appel, Mons): Philippe Mertens v Belgian
Oberösterreich): Primetzhofer Stahl -und Fahrzeugbau                                                        State (1)
     GmbH v Oberösterreichischer Landesregierung ( 1)
                                                                            (Article 104(3) of the Rules of Procedure — Freedom of
(Preliminary ruling — Lack of relationship with the subject-                movement for persons — Tax legislation — Direct taxation
             matter of the dispute — Inadmissible)                                           — Deduction of personal losses)
                          (2002/C 289/08)                                                              (2002/C 289/09)
                                                                                (Language of the case: French)
                   (Language of the case: German)
                                                                            (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   in the European Court Reports)
                                                                            In Case C-431/01: reference to the Court under Article 234
In Case C-464/00: reference to the Court under Article 234                  EC from the Cour d’Appel (Court of Appeal), Mons (Belgium),
EC from the Unabhängiger Verwaltungssenat des Landes                        for a preliminary ruling in the proceedings pending before that
Oberösterreich (Austria) for a preliminary ruling in the pro-               court between Philippe Mertens and État Belge — on the
ceedings pending before that court between Primetzhofer                     interpretation of Articles 48 and 52 of the EC Treaty (now,
Stahl -und Fahrzeugbau GmbH and Oberösterreichischer Lan-                   after amendment, Articles 39 EC and 43 EC) — the Court
desregierung, intervener: Landes Oberösterreich — on the                    (First Chamber), composed of: P. Jann, President of the
interpretation of the third sentence of the second subparagraph             Chamber, M. Wathelet and A. Rosas (Rapporteur), Judges;
of Article 2(8) of Council Directive 89/665/EEC of 21 Decem-                S. Alber, Advocate General; R. Grass, Registrar, has made an
ber 1989 on the coordination of the laws, regulations and                   order on 12 September 2002 in which it has ruled:
administrative provisions relating to the application of review
procedures to the award of public supply and public works
contracts (OJ 1989 L 395, p. 33), as amended by Council
                                                                            Article 48 of the EC Treaty (now, after amendment, Article 39 EC)
Directive 92/50/EEC of 18 June 1992 relating to the coordi-                 precludes legislation by a Member State under which a natural person
nation of procedures for the award of public service contracts
                                                                            who resides in that Member State and pursues there a professional
(OJ 1992 L 209, p. 1) — the Court (Fifth Chamber), composed
                                                                            activity as a self-employed person cannot deduct from the taxable
of: P. Jann, President of the Chamber, D.A.O. Edward,                       income in one year, as part of the system of taxes payable by natural
M. Wathelet, C.W.A. Timmermans (Rapporteur) and A. Rosas,
                                                                            persons, a loss suffered in the previous year unless it was impossible
Judges; F.G. Jacobs, Advocate General; R. Grass, Registrar, has             to set that loss against income received as an employee in another
made an order on 11 July 2002 , in which it has ruled:
                                                                            Member State during that same year inasmuch as a loss thus set
                                                                            against income cannot be deducted from taxable income in any of the
                                                                            Member States concerned, whereas it would be deductible if the
The request for a preliminary ruling made by the Unabhängiger               abovementioned natural person had pursued his activities as a self
Verwaltungssenat des Landes Oberösterreich by order of 15 December          employed person and as an employee exclusively within the Member
2000 is inadmissible.                                                       Sate in which he resides.
( 1) OJ C 79 of 10.3.2001.                                                  (1 ) OJ C 3 of 5.1.2002.


title: Judgment of the Court (First Chamber) of 20 September 2001 in Case C-370/00: Commission of the European Communities v Ireland (Failure by a Member State to fulfil its obligations — Failure to incorporate Directives 96/49/EC and 96/87/EC into national law)

text:
10.11.2001              EN                        Official Journal of the European Communities                                           C 317/7
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                                                                                (First Chamber)
                          (First Chamber)
                                                                                of 20 September 2001
                        of 4 October 2001
                                                                             in Case C-370/00: Commission of the European Communi-
                                                                                ties v Ireland (1)
in Case C-133/00 (reference for a preliminary ruling from
the Employment Appeal Tribunal, London): J. R. Bowden,                       (Failure by a Member State to fulfil its obligations — Failure
J. L. Chapman, J. J. Doyle v Tuffnells Parcels Express Ltd (1)               to incorporate Directives 96/49/EC and 96/87/EC into
                                                                                national law)
(Organisation of working time — Directive 93/104/EC —                                                (2001/C 317/12)
           Article 1(3) — Scope — Road transport)
                                                                                (Language of the case: English)
                          (2001/C 317/11)
                                                                             In Case C-370/00: Commission of the European Communities
                                                                             (Agent: M. Wolfcarius) v Ireland (Agent: D.J. O’Hagan) —
                                                                             application for a declaration that, by failing to adopt the laws,
                    (Language of the case: English)                          regulations and administrative provisions necessary to comply
                                                                             with Council Directive 96/49/EC of 23 July 1996 on the
                                                                             approximation of the laws of the Member States with regard
                                                                             to the transport of dangerous goods by rail (OJ 1996 L 235,
In Case C-133/00: reference to the Court under Article 177 of                p. 25) and Commission Directive 96/87/EC of 13 December
the EC Treaty (now Article 234 EC) from the Employment                       1996 adapting to technical progress Council Directive 96/49
Appeal Tribunal, London, (United Kingdom), for a preliminary                 (OJ 1996 L 335, p. 45), or by failing to inform the Commission
ruling in the proceedings pending before that court between                  of those measures, Ireland has failed to fulfil its obligations
J. R. Bowden, J. L. Chapman, J. J. Doyle and Tuffnells Parcels               under those Directives — the Court (First Chamber), composed
Express Ltd — on the interpretation of Article 1(3) of Council               of: M. Wathelet, President of the Chamber, P. Jann and L. Sevón
Directive 93/104/EC of 23 November 1993 concerning certain                   (Rapporteur), Judges; F.G. Jacobs, Advocate General; R. Grass,
aspects of the organisation of working time (OJ 1993 L 307,                  Registrar, has given a judgment on 20 September 2001, in
p. 18) — the Court, composed of: M. Wathelet (Rapporteur),                   which it:
President of the Chamber, P. Jann and L. Sevón, Judges;
A. Tizzano, Advocate General; L. Hewlett, Administrator, for
the Registrar, has given a judgment on 4 October 2001, in
which it has ruled:                                                          1.   Declares that, by failing to adopt the laws, regulations and
                                                                                administrative provisions necessary to comply with Council
                                                                                Directive 96/49/EC of 23 July 1996 on the approximation of
                                                                                the laws of the Member States with regard to the transport of
                                                                                dangerous goods by rail and Commission Directive 96/87/EC
On a proper construction of Article 1(3) of Council Directive
                                                                                of 13 December 1996 adapting to technical progress Council
93/104/EC of 23 November 1993 concerning certain aspects of the
                                                                                Directive 96/49/EC, Ireland has failed to fulfil its obligations
organisation of working time, all workers employed in the road
                                                                                under those Directives.
transport sector, including office staff, are excluded from the scope of
that Directive.
                                                                             2.   Orders Ireland to pay the costs.
(1) OJ C 163 of 10.6.2000.
                                                                             (1) OJ C 335 of 25.11.2000.


C 314/6               EN                   Official Journal of the European Communities                                  30.10.1999
The Commission of the European Communities claims that                       Removal from the register of Case C-259/98 (1)
the Court should:
                                                                                (1999/C 314/13)
1. declare that, by failing to adopt the laws, regulations and
    administrative measures necessary in order to comply with         By order of 29 June 1999 the President of the Court of Justice
    Council Directive 94/67/EC of 16 December 1994 on the             of the European Communities has ordered the removal from
    incineration of hazardous waste (1), or in any event to           the register of Case C-259/98: Commission of the European
    communicate the same to the Commission, the Kingdom               Communities v Federal Republic of Germany.
    of Belgium has failed to fulfil its obligations under that
    directive;
                                                                      (1) OJ C 278 of 5.9.1998.
2. order the Kingdom of Belgium to pay the costs.
Pleas in law and main arguments
Article 249 EC (formerly Article 189 of the EC Treaty),
according to which a directive is to be binding, as to the result            Removal from the register of Case C-64/99 (1)
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits                                  (1999/C 314/14)
laid down in directives for their transposition. The time-limit
in the present case expired on 31 December 1996 without the           By order of 1 July 1999 the President of the Court of Justice of
Kingdom of Belgium having brought into force the necessary            the European Communities has ordered the removal from the
provisions in order to comply with the directive referred to in       register of Case C-64/99 (reference for a preliminary ruling
the Commission’s application.                                         from the High Court of Justice (England & Wales), Queen’s
                                                                      Bench Division (Commercial Court): Pace Airline Services Ltd
(1) OJ L 365 of 31.12.1994, p. 34.                                    v Aerotrans Luftfahrtagentur GmbH.
                                                                      (1) OJ C 121 of 1.5.1999.
       Removal from the register of Case C-182/96 (1)
                        (1999/C 314/12)                                      Removal from the register of Case C-406/95 (1)
By order of 22 June 1999 the President of the Court of Justice                                (1999/C 314/15)
of the European Communities has ordered the removal from
the register of Case C-182/96: Federal Republic of Germany v          By order of 8 July 1999 the President of the Sixth Chamber of
Commission of the European Communities.                               the Court of Justice of the European Communities has ordered
                                                                      the removal from the register of Case C-406/95: Italian
(1) OJ C 210 of 20.7.1996.                                            Republic v Commission of the European Communities.
                                                                      (1) OJ C 46 of 17.2.1996.