title: Case T-141/08: Action brought on 15 April 2008 — E.ON Energie v Commission

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/18

         Action brought on 15 April 2008 — E.ON Energie v Commission
   (Case T-141/08)
   (2008/C 158/30)
   Language of the case: German
   Parties

      Applicant: E.ON Energie AG (Munich, Germany) (represented by: A. Röhling, C. Krohs and F. Dietrich, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the defendant's Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie;

               —

               In the alternative, reduce the amount of the fine imposed on the applicant to an appropriate amount;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant challenges Commission Decision C(2008) 377 Final of 30 January 2008 in Case COMP/B-1/39.326 — E.ON Energie AG. In that decision the Commission imposed a fine on the applicant as it broke a seal affixed by representatives of the Commission under Article 20(2)(d) of Regulation (EC) No 1/2003 (1) and, at least negligently, infringed Article 23(1)(e) of that regulation.
   The applicant relies on nine pleas in law in support of its action. In the first six pleas the applicant attempts to state that there is insufficient evidence of an infringement of the law. It is submitted in particular that there was failure to have regard to the full burden of proof which lies with the defendant, infringement of the inquisitorial principle, an erroneous assumption that the seal was affixed properly, a false assumption that there was something amiss with the condition of the seal on the following day, a false assumption as to the suitability of the security foil, and that there was failure on the defendant's part to consider alternative scenarios.
   With the seventh plea it is submitted that the presumption of innocence was disregarded and thus essential rules as to procedure and form were infringed.
   Eighth, the applicant submits that the defendant erred in making the accusation of fault for the purpose of Article 23 of Regulation No 1/2003.
   Lastly, it is submitted that there were infringements of the law when the fine was calculated. According to the applicant there was infringement of the principle prohibiting arbitrary measures and of the obligation to state reasons laid down in Article 253 EC. There was failure to have regard to mitigating circumstances and an erroneous acceptance of aggravating circumstances.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


23 . 9 . 95             EN                   Official Journal of the European Communities                               No C 248/ 13
      16 of the EEC Treaty ), the prohibition of discrimination         Kingdom of Spain v. Commission of the European
      ( Article 95 of the EEC Treaty) and other provisions of           Communities .
      Community law to make the exporter bear the full costs
      under national law of regular or occasional analyses ?            (') OJ No C 103 , 11 . 4 . 1994 .
(>) OJ No L 180 , 6 . 7 . 1976 , p . 9 .
(2 ) OJ No L 199 , 7. 8 . 1979 , p . 10 .
( 3 ) OJ No L 199 , 7. 8 . 1979 , p . 1 .                                        Removal from the register of Case C-95/94 ( J )
                                                                                ( 95/C 248/29 )
                                                                        By order of 1 1 July 1995 the President of the Sixth Chamber
                                                                        of the Court of Justice of the European Communities
        Removal from the register of Case C-l 80/94 ( )                 ordered the removal from the register of Case C-95/94 :
                            ( 95/C 248 /26 )                            Commission of the European Communities v. Kingdom of
                                                                        Spain.
By order of 12 June 1995 the President of the Sixth Chamber
of the Court of Justice of the European Communities                     (') OJ No C 161 , 11 . 6 . 1994 .
ordered the removal from the register of Case C-l 80/94 :
Commission of the European Communities v. Hellenic
Republic .
                                                                                Removal from the register of Case C-471/93
 (') OJ No C 233 , 20 . 8 . 1994 .                                                              and Case C-47/94 (M
                                                                                ( 95/C 248 /30 )
                                                                        By order of 1 4 July 1995 the President of the Court of Justice
                                                                        of the European Communities ordered the removal from the
         Removal from the register of Case C-67/92 (*)                  register of Case C-471 /93 and Case C-47/94 : United
                            ( 95/C 248/27 )                             Kingdom of Great Britain and Northern Ireland v.
                                                                        Commission of the European Communities, supported by
 By order of 30 June 1995 the President of the Court of                 the Kingdom of Spain, the Italian Republic and the Hellenic
Justice of the European Communities ordered the removal                 Republic .
 from the register of Case C-67/92 ( reference for a
 preliminary ruling from the Tribunal de Grande Instance                 (') OJ No C 43 , 12 . 2 . 1994 and
 de Rennes): Societe l'Hexagone v. Societe des Auteurs,                        OJ No C 90 , 26 . 3 . 1994 .
 Compositeurs et Editeurs de Musique ( SACEM ).
 O OJ No C 86 , 7. 4 . 1992 .
                                                                                Removal from the register of Case C-154/94 ( )
                                                                                95/C 248/31
                                                                         By order of 14 July 1995 the President of the Court of Justice
         Removal from the register of Case C-53/94 ( )                   of the European Communities ordered the removal from the
                             ( 95/C 248/28 )                             register of Case C-154/94 ( reference for a preliminary
                                                                         ruling from the Sozialgericht Berlin ): Bahar Kockaya v.
  By order of 1 1 July 1 995 the President of the Fifth Chamber          Bundesanstalt fiir Arbeit.
  of the Court of Justice of the European Communities
  ordered the removal from the register of Case C-53/94 :                t 1 ) OJ No C 218 , 6 . 8 . 1994 .


title: Case T-330/03: Action brought on 26 September 2003 by Xanthippi Liakoura against the Council of the European Union

text:
C 289/30               EN                          Official Journal of the European Union                                         29.11.2003
Action brought on 19 September 2003 by STICHTING                           decision, in that contrary to the requirements of these pro-
AL-AQSA against the Council of the European Union and                      visions no decision had been taken by a competent authority
         Commission of the European Communities                            in respect of the applicant, concerning the instigation of
                                                                           investigations or prosecution for a terrorist act, based on
                                                                           serious and credible evidence or clues. The applicant also
                         (Case T-327/03)                                   invokes alleged violations of the general principles of Com-
                                                                           munity law, in particular the principles of proportionality, the
                        (2003/C 289/62)                                    right to a fair hearing, the right to privacy, the right to freedom
                                                                           of expression and association, and the right to property.
                                                                           Finally, the applicant submits that the contested decisions
                   (Language of the case: English)                         violate the freedom of circulation of capital protected by
                                                                           article 56 of the EC Treaty.
An action against the Council of the European Union and the                (1) OJ L 344, 28.12.2001, p. 70-75.
Commission of the European Communities was brought                         (2) OJ L 344, 28.12.2001, p. 93-94.
before the Court of First Instance of the European Communities
on 19 September 2003 by STICHING AL-AQSA, Heerlen, The
Netherlands, represented by Victor Koppe and Laura Janssen,
lawyers.
The applicant claims that the Court should:
                                                                           Action brought on 26 September 2003 by Xanthippi
—     Partially annul, on the basis of Article 230 of the EC
                                                                               Liakoura against the Council of the European Union
      Treaty, COUNCIL DECISION 2003/480/EC of 27 June
      2003 and/or COUNCIL DECISION 2003/646/EC of
      12 September 2003, implementing Article 2 paragraph 3                                          (Case T-330/03)
      of Regulation (EC) No. 2580/2001 on specific restrictive
      measures directed against certain persons and entities
      with a view to combatting terrorism and more specifi-                                         (2003/C 289/63)
      cally;
                                                                                (Language of the case: French)
—     Annul article 1, part 2, point 22, that reads: ‘Stichting Al
      Aqsa (alias Stichting Al Aqsa Nederland, alias Al Aqsa
      Nederland)’
—     Declare inapplicable, on the basis of Article 241 of the             An action against the Council of the European Union was
      EC Treaty, Council Regulation (EC) No 2580/2001 of                   brought before the Court of First Instance of the European
      27 December 2001, on specific restrictive measures                   Communities on 26 September 2003 by Xanthippi Liakoura,
      directed against certain persons and entities with a view            residing in Brussels, represented by J.A. Martin, avocat.
      to combatting terrorism.
—     Require the defendants to bear the costs of suit.                    The applicant claims that the Court should:
                                                                           —     annul the Council’s decision dated 18 June 2003 and
                                                                                received on 23 June 2003 not to promote the applicant
Pleas in law and main arguments                                                  to Grade C 1 in the 2002 promotion procedure;
                                                                           —     order the Council to pay the applicant the sum of
By the contested decisions the applicant was included in the                     EUR 30 000;
list of persons whose assets were frozen in application of
Council Regulation (EC) No 2580/2001 of 27 December 2001                   —     order the Council to pay the costs.
on specific restrictive measures directed against certain persons
and entities with a view to combatting terrorism (1). In support
of its application the applicant invokes first of all alleged
violations of essential procedural requirements, more specifi-
cally an alleged failure to state any reasons in the contested             Pleas in law and main arguments
decisions and an alleged violation of its right to be heard prior
to the adoption of the contested decision. The applicant further
submits that regulation 2580/2001, as well as Common                       The applicant in this case challenges the Appointing Auth-
Position 2001/931/CFSP (2), to which article 2 paragraph 3 of              ority’s refusal to promote her to Grade C 1 in the 2002
regulation 2580/2001 refers, were infringed by the contested               promotion procedure.
 ---pagebreak--- 29.11.2003            EN                          Official Journal of the European Union                                         C 289/31
In support of her claims, she alleges, apart from the fact of                   The Joint Committee on Staff Reports did not express an
having been the victim of harassment in the work place, an                      opinion on all the criticisms levelled by the applicant and
error in the reasoning and irregularity in the promotion                        he was not consulted beforehand;
procedure, in that the contested decision does not enable her
to know if it was really the Appointing Authority which made              —     that there was in the circumstances of the case a manifest
the choice provided for by Article 45 of the Staff Regulations,                 error of appreciation inasmuch as, on the one hand, the
or whether it confined itself to confirming the conclusions of                  staff report at issue contains criticisms to which voice
the Consultative Commission on Promotions (CCP).                                was never given at the material time, which are strongly
                                                                                contested and which are not borne out by any evidence
                                                                                and as, on the other, the defendant puts forward a
                                                                                problem which arose after the period covered by the
                                                                                report.
                                                                          Lastly, the applicant alleges misuse by the Commission of its
Action brought on 21 September 2003 by Michael Cwik                       powers and mental harassment.
  against the Commission of the European Communities
                         (Case T-331/03)
                         (2003/C 289/64)
                                                                          Action brought on 29 September 2003 by European
                                                                          Service Network against the Commission of the European
                   (Language of the case: French)                                                   Communities
                                                                                (Case T-332/03)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                        (2003/C 289/65)
European Communities on 21 September 2003 by Michael
Cwik, residing in Tervuren (Belgium), represented by Nicolas
Lhoëst, lawyer, with an address for service in Luxembourg.                                   (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
—     annul the Secretary General’s decision of 31 October                European Communities on 29 September 2003 by European
      2002 confirming unamended the applicant’s staff report              Service Network, established in Brussels, represented by René
      for the period 1 July 1999 to 30 June 2001;                         Steichen, lawyer, with an address for service in Luxembourg.
—     order the defendant to pay compensation of EUR 6 500;
                                                                          The applicant claims that the Court should:
—     order the defendant to pay all the costs.
                                                                          —     annul Invitation to tender ENTR/02/055 — CORDIS —
                                                                                Lot 1;
Pleas in law and main arguments                                           —     order the Commission to pay the costs.
The applicant in this case challenges the appointing authority’s
refusal to amend his staff report for the period 1999/2001.               Pleas in law and main arguments
                                                                          The applicant submitted a tender pursuant to lot 1 of Invitation
In support of his claims he puts forward the following                    to tender ENTR/02/055 — CORDIS. The applicant was not
arguments:                                                                successful.
—     that there was a breach of the pre-litigation procedure
      because, inter alia, the staff report in question was drawn         The applicant contests the award of the contract to the
      up on the basis of two memos drafted by two of his                  successful tenderer. According to the applicant, the Com-
      former line managers. It is not clear whether the first of          mission did not comply with the principle of equal treatment
      those two memos refers to the period concerned, while               of tenderers or the rule of transparency in the tendering
      the second refers to matters taking place after that period.        procedure.


title: Judgment of the Court of First Instance 20 March 2002 in Case T-23/99: LR AF 1998 A/S v Commission of the European Communities (Competition — Cartel — District heating pipes — Article 85 of the EC Treaty (now Article 81 EC) — Continuous infringement — Boycott — Access to the file — Fine — Guidelines on the method of setting fines — Non-retroactivity — Legitimate expectations)

text:
C 144/36               EN                      Official Journal of the European Communities                                      15.6.2002
2.    Orders the defendant to bear its own costs and to pay those of      2.    Orders the applicant to pay the costs.
      the applicant;
3.    Orders the French Republic to bear its own costs.                   (1) OJ C 86 of 27.3.1999.
(1) OJ C 378 of 5.12.1998.
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                20 March 2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               in Case T-23/99: LR AF 1998 A/S v Commission of the
                                                                                European Communities (1)
                          20 March 2002                                   (Competition — Cartel — District heating pipes —
                                                                          Article 85 of the EC Treaty (now Article 81 EC) —
                                                                          Continuous infringement — Boycott — Access to the file —
in Case T-17/99: KE KELIT Kunststoffwerk GmbH v                           Fine — Guidelines on the method of setting fines — Non-
       Commission of the European Communities (1)                                     retroactivity — Legitimate expectations)
                                                                                (2002/C 144/77)
(Competition — Cartel — District heating pipes —
Article 85 of the EC Treaty (now Article 81 EC) — Fine —
Equal treatment — Guidelines on the method of setting fines                                  (Language of the case: English)
                      — Non-retroactivity)
                         (2002/C 144/76)                                  In Case T-23/99, LR af 1998 A/S (formerly Løgstør Rør A/S),
                                                                          established in Løgstør (Denmark), represented by D. Wael-
                                                                          broeck and H. Peytz, lawyers, with an address for service in
                   (Language of the case: German)                         Luxembourg, v Commission of the European Communities
                                                                          (Agents: P. Olivier and E. Gippini Fournier): Application for,
                                                                          primarily, annulment of Commission Decision 1999/60/EC of
                                                                          21 October 1998 relating to a proceeding under Article 85 of
                                                                          the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe
                                                                          Cartel) (OJ 1999 L 24, p. 1) or, in the alternative, reduction of
In Case T-17/99, KE KELIT Kunststoffwerk GmbH, established                the fine imposed on the applicant by that decision, the Court
in Linz (Austria), represented by G. Grassner and W. Löbl,                of First Instance (Fourth Chamber), composed of: P. Mengozzi,
lawyers, with an address for service in Luxembourg, v Com-                President, V. Tiili and R. M. Moura Ramos, Judges; G. Herzig,
mission of the European Communities (Agents: W. Mölls and                 Administrator, for the Registrar, has given a judgment on
E. Gippini Fournier): Application for, primarily, annulment of            20 March 2002, in which it has ruled:
Commission Decision 1999/60/EC of 21 October 1998
relating to a proceeding under Article 85 of the EC Treaty
(Case No IV/35.691/E-4: — Pre-Insulated Pipe Cartel) (OJ                  1.    Dismisses the application;
1999 L 24, p. 1) or, in the alternative, reduction of the fine
imposed on the applicant by that decision, the Court of
First Instance (Fourth Chamber), composed of: P. Mengozzi,                2.    Orders the applicant to pay the costs.
President, V. Tiili and R. M. Moura Ramos, Judges; G. Herzig,
Administrator, for the Registrar, has given a judgment on
20 March 2002, in which it:                                               (1) OJ C 86 of 27.3.1999.
1.    Dismisses the application;


title: Judgment of the Court (Fifth Chamber) of 15 March 2001 in Case C-85/99 (reference for a preliminary ruling from the Oberster Gerichtshof, Austria): by Vincent Offermanns and Esther Offermanns (Regulation (EEC) No 1408/71 — Definition of "family benefits" — National legislation providing for payment of advances on maintenance payments due by a worker to his minor child — Condition concerning the child's nationality)

text:
30.6.2001                 EN                      Official Journal of the European Communities                                            C 186/3
D.A.O. Edward, P. Jann and L. Sevón (Rapporteur), Judges;                   ings pending before that court by Vincent Offermanns and
J. Mischo, Advocate General; H.A. Rühl, Principal Adminis-                   Esther Offermanns — on the interpretation of Articles 3 and
trator, for the Registrar, has given a judgment on 15 March                  4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June
2001, in which it has ruled:                                                 1971 on the application of social security schemes to
                                                                             employed persons, to self-employed persons and to members
1.    In order to determine whether a frontier worker is to be regarded      of their families moving within the Community, as amended
      as partially unemployed or wholly unemployed within the                and updated by Council Regulation (EC) No 118/97 of
      meaning of Article 71(1)(a) of Council Regulation (EEC)                2 December 1996 (OJ 1997 L 28, p. 1), and of Articles 6 and
      No 1408/71 of 14 June 1971 on the application of social                52 of the EC Treaty (now, after amendment, Articles 12 EC
      security schemes to employed persons, to self-employed persons         and 43 EC), — the Court (Fifth Chamber), composed of: A. La
      and to members of their families moving within the Community,          Pergola, President of the Chamber, M. Wathelet, D.A.O. Edward
      as amended and updated by Council Regulation (EEC)                     (Rapporteur), P. Jann and L. Sevón, Judges; S. Alber, Advocate
      No 2001/83 of 2 June 1983, uniform Community criteria                  General; H.A. Rühl, Principal Administrator, for the Registrar,
      must be applied. That assessment may not be made on the                has given a judgment on 15 March 2001, in which it has
      basis of criteria drawn from national law.                             ruled:
2.    If, in a Member State other than that in whose territory he
      resides, a worker remains in employment with the same                  A benefit such as the advances on maintenance payments provided
      undertaking, but part-time, while remaining available for work         for by the Austrian Bundesgesetz über die Gewährung von Vorschüss-
      on a full-time basis, he is partially unemployed and the related       en auf den Unterhalt von Kindern (Unterhaltsvorschussgesetz)
      benefits are to be provided by the competent institution of that       (Federal Austrian Law on the Grant of Advances on Maintenance for
      State. On the other hand, if a frontier worker no longer has any       Children) constitutes a family benefit within the meaning of
      link with that State and is wholly unemployed, those benefits          Article 4(1)(h) of Council Regulation (EEC) No 1408/71 of 14 June
      are to be provided by the institution of the place of residence at     1971 on the application of social security schemes to employed
      its own expense. It is for the national court to determine on the      persons, to self-employed persons and to members of their families
      basis of those criteria, in the case pending before it, the category   moving within the Community, as amended and, updated by Council
      to which the worker in question belongs.                               Regulation (EC) No 118/97 of 2 December 1996. Consequently,
                                                                             persons residing in the territory of a Member State to which the
                                                                             provisions of that regulation apply are entitled, in accordance with
(1) OJ C 48 of 20.2.1999.                                                    Article 3 of that regulation, to receive such a benefit under the
                                                                             legislation of that Member State on the same conditions as that
                                                                             State’s nationals.
                                                                             (1) OJ C 174 of 19.6.1999.
                  JUDGMENT OF THE COURT
                            (Fifth Chamber)
                           of 15 March 2001                                              ORDER OF THE COURT OF JUSTICE
in Case C-85/99 (reference for a preliminary ruling from                                               (Third Chamber)
the Oberster Gerichtshof, Austria): by Vincent
             Offermanns and Esther Offermanns (1)                                                   of 16 November 2000
(Regulation (EEC) No 1408/71 — Definition of ‘family                         in Case C-289/99 P: Schiocchet SARL v Commission of
benefits’ — National legislation providing for payment of                                     the European Communities (1)
advances on maintenance payments due by a worker to his
minor child — Condition concerning the child’s nationality)                  (Appeal — International coach and bus transport of passen-
                                                                                gers — Appeal manifestly unfounded)
                            (2001/C 186/05)
                                                                                (2001/C 186/06)
                    (Language of the case: German)
                                                                                (Language of the case: French)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-85/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Oberster                         In Case C-289/99 P: Schiocchet SARL, having its registered
Gerichtshof, Austria, for a preliminary ruling in the proceed-               office in Beuvillers, France, represented by P. Barbier, avocat,


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 19 June 1997 in Case T-73/96: Miguel Forcat Icardo v. Commission of the European Communities (Officials - Assignment to a new post - Interests of the service - Misuse of powers)

text:
16 . 8 . 97             EN                   Official Journal of the European Communities                               No C 252/25
3 . orders the parties, including the interveners, to bear                JUDGMENT OF THE COURT OF FIRST INSTANCE
     their own costs .
                                                                                of 19 June 1997
(') OJ No C 275 , 13 . 10 . 1993 .                                      in Case T-73/96: Miguel Forcat Icardo v. Commission of
                                                                                the European Communities (')
                                                                        (Officials — Assignment to a new post — Interests of the
                                                                                service — Misuse ofpowers)
                                                                                ( 97/C 252/54
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: French)
                          of 19 June 1997
in Case T-260/94 : Air Inter SA v. Commission of the
                   European Communities (' )
                                                                        In Case T-73/96 : Miguel Forcat Icardo, an official of the
                                                                        Commission, residing in Brussels, represented by Georges
(Air transport — Continuation of an exclusive concession                Vandersanden, of the Brussels Bar, with an address for
on domestic routes — Regulation (EEC) No 2408/92 —                      service in Luxembourg at the offices of Fiduciaire Myson
Articles 5 and 8 — Rights of the defence — Audi alteram                 Sari, 30 Rue de Cessange, v. Commission of the European
partem — Principle of good faith — Principle of                         Communities ( Agent: Julian Currall ) — application for
     proportionality -— Article 90 (2) of the EC Treaty)                annulment of the memorandum of the Director-General of
                                                                        Directorate-General IX ( Personnel and Administration ) of
                            ( 97IC 252/53 )                             11 August 1995 assigning the applicant to a new post
                                                                        with effect from 1 October 1995 and for compensation
                 (Language of the case: French)                         for the non-material damage suffered — the Court of First
                                                                        Instance ( Third Chamber ), composed of: B. Vesterdorf,
                                                                        President, and C. P. Briët and A. Potocki, Judges; B.
In Case T-260/94 : Air Inter SA, having its registered office           Pastor, Principal Administrator, for the Registrar, has given
in Paray Vieille Poste, France, represented by Jean-Pierre              a judgment on 19 June 1997, in which it:
Spitzer, of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Aloyse May, 31 Grand
Rue, against Commission of the European Communities                      1 . dismisses the application as inadmissible in so far as it
(Agents: Rolf Wägenbaur and Lucio Gussetti ), supported                       concerns the claim for compensation based on the
by TAT European Airlines, represented by Antoine                             second paragraph of Article 24 of the Staff
Winckler, of the Paris Bar, and Romano Subiotto,                              Regulations of officials of the European Communities;
Solicitor, with an address for service in Luxembourg at the
Chambers of Elvinger and Hoss, 2, Place Winston
Churchill, and United Kingdom of Great Britain and                      2 . dismisses the remainder of the application;
Northern Ireland ( Agents: John E. Collins and Richard
Plender) — application for annulment of Article 1 of                    3 . orders the parties to bear their own costs.
Commission Decision 94/291/EC of 27 April 1994 on a
procedure relating to the application of Council
Regulation ( EEC ) No 2408/92 ( Case VII/AMA/IV/93 —                     (') OJ No C 233 , 10 . 8 . 1996 .
TAT — Paris ( Orly) — Marseille and Paris ( Orly ) —
Toulouse ) ( OJ No L 127, 19 . 5 . 1994, p. 32 ) — the Court
of First Instance               ( Second    Chamber,     Extended
 Composition ), composed of: C. W. Bellamy, President, C. P.
 Briët and A. Kalogeropoulos, Judges; J. Palacio Gonzales,
Administrator, for the Registrar, has given a judgment on
 19 June 1997, in which it:                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 25 June 1997
 1 . dismisses the application;                                          in Case T-7/96: Francesco Perillo v. Commission of the
                                                                                European Communities (')
 2 . orders the applicant to pay the costs, including those              (Lomé Convention — European Development Fund —
      of the proceedings in Case C-301 /94 which took place              Non-payment of contract — Commission's non
      before the Court of Justice and those incurred by TAT,                                    contractual liability)
      but not those incurred by the United Kingdom                                                   ( 97/C 252/55 )
      Government, an intervening party, which shall bear its
      own costs .
                                                                                (Language of the case: French)
 (') OJ No C 275 , 1 . 10 . 1994 .
                                                                         In Case T-7/96 : Francesco Perillo, trading as ITAM
                                                                         SIDER, residing in Altamura, Italy, represented by Mario


title: Reference for a preliminary ruling by the Netherlands Raad van State, by judgment of that court of 12 March 1996 in the case of Mayor and Aldermen of Haarlemmerliede and Spaarnwoude and Others v. Gedeputeerde Staten of Noord-Holland (Case C-81/96)

text:
No C 133/ 18          EN                  Official Journal of the European Communities                                      4 . 5 . 96
Reference for a preliminary ruling by order of the Civil             Action brought on 19 March 1996 by the Kingdon of the
Division of the Tribunale Civile e Penale, Trento, of                Netherlands against the Commission of the European
15 February 1996 in the case of Grundig Italiana v.                                             Communities
                   Ministero delle Finanze
                                                                                Case C-84/96 )
                       ( Case C-68/96 )                                                        ( 96/C 133/39 )
                         ( 96/C 133/37 )
Reference has been made to the Court of Justice of the               An action against the Commission of the European
                                                                     Communities was brought before the Court of Justice of the
European Communities by order of the Civil Division of the
Tribunale Civile e Penale ( Civil and Criminal District              European Communities on 19 March 1996 by the Kingdom
Court ), Trento, of 15 February 1996 , which was received at         of the Netherlands, represented by J. S. van den Oosterkamp
                                                                     and M. A. Fierstra , acting as Agents, with an address for
the Court Registry on 14 March 1996 , for a preliminary
                                                                     service in Luxembourg at the Netherlands Embassy, 5 Rue
ruling in the case of Grundig Italiana SpA against Ministero
                                                                     C. M. Spoo .
delle Finanze ( Ministry of Finance ) on the following
question :
                                                                     The applicant claims that the Court should :
Must Article 95 of the EC Treaty by interpreted as
prohibiting a Member State from introducing and collecting
a national consumption tax of the kind provided for by               — annul the debit note of 15 January 1996 and the
Article 4 of the Decree-Law of 30 December 1982,                         Commission decisions of 16 February 1996 concerning
converted into law by Law No 53 of 28 February 1983 , and                the completion of projects ERDF No 80.07.03.002
                                                                         ( Veendam-Musselkanaal ) and ERDF No 84.07.03.004
further governed by the Decree of the Ministry of Finance of
23 March 1983 , in so far as different taxable amounts are               (Weg Veendam ), which were co-financed prior to 1989
                                                                         by the European Regional Development Fund;
determined for domestic products and for those imported
from other Member States and different procedures are laid
down for collection of the tax on the same products ?                — order the defendant to pay the costs .
                                                                     Pleas in law and main arguments
                                                                     The pleas in law and mains arguments adduced in support
Reference for a preliminary ruling by the Netherlands Raad           are the same as those in Case C-308/95(M .
van State, by judgment of that court of 12 March 1996 in the
case of Mayor and Aldermen of Haarlemmerliede and
                                                                     (') OJ No C 299 , 11 . 11 . 1995 , p . 13 .
Spaarnwoude and Others v. Gedeputeerde Staten of
                       Noord-Holland
                       ( Case C-81 /96 )
                         ( 96/C 133/38 )
Reference has been made to the Court of Justice of the
European Communites by judgment of the Netherlands                   References for preliminary rulings from the Tribunale di
Raad van State ( State Council ) of 12 March 1996, which             Genova — Prima Sezione Civile — by orders of that court of
was received at the Court Registry on 18 March 1996 , for            1 February and 7 March , 1996 in the cases of ( 1 ) Palmera
a preliminary ruling in the case of Mayor and Aldermen               SpA, ( 2 ) Cesare Rognoli & Figlio Srl and ( 3 ) Igino Mazzola
of Haarlemmerliede and Spaarnwoude and Others v.                                  v. Ministero delle Finanze dello Stato
Gedeputeerde Staten ( Provincial Executive ) of Noord
Holland on the following question :                                             ( Cases C-86/96, C-87/96 and C-88/96 )
                                                                                96/C 133/40 )
Does Council Directive 85/337/EEC of 27 June 1985 on the
assessment of the effects of certain public and private
projects on the environment ( 1 ) permit consent to be granted       Reference has been made to the Court of Justice of the
for a project mentioned in Annex I to the Directive where , in       European Communities by orders of the Tribunale di
the course of the preparation of the consent, no                     Genova — Prima Sezione Civile — ( District Court, Genoa,
environmental impact assessment within the meaning of the            First Civil Section ) of 1 February and 7 March 1996,
Directive was conducted in a case in which the consent               received at the Court Registry on 21 March 19 96 , for a
relates to a project for which consent had been granted              preliminary ruling in the cases of ( 1 ) Palmera SpA, ( 2 )
before 3 July 1988 , no use was made of that consent and             Cesare Rognoli & Figlio Sri and ( 3 ) Igino Mazzola v .
no environmental impact assessment satisfying the                    Ministero delle Finanze dello Stato on the questions
requirements of the Directive was conducted in the course of         identical to those in Joined Cases C-47/95 and others ( J ).
the preparation of that consent ?
                                                                     (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
(') OJ No L 175 , 1985 , p . 40 .


title: Case T-331/01: Action brought on 18 December 2001 by Huntstown Air Park Limited and Omega Aviation Services Limited against the Commission of the European Communities

text:
C 109/46                EN                      Official Journal of the European Communities                                     4.5.2002
represented by N. Lhoëst, lawyer, with an address for service              No 01/2000 and that the defendant is not empowered
in Luxembourg, v Council of the European Union (Agents:                    unilaterally to introduce amendments to the terms and con-
T. Blanchet and G. Ramos Ruano) — application for annulment                ditions of employment or Staff Rules into the contracts
of the Council’s decision of 13 August 1996 rejecting the                  between the applicants and itself, nor to enforce such amend-
applicant’s request for a review of his classification in grade —          ments, — the Court of First Instance (Third Chamber),
the Court of First Instance (First Chamber), composed of:                  composed of M. Jaeger, President, K. Lenaerts and J. Azizi,
B. Vesterdorf, President; N.J. Forwood and H. Legal, Judges;               Judges; Registrar: H. Jung, made an order on 11 December
H. Jung, Registrar, made an order on 11 December 2001, the                 2001, the operative part of which is as follows:
operative part of which is as follows:
1.    The application is dismissed as inadmissible;                        1.   The application is dismissed as inadmissible.
2.    The parties are ordered to bear their own costs.
                                                                           2.   The parties shall bear their own costs.
(1) OJ C 181 of 14.6.97.
                                                                           (1) OJ 2001 C 108.
      ORDER OF THE COURT OF FIRST INSTANCE
                      of 11 December 2001
in Case T-20/01 Maria Concetta Cerafogli and Others v
                    European Central Bank (1)                              Action brought on 18 December 2001 by Huntstown
                                                                           Air Park Limited and Omega Aviation Services Limited
                                                                             against the Commission of the European Communities
(Amendment of the Staff Rules of the European Central
      Bank — Action for annulment — Inadmissibility)
                                                                                (Case T-331/01)
                          (2002/C 109/92)
                                                                                (2002/C 109/93)
                   (Language of the case: German)
                                                                                (Language of the case: English)
In Case T-20/01, Maria Concetta Cerafogli, residing in Frank-
furt (Federal Republic of Germany), Monika Esch-Leonhardt,
residing in Frankfurt, Marco Luigi Fassetta, residing in Wiesba-
den (Federal Republic of Germany), Tillmann Frommhold,
residing in Karben (Federal Republic of Germany), Johannes                 An action against the Commission of the European Communi-
Priesemann, residing in Frankfurt and Marc van de Velde,                   ties was brought before the Court of First Instance of the
residing in Usingen (Federal Republic of Germany), represented             European Communities on 18 December 2001 by Huntstown
by N. Pflüger, R. Steiner and S. Mittländer, lawyers, with                 Air Park Limited and Omega Aviation Services Limited,
an address for service in Luxembourg, supported by the                     represented by Mr James O’Reilly, SC and Mr Charles A Kelly,
Organisation of Employees in European and International                    Solicitor of Douglas Kelly & Son, Swinford (Ireland).
Institutions in the Federal Republic of Germany (IPSO),
represented by B. Karthaus, M. Roth and C. Roth, lawyers, with
an address for service in Luxembourg, against European
Central Bank (Agents: C. Ziliolo, M. López Torres and B. Wäg-             The applicant claims that the Court should:
enbaur) — application for the annulment and/or a declaration
of inapplicability of Articles 7.2.0 and 8.1.0 of the Staff Rules,
Administrative Circular 01/2000 concerning Travel Expenses,                —    annul the second indent of Part 6 of the Commission’s
the gateway clause inserted into the applicants’ employment                     Decision no C(2001)2967 of 5 October 2001 concerning
contracts and the decision of the President of the ECB of                       State Aid NN 86/2001 — AER RIANTA — IRELAND;
27 November 2000 rejecting the applicants’ complaint, and
for a declaration that the ECB was required to consult the
personnel committee before adopting Administrative Circular                —    order the Commission to pay the applicant’s costs.
 ---pagebreak--- 4.5.2002              EN                     Official Journal of the European Communities                                      C 109/47
Pleas in law and main arguments                                         European Communities on 14 January 2002 by Zapf Creation
                                                                        AG, represented by Mr Axel Kockläuner of Meissner, Bolte &
                                                                        Partner, Munich (Germany).
The applicants are both part of the Omega group, which has a
substantial interest in aviation and the provision of such
services both within and without the European Community.                A further party to the proceedings before the Board of appeal
The Omega group has the intention of constructing and                   was Jesmar S.A.
operating a second terminal at Dublin airport which will
provide direct competition to the present terminal operated by
Aer Rianta, the Irish state-owned company that owns and
operates Dublin, Cork and Shannon airports.                             The applicant claims that the Court should:
                                                                        —     annul the decision of the First Board of Appeal of
By letter dated 4 December 1998, the applicants lodged a                      17 October 2001 in Case R 1123/2000-1 relating to
complaint with the Commission concerning alleged State aid                    Opposition Proceedings no. B 68587 and Community
in favour of Aer Rianta. It was alleged that aid had been                     trade mark application no. 50252 ‘Colette Zapf Creation’
granted, in particular, by a transfer of assets from the Minister
of Finance to Aer Rianta at a significant undervalue. On
5 October 2001, the Commission took a decision on the
complaint. In the second indent of Part 6 of this decision, the
Commission stated that the contested transfer of assets was             Pleas in law and main arguments
not a grant of aid.
                                                                        Applicant for the Com-        Zapf Creation AG
The applicants challenge the legality of this decision on three         munity trade mark:
grounds:
                                                                        The Community trade           The figurative mark ‘Colette Zapf
                                                                        mark concerned:               Creation’ for certain goods in
—     the Commission should have proceeded to open the                                                class 28
      formal investigation procedure pursuant to Article 4(4)
      of Regulation (EC) No 659/1999;
                                                                        Proprietor of the right to    Jesmar S.A.
                                                                        the trade mark or sign
—     the Commission misdirected itself as a matter of law in           asserted by way of oppo-
      determining that the transfer of assets at an undervalue          sition in the opposition
      did not constitute State aid within the meaning of                proceedings:
      Article 87(1) EC Treaty;
                                                                        Trade mark or sign            The Spanish word mark ‘Colette’
—     the Commission gave an inadequate statement of reasons            asserted by way of oppo-      for certain goods in class 28
      contrary to the requirements of Article 253 EC Treaty.            sition in the opposition
                                                                        proceedings:
                                                                        Decision of the Oppo-         Rejection of the opposition by
                                                                        sition Division:              Jesmar S.A.
                                                                        Decision of the Board of      Admission of the appeal lodged
                                                                        Appeal:                       by Jesmar S.A.
Action brought on 14 January 2002 by Zapf Creation AG
against the Office for Harmonisation in the Internal                    Grounds of claim:             Violation of Article 43, section 2,
                             Market                                                                   of Regulation 40/94 (1) since there
                                                                                was no satisfactory proof of the
                                                                                genuine use of the opposing
                          (Case T-7/02)                                                               trademark and violation of
                                                                                Article 8, Section 1 b) of Regu-
                                                                                lation 40/94 since there is no
                        (2002/C 109/94)                                                               danger of confusion.
                  (Language of the case: English)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 11, p. 1).
An action against the Office for Harmonisation in the Internal
Market was brought before the Court of First Instance of the


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 6 November 1997 in Case T-223/95: Luigi Ronchi v. Commission of the European Communities (Officials - Article 90 (1) of the Staff Regulations - Decision implicitly rejecting an application - Article 24 of the Staff Regulations - Duty to provide assistance)

text:
C 387/ 18                EN                   Official Journal of the European Communities                                 20 . 12 . 97
represented by Jean-Noel Louis, Thierry Demaseure and                    3 . orders the Commission to pay the costs.
Ariane Tornel , of the Brussels Bar, with an address for
service in Luxembourg at the Fiduciaire Myson Sari, 30                   (') OJ C 46 , 17 . 2 . 1996 .
Rue de Cessange , v. Commission of the European
Communities ( Agents : Julian Currall and Florence
Clotuche ) — application for the annulment of a
Commission decision of 9 October 1996 rejecting a review
of the decision on the applicant's classification in grade —
the Court of First Instance ( First Chamber ), composed of
A. Saggio, President, B. Vesterdorf and J. Pirrung, Judges;                JUDGMENT OF THE COURT OF FIRST INSTANCE
H. Jung, Registrar, gave a judgment on 5 November 1997,                                          of 6 November 1997
the operative part of which is as follows:
                                                                         in Case T-15/96: Lino Liao v. Council of the European
                                                                                Union (')
I . the application is dismissed;
                                                                         (Officials — Actions for annulment — Delay in drawing
                                                                         up staff report — Actions for damages — Admissibility —
2 . each party shall hear its own costs.                                                                   Damage)
                                                                                ( 97IC 387/32 )
(') OJ C 94 , 22 . 3 . 1997 .
                                                                                (Language of the case: French)
                                                                         In Case T-15/96 : Lino Liao, an official of the Council of
                                                                         the European Union, residing in Brussels, represented by
                                                                         Pierre-Paul Gehuchten and Constantin Nikis, of the
   JUDGMENT OF THE COURT OF FIRST INSTANCE                               Brussels Bar, with an address for service in Luxembourg at
                        of 6 November 1997                               the Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim,
                                                                         v. Council of the European Union ( Agents: Diego Canga
in Case T-223/95 : Luigi Ronchi v. Commission of the                     Fano and Marie-Jeanne Vernier ) — application for
                     European Communities (')                            annulment of the definitive staff report, dated 6 November
 (Officials — Article 90 (1 ) of the Staff Regulations —                  1995 , for the period from 1 July 1991 to 30 June 1993 ,
Decision implicitly rejecting an application — Article 24                notified to the applicant on 9 November 1995 , and for
     of the Staff Regulations — Duty to provide assistance)              damages — the Court of First Instance ( Second Chamber ),
                                                                         composed of: C. W. Bellamy, President, and A.
                              ( 97/C 387/31 )                            Kalogeropoulos and R. M. Moura Ramos, Judges; A.
                                                                         Mair, Administrator, for the Registrar, has given a
                                                                         judgment on 6 November 1997, in which it:
                  (Language of the case: French)
                                                                          1 . dismisses the action;
 In Case T-223/95 : Luigi Ronchi , a former official of the
 Commission of the European Communities, residing in
 Luxembourg, represented by Jean-Noel Louis, Thierry                     2 . orders the parties to bear their own costs.
 Demaseure , Veronique Leclercq and Ariane Tornel , of the
 Brussels Bar, with an address for service in Luxembourg at               (') OJ C 77, 16 . 3 . 1996 .
 the offices of Fiduciaire Myson SARL, 30 Rue de
 Cessange , v. Commission of the European Communities
 ( Agents : Gianluigi Valsesia and Julian Currall ) —
 application, first, for annulment of a decision implicitly
 rejecting an application for assistance submitted by the
 applicant on 30 January 1995 and, second, for payment of
                                                                            JUDGMENT OF THE COURT OF FIRST INSTANCE
 the token sum of ECU 1 - by way of compensation for the
 non-material damage allegedly suffered by him — the                                              of 6 November 1997
 Court of First Instance ( Second Chamber ), composed of:
                                                                          in Case T-71/96: Sonja Edith Berlingieri Vinzek v.
 C. W. Bellamy, President, and A. Kalogeropoulos and
                                                                                Commission of the European Communities ( 1 )
 M. Jaeger, Judges; A. Mair, Administrator, for the
 Registrar, has given a judgment on 6 November 1997, in                   (Officials — Competition based on qualifications and tests
 which it :                                                                             — Non-admission to the oral tests)
                                                                                ( 97/C 387/33 )
  1 . annuls the Commission 's decision implicitly rejecting
       the application for assistance submitted by the                                      (Language of the case: French)
      applicant on 30 January 1995;
                                                                          In Case T-71 /96 : Sonja Edith Berlingieri Vinzek, a
 2 . dismisses the remainder of the application;                          probationer official of the Commission of the European


title: Case C-306/00: Action brought on 9 August 2000 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
C 285/6               EN                    Official Journal of the European Communities                                    7.10.2000
Reference for a preliminary ruling by the High Court of                Action brought on 9 August 2000 by the Commission of
Justice (England & Wales), Queen’s Bench Division                      the European Communities against the Kingdom of the
(Crown Office), by order of that court of 26 January 2000,                                        Netherlands
in the case of Regina against Ministry of Agriculture,
Fisheries and Food, ex parte: W.H. Strawson (Farms) Ltd                                         (Case C-306/00)
                 and J.A. Gagg & Sons (a firm)
                                                                                (2000/C 285/11)
                        (Case C-304/00)
                                                                       An action against the Kingdom of the Netherlands was
                        (2000/C 285/10)
                                                                       brought before the Court of Justice on 9 August 2000 by the
                                                                       Commission of the European Communities, represented by
Reference has been made to the Court of Justice of the                 C. Van Der Hauwaert, of its Legal Service, acting as Agent,
European Communities by an order of the High Court of                  with an address for service in Luxembourg at the office of
Justice (England & Wales), Queen’s Bench Division (Crown               C. Gómez de la Cruz, of its Legal Service, Wagner Centre,
Office) of 26 January 2000, which was received at the Court            Kirchberg.
Registry on 10 August 2000, for a preliminary ruling in the
case of Regina against Ministry of Agriculture, Fisheries and
Food, ex parte: W.H. Strawson (Farms) Ltd and J.A. Gagg &              The applicant claims that the Court should:
Sons (a firm), on the following question:
                                                                       —     declare that, by failing within the prescribed time-
                                                                             limits to adopt the laws, regulations and administrative
In circumstances where                                                       provisions necessary in order to implement the provisions
(i)   as a result of an inspection the competent authority                   of Council Directive 97/76/EC (1) of 16 December 1997
      discovers that an applicant under Arable Area Payments                 amending Directive 77/99/EEC and Directive 72/462/EEC
      Scheme has made an error (otherwise than intentionally                 with regard to the rules applicable to minced meat, meat
      or as a result of gross negligence) which has resulted in              preparations and certain other products of animal origin,
      an over-declaration of area in the application for aid                 the Kingdom of the Netherlands has failed to fulfil its
      payments; and                                                          obligations under the Treaty;
(ii) the competent authority is satisfied by reason of that            —     order the Kingdom of the Netherlands to pay the costs.
      inspection and other checks that the applicant has made
      a corresponding error in previous years resulting in each
                                                                       Pleas in law and main arguments
      of those years in an overdeclaration of area in the
      application for aid payments:
                                                                       The mandatory nature of the provisions of the third paragraph
is the competent national authority required to reduce the area        of Article 249 EC and of the first paragraph of Article 10 EC
actually determined on inspection pursuant to Article 9 (2) of         obliges the Member States to adopt the measures necessary in
Commission Regulation (EEC) No. 3887/92 (1) for the purpose            order to comply with directives addressed to them within the
of calculating the aid due in respect of previous years?               time-limit prescribed for so doing. The time-limit laid down in
                                                                       Article 4 of Directive 97/76/EC expired on 1 January 1999
                                                                       but the Kingdom of the Netherlands has not adopted the
(1) of 23 December 1992 laying down detailed rules for applying
    the integrated administration and control system for certain
                                                                       necessary measures, apart from the already existing ‘1993
    Community aid schemes (OJ L 391, 31.12.1992, p. 36).               Rules on testing and trading in meat products’.
                                                                       (1) OJ 1998 L 10, p. 25.


title: Case T-21/06: Judgment of the Court of First Instance of 6 October 2009 — Germany v Commission (State aid — Digital terrestrial television — Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg — Decision declaring the aid incompatible with the common market and ordering its recovery — Principles of sound administration and proportionality — Rights of the defence)

text:
               21.11.2009

               EN

               Official Journal of the European Union

               C 282/39

         Judgment of the Court of First Instance of 6 October 2009 — Germany v Commission
   (Case T-21/06) (1)

   (State aid - Digital terrestrial television - Aid granted by the German authorities to broadcasters which use the digital terrestrial television network (DVB-T) in Berlin-Brandenburg - Decision declaring the aid incompatible with the common market and ordering its recovery - Principles of sound administration and proportionality - Rights of the defence)
   2009/C 282/72
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: M. Lumma and C. Schulze-Bahr, Agents, assisted by G. Quardt, lawyer)

      Defendant: Commission of the European Communities (represented by: H. van Vliet and K. Gross, Agents)

      Re:

   Application for annulment of Commission Decision 2006/513/EC of 9 November 2005 on the State Aid which the Federal Republic of Germany has implemented for the introduction of digital terrestrial television (DVB-T) in Berlin-Brandenburg (OJ 2006 L 200, p. 14).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Federal Republic of Germany to pay the costs.

      (1)  OJ C 86, of 8.4.2006.


title: Action brought on 17 June 1997 by Huguette Meyer and others against the Court of Justice of the European Communities (Case T-181/97)

text:
16 . 8 . 97          EN                   Official Journal of the European Communities                              No C 252/35
First, the applicant alleges misuse of powers and abuse of           He pleads infringement of Article 23 of the Rules of
process, because the series of employment contracts or of            Procedure of the Commission of 17 February 1993 , since
contracts for the supply of services concluded with a series         he was automatically entitled and required to deputize for
of companies is unlawful, inasmuch as the contractual                his hierarchical superior during the latter's absences, in
terms were defined, not according to the needs of the                particular on 16 and 20 August 1996 . According to the
service, but with the sole aim of evading the application of         applicant, the contested decision was therefore adopted
the provisions of the Staff Regulations or other rules.              wilfully and in disregard of the steps taken by the
Those contracts must be regarded as concluded with an                applicant to ensure that his rights were respected.
agent covered by the Staff Regulations and/or the                    Moreover, such conduct represents a flagrant breach of
Conditions of Employment of Other Servants.                          the Commission's duty to have regard for his interests as
                                                                     one of its officials .
The second plea alleges breach of the duty to have regard
for the welfare and interests of officials, the duty to              His second plea alleges infringement of Article 25 of the
provide assistance and breach of the principle of                    Staff Regulation, on the ground that the Commission
protection of legitimate expectations, and also                      failed to provide a reasoned statement informing the
infringement of Article 3 of the European Convention on              applicant of the factors on the basis of which the merits of
                                                                     the contested decision could be assessed .
Human Rights, inasmuch as the Commission failed to
take action when the applicant requested its help .
                                                                     As regards the claim for compensation, the applicant
                                                                     maintains that he has suffered non-material damage, since
Last, the applicant assesses her non-material damage                 for nearly two years he has been in a state of uncertainty
caused by those infringements and failures at the symbolic           as to the future of his career.
sum of ECU 1 .
                                                                     Action brought on 17 June 1997 by Huguette Meyer and
Action brought on 11 June 1997 by Albano Moncada                     others against the Court of Justice of the European
                                                                                Communities
   against the Commission of the European Communities
                                                                                ( Case T-181/97)
                       ( Case T-l 78/97 )
                                                                                ( 97/C 252/77 )
                         ( 97/C 252/76 )
                                                                                (Language of the case: French)
                (Language of the case: French)
                                                                     An action against the Court of Justice of the European
An action against the Commission of the European                     Communities was brought before the Court of First
Communities was brought before the Court of First                    Instance of the European Communities on 17 June 1997
Instance of the European Communities on 11 June 1997                 by Huguette Meyer, residing at Mamer ( Luxembourg ),
by Albano Moncada, residing in Luxembourg, represented               Ines Bruno, residing in Luxembourg, Alba Muller di
by Jean-Noel Louis, Thierry Demaseure and Ariane                     Leonardo, residing at Mersch ( Luxembourg), Maria da
Tornel, of the Brussels Bar, with an address for service in          Paz Gomes, residing in Luxembourg, and Leonor Araujo,
Luxembourg at the offices of Fiduciaire Myson Sari, 30               residing at Strassen ( Luxembourg ), represented by Jean
Rue de Cessange.                                                     Noel Louis, Ariane Tornel and Fran?oise Parmentier, of
                                                                     the Brussels Bar, with an address for service in
                                                                     Luxembourg at the offices of Fiduciaire Myson Sari , 30
The applicant claims that the Court should:                          Rue de Cessange .
— annul the decision of 12 August 1996 directing a                   The applicants claim that the Court should:
     colleague of the applicant to deputize for his
     hierarchical superior during the latter's absences on 16        — annul the decisions expressly rejecting their requests
     and 20 August 1996,                                                  for reimbursement of the sums wrongly deducted in
                                                                          respect of household grants,
— order the Commission to pay to the applicant the                   — order the defendant to reimburse to them all sums
     token sum of ECU 1 ,                                                 wrongly deducted and to pay interest thereon at the
                                                                          rate of 8 % per annum from the date when each
— order the Commission to pay the costs .                                 deduction was made until the date of reimbursement,
                                                                     — order the defendant to pay the costs.
 Pleas in law and main arguments adduced in support:
                                                                      Pleas in law and main arguments adduced in support:
 The applicant, a grade A 4 official, contests the decision
 of his Head of Unit directing a colleague of the applicant           The applicants, whose spouses work in the Luxembourg
 to deputize for the Head of Division E-3 during the                  banking sector, state that up until June 1996 the defendant
 latter's absences on 16 and 20 August 1996 .                         deducted, pursuant to Article 67 ( 2 ) of the Staff
 ---pagebreak--- No C 252/36           EN                   Official Journal of the European Communities                                   16 . 8 . 97
Regulations of officials, the household grant received by             Instance of the European Communities on 20 June 1997
their husbands from the family allowances to which they               by BP Chemicals Limited, represented by James Flynn,
were entitled. In July 1996 they were informed that, in               with an address for service in Luxembourg at the
consequence of the judgment delivered by the Court of                 Chambers of Loesch & Wolter, 1 1 Rue Goethe.
First Instance on 11 June 1996 in Case T-147/95 Pavan v.
Parliament, and having considered the conditions
governing the award of the grant in question, the
                                                                      The applicant claims that the Court should:
administration had concluded that the grant could no
longer be regarded as an allowance of like nature to the
household allowance provided for in Article 1 of
Annex VII to the Staff Regulations and that it had                    — annul the Commission Decision No 941/96 of 28 April
therefore been decided that it would no longer deduct that                 1997 approving State aid; granted by France,
grant from the household allowance paid to the
applicants . The applicants thereupon requested retroactive
reimbursement of all of the sums deducted together with               — order the Commission to pay the costs .
default interest. Those requests were rejected by the
defendant on the ground that the applicants had not
challenged the acts adversely affecting them — namely, in
the present case, the remuneration statements in which the            Pleas in law and main arguments adduced in support:
contested    deductions      had  been   made — within      the
prescribed period.
                                                                      By the present application, the applicant seeks annulment
The applicants state, first, that they are seeking                    of the decision approving a French aid scheme, which
compensation for loss arising from fault on the part of the           consists essentially of a tax exemption for producers of
administration and not annulment of an act adversely                  certain biofuels designed to encourage them to purchase
affecting them, so that their claim falls within Article 179          certain inputs of agricultural origin ( the 1997 Scheme ).
of the EC Treaty and Articles 90 and 91 of the Staff
Regulations. They therefore consider that the procedure
followed by them is in accordance with the Staff
Regulations and with case-law and that their action is                The applicant concentrates in this application on the
admissible .                                                          contested decision as it affects ethyl tertiary butyl ether
                                                                      ( ETBE ) production and the ethanol market. It is submitted
As regards the substance of the case, the applicants                  in this regard that the contested decision should be
maintain that the administration is bound, under                      annulled on three principal grounds:
Article 67 ( 2 ) of the Staff Regulations and Articles 1 , 2
and 3 of Annex VII thereto, to undertake an examination
of the allowances declared by its officials, with a view to           First, the Commission has exceeded its margin of
establishing the nature thereof in the light of the rule              discretion in three respects . It has authorized an aid
against overlapping benefits, and that it does not enjoy              without requiring any financial limit or restrictions on
any discretion when carrying out that examination. The                volumes of production or the life of the 1997 Scheme. It
fact that it wrongly characterized the household grant                has failed to make any assessment of the impact of the
paid to Luxembourg bank employees as being of like                    Scheme on the ethanol market and has therefore failed to
nature to the household allowance paid to officials                   satisfy itself that trading conditions will not be adversely
therefore constitutes, in the applicants' view, a service            affected to an extent contrary to the common interest as
related fault. They infer from this that the administration           Article 92 ( 3 ) (c ) requires. The environmental benefits
is bound to reimburse the sums wrongly deducted as from               claimed for the Scheme are nugatory at best and could be
the date of adoption of the first decision, inasmuch as,              secured by far less expensive and less discriminatory
where a service-related fault, loss and a causal link are             measures .
established, Articles 179 and 215 of the EC Treaty and the
relevant case-law require the loss caused to be made good
in its entirety.
                                                                      Second, the Commission has misapplied Council Directive
                                                                      92/81/EEC concerning excise duty for mineral oils ( OJ No
                                                                      L 316, 31 . 10. 1992, p. 12 ). The only basis on which the
                                                                      1997 Scheme could qualify for a derogation from the
                                                                      requirement to levy excise duty which that Directive
Action brought on 20 June 1997 by BP Chemicals Limited                imposes is by a unanimous Council decision under
   against the Commission of the European Communities                 Article 8 ( 4 ) thereof. The suggestion that the 1997 Scheme
                                                                      can benefit for the derogation for pilot plants under
                        ( Case T-184/97)                              Article 8 (2 ) ( d ) thereof is wrong in law and in
                          ( 97IC 252/78 )                             contradiction with the position taken by the Commission
                                                                      in December 1996, when it declared the 1997 Scheme's
                 (Language of the case: English)                      predecessor measures illegal and incompatible with the
                                                                      common market and expressly stated that they could not
An action against the Commission of the European                      benefit from the 'pilot plant' derogation. Nothing has
Communities was brought before the Court of First                     changed to permit such a volte-face.


title: Joined Cases C-131/04 and C-257/04: Judgment of the Court (First Chamber) of  16 March 2006  (references for a preliminary ruling from the Court of Appeal, Employment Tribunal) — C.D. Robinson-Steele v R.D. Retail Services Ltd (C-131/04) — Michael Jason Clarke v Frank Staddon Ltd (C-257/04) and J.C. Caulfield, C.F. Caulfield, K.V. Barnes v Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04) (Social policy — Protection of the health and safety of workers — Directive 93/104/EC — Entitlement to paid annual leave — Inclusion of payment for annual leave in the hourly or daily remuneration ( rolled-up holiday pay )

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/7

         Judgment of the Court (First Chamber) of 16 March 2006 (references for a preliminary ruling from the Court of Appeal, Employment Tribunal) — C.D. Robinson-Steele v R.D. Retail Services Ltd (C-131/04) — Michael Jason Clarke v Frank Staddon Ltd (C-257/04) and J.C. Caulfield, C.F. Caulfield, K.V. Barnes v Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04)
   (Joined Cases C-131/04 and C-257/04) (1)

   (Social policy - Protection of the health and safety of workers - Directive 93/104/EC - Entitlement to paid annual leave - Inclusion of payment for annual leave in the hourly or daily remuneration (‘rolled-up holiday pay’)
   (2006/C 143/14)
   Language of the case: English
   Referring courts
   Court of Appeal, Employment Tribunal
   Parties to the main proceedings

      Applicants: C.D. Robinson-Steele (C-131/04), Michael Jason Clarke (C-257/04), J.C. Caulfield, C.F. Caulfield, K.V. Barnes (C-257/04)

      Defendants: R.D. Retail Services Ltd (C-131/04), Frank Staddon Ltd (C-257/04), Hanson Clay Products Ltd, formerly Marshalls Clay Products Ltd (C-257/04)
   Re:
   Reference for a preliminary ruling — Employment Tribunal — Interpretation of Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1997 L 307, p. 18) — Compatibility with that article of provisions of national law which allow pay for annual leave to be included in a worker's hourly remuneration and paid as part of the remuneration for working time but not paid in respect of a period of leave actually taken (‘rolled up holiday pay’)
   Operative part of the judgment

               1.

               Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time precludes part of the remuneration payable to a worker for work done from being attributed to payment for annual leave without the worker receiving, in that respect, a payment additional to that for work done. There can be no derogation from that entitlement by contractual arrangement.

               2.

               Article 7 of Directive 93/104 precludes the payment for minimum annual leave within the meaning of that provision from being made in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, rather than in the form of a payment in respect of a specific period during which the worker actually takes leave.

               3.

               Article 7 of Directive 93/104 does not preclude, as a rule, sums paid, transparently and comprehensibly, in respect of minimum annual leave, within the meaning of that provision, in the form of part payments staggered over the corresponding annual period of work and paid together with the remuneration for work done, from being set off against the payment for specific leave which is actually taken by the worker.

      (1)  OJ C 106, 30.04.2004.

      OJ C 217, 28.08.2004.


10.1.2004             EN                          Official Journal of the European Union                                          C 7/43
The applicant claims that the Court should:                                      Removal from the register of Case T-131/02 (1)
—     annul the implied decision which the appointing auth-                                        (2004/C 7/80)
      ority might be deemed to have taken, rejecting the
      complaint made by the applicant on 29 October 2002,
      by which it requested the annulment of a decision dated                               (Language of the Case: English)
      6 August 2002, refusing to grant a request for assistance
      and compensation made on 24 January 2002 on the basis
      of Article 24 and Article 90(1) of the Staff Regulations;           By order of 2 October 2003 the President of the Fifth Chamber
                                                                          of the Court of First Instance of the European Communities
—     so far as necessary also annul that decision of 6 August            ordered the removal from the register of Case T-131/02:
      2002, against which the complaint of 29 October 2002                Travelex Global and Financial Services Limited and Interpay-
      was made;                                                           ment Services Limited v Commission of the European Com-
                                                                          munities.
—     order the defendant to pay compensation of EUR 50 000,
      without prejudice to subsequent increase, reduction or
      alteration;                                                         (1) OJ C 169 of 13.07.2002.
—     order the defendant to pay the costs and the expenses
      necessarily incurred for the purposes of the proceedings,
      inter alia, accommodation, travel and subsistence
      expenses, and lawyers fees.
                                                                                Removal from the register of Case T-159/02 (1)
Pleas in law and main arguments
                                                                                (2004/C 7/81)
The applicant made a request for assistance to the Commission
seeking the opening of an investigation and payment of                                      (Language of the Case: English)
compensation following psychological harassment to which
he was allegedly subjected in Eurostat.
                                                                          By order of 15 September 2003 the President of the Fifth
In support of his application, the applicant alleges a manifest           Chamber of the Court of First Instance of the European
error of assessment in the decision rejecting his request, a              Communities ordered the removal from the register of Case
breach of the principle of legitimate expectations and of the             T-159/02: Masdar (U.K.) Ltd v Commission of the European
duty to have regard for the welfare of officials and, finally, a          Communities.
breach of the principle of equal treatment and the right to
reasonable career expectations.                                           (1) OJ C 202 of 24.08.2002.
        Removal from the register of Case T-68/02 (1)
                                                                                Removal from the register of Case T-162/03 (1)
                         (2004/C 7/79)
                                                                                (2004/C 7/82)
                  (Language of the Case: English)
                                                                                (Language of the Case: French)
By order of 15 September 2003 the President of the Fifth
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case                 By order of 30 September 2003 the President of the Fourth
T-68/02: Masdar (U.K.) Ltd v Commission of the European                   Chamber of the Court of First Instance of the European
Communities.                                                              Communities ordered the removal from the register of Case
                                                                          T-162/03: Pascal Millot v Commission of the European
                                                                          Communities.
(1) OJ C 131 of 1.06.2002.
                                                                          (1) OJ C 171 of 19.07.2003.


title: Case C-84/04: Action brought on 20 February 2004 by the Commission of the European Communities against the Portuguese Republic

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/26

         Action brought on 20 February 2004 by the Commission of the European Communities against the Portuguese Republic
   (Case C-84/04)
   (2004/C 94/56)
   An action against the Portuguese Republic was brought before the Court of Justice of the European Communities on 20 February 2004 by the Commission of the European Communities, represented by A.M. Alves Vieira, acting as Agent, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               declare that, by permitting IFADAP to introduce, and by allowing to remain in force, a procedure for granting financial assistance from Community Structural Funds, which includes substantive requirements involving the payment of levies which are neither voluntary nor optional and which do not constitute remuneration for services rendered but rather serve to finance missions for which the Portuguese State is, of necessity, responsible by virtue of, inter alia, Community law, the Portuguese Government has failed to fulfil its obligations under Regulation (EEC) No 4253/88 (1) and Article 10 EC;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The Portuguese authorities impose an obligation on persons benefiting from the European Agricultural Guidance and Guarantee Fund (EAGGF), Guidance Section, to pay the expenses relating to public-service duties for which the Member States are responsible in the case of ‘indirect’ management of financial instruments, namely management which entails the Member State concerned selecting projects, paying eligible expenditure and declaring it to the Commission.
   However, Article 21(5) of Regulation (EEC) No 4253/88, as amended, clearly imposes on the Member State concerned an obligation to ensure that the beneficiaries receive the advances and payments and to refrain from making any deduction or retention from payment made to beneficiaries. The terms ‘retention’ and ‘deduction’ must be interpreted broadly in the light of their effect, which is the decisive factor.
   The links and the relationship of subordinacy between the draft private-law contract for a supply of services signed by the beneficiaries and IFADAP (Instituto do Financiamento e Apoio ao Desenvolvimento da Agricultura e Pescas) and the form annexed to the ‘contract for the grant of aid’, pursuant to which the beneficiary authorises sums to be debited from its account and paid to IFADAP in respect of the service provided by the latter in the context of the aid contract, leave little room for doubt that the beneficiary has no freedom of choice, particularly if account is taken of the fact that the beneficiary knows that IFADAP is the body which oversees the investment project and is responsible for checking that it is properly implemented.

      (1)  Council Regulation (EEC) No 4253/88 of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments (OJ 1988 L 374, p.1).


title: Judgment of the Court (Sixth Chamber) of 20 September 2001 in Case C-263/98: Kingdom of Belgium v Commission of the European Communities (EAGGF — Clearance of accounts — 1994 — Cereals, beef and veal)

text:
C 3/2                    EN                       Official Journal of the European Communities                                           5.1.2002
     concerned, which significantly adds to their social protection,                          JUDGMENT OF THE COURT
     and (ii) the application of those rules by the first Member State
     is proportionate to the public interest objective pursued.
                                                                                (Sixth Chamber)
2.   (a)    Articles 59 and 60 of the Treaty do not preclude the
            extension of the rules of a Member State which provide                                 of 20 September 2001
            for a longer period of paid leave than that provided for by
            Council Directive 93/104/EC of 23 November 1993
            concerning certain aspects of the organisation of working        in Case C-263/98: Kingdom of Belgium v Commission of
            time to workers posted to that Member State by providers                          the European Communities (1)
            of services established in other Member States during the
            period of the posting.
                                                                             (EAGGF — Clearance of accounts — 1994 — Cereals, beef
                                                                                and veal)
     (b) Articles 59 and 60 of the Treaty do not preclude national
            rules from allowing businesses established in the Federal
            Republic of Germany to claim reimbursement of expendi-                                      (2002/C 3/02)
            ture on holiday pay and holiday allowances from the fund,
            whereas it does not provide for such a claim in the case of
            businesses established in other Member States, but instead                           (Language of the case: Dutch)
            provides for a direct claim by the posted workers against
            the fund, in so far as that is justified by objective
            differences between businesses established in the Federal
            Republic of Germany and those established in other               (Provisional translation; the definitive translation will be published
            Member States.                                                                      in the European Court Reports)
     (c)    It is for the national court to determine the type of
            information that the German authorities may reasonably
            require of providers of services established outside the         In Case C-263/98: Kingdom of Belgium (Agents: J. Devadder
            Federal Republic of Germany, having regard to the                and, subsequently, A. Snoecx, and H. Gilliams) v Commission
            principle of proportionality. For this purpose, the national     of the European Communities (Agent: H. van Vliet) —
            court should consider whether the objective differences          application for the partial annulment of Commission Decision
            between the position of businesses established in Germany        98/358/EC of 6 May 1998 on the clearance of the accounts
            and that of businesses established outside Germany               presented by the Member States in respect of the expenditure
            objectively require the additional information required of       for 1994 of the Guarantee Section of the European Agricultural
            the latter.                                                      Guidance and Guarantee Fund (EAGGF) (OJ 1998 L 163,
                                                                             p. 28), in so far as it disallows, in respect of the applicant,
                                                                             Community financing for the sum of BEF 382 208 436 by
                                                                             way of expenditure incurred for the advance payment of
                                                                             export refunds — the Court (Sixth Chamber), composed of:
3.   Articles 59 and 60 of the Treaty preclude the application of a          C. Gulmann, President of the Chamber, J.-P. Puissochet,
     Member State’s scheme for paid leave to all businesses                  R. Schintgen, F. Macken (Rapporteur) and J.N. Cunha Rodri-
     established in other Member States providing services to the            gues, Judges; S. Alber, Advocate General; H.A. Rühl, Principal
     construction industry in the first Member State where businesses        Administrator, for the Registrar, has given a judgment on
     established in the first Member State, only part of whose               20 September 2001, in which it:
     activities are carried out in that industry, are not all subject to
     that scheme in respect of their workers engaged in that industry.
                                                                             1.    Dismisses the application;
                                                                             2.    Orders the Kingdom of Belgium to pay the costs.
(1) OJ C 137 of 2.5.1998; OJ C 166 of 30.5.1998.
                                                                             (1) OJ C 278 of 5.9.1998.