title: Case C-253/99: Reference for a preliminary ruling by the Finanzgericht Bremen by order of 1 June 1999 in the case of Bacardi GmbH v Hauptzollamt Bremerhaven

text:
18.9.1999             EN                       Official Journal of the European Communities                                          C 265/1
                                                                       I
                                                                 (Information)
                                                    COURT OF JUSTICE
                                                             COURT OF JUSTICE
Appeal brought on 2 July 1999 by the French Republic                       decision for the same reasons as those relied on by the Court
against the judgment delivered on 22 April 1999 by the                     of First Instance in Lilly. It also refuses the assertion made by
Second Chamber of the Court of First Instance of the                       the Court of First Instance in paragraph 64 of the contested
European Communities in case T-112/97 (1) between Mon-                     judgment that in the absence of ‘anything in fact or law which
santo Company and the Commission of the European                           would permit a different conclusion, reference must be made
      Communities, supported by the French Republic                        to the grounds of its judgment in Lilly and the contested
                                                                           decision must, as a result, be annulled’.
                       (Case C-248/99 P)
                                                                           The French Government considers that the Court of First
                        (1999/C 265/01)                                    Instance had before it new elements of fact or law which were
                                                                           conducive to deciding the case differently from case T-120/96.
An appeal against the judgment delivered on 22 April 1999
by the Second Chamber of the Court of First Instance of the                (1) OJ C 199, 28.06.1997, p. 27.
European Communities in case T-112/97 between Monsanto
Company and the Commission of the European Communities,
supported by the French Republic, was brought before the
Court of Justice of the European Communities on 2 July 1999
by the French Republic, represented by Ronny Abraham,
Jean-François Dobelle, Kareen Rispal-Bellanger and Christina               Reference for a preliminary ruling by the Finanzgericht
Vasak, acting as agents, with an address for service in                    Bremen by order of 1 June 1999 in the case of Bacardi
Luxembourg at the French Embassy, 8, boulevard Joseph II.                              GmbH v Hauptzollamt Bremerhaven
The Appellant claims that the Court should:                                                         (Case C-253/99)
1. annul paragraph 1 of the operative part of the judgment                                         (1999/C 265/02)
     of the Court of First Instance dated 22 April in case
     T-112/97;                                                             Reference has been made to the Court of Justice of the
                                                                           European Communities by order of 1 June 1999 from the
2. grant the form of order sought by the defendant at first                Finanzgericht (Finance Court) Bremen, which was received at
     instance, namely dismissal on substantive grounds of                  the Court Registry on 7 July 1999, for a preliminary ruling in
     Monsanto’s application, and order the applicant to pay the            the case of Bacardi GmbH v Hauptzollamt Bremerhaven on
     costs.                                                                the following questions:
                                                                           1. Can import duties be repaid under Article 236 of the
Pleas in law and main arguments                                                Customs Code (1) in the case where the importer of
                                                                               Bourbon whiskey imported from the USA entered the
The Court of First Instance based its assessment of the                        Code Number 2208 30 82 in the customs declaration of
Monsanto action on the solution adopted in case T-120/96,                      10 September 1996, and only on 2 October 1996, on
Lilly v. Commission.                                                           submission of a certificate of authenticity corresponding
                                                                               to Annex 5 to the regulation implementing the Customs
The French Government disputes the Court of First Instance’s                   Code (2), applied for classification under Subheading 2208
statement that, in any event as far as it is concerned, the parties            30 11 of the Combined Nomenclature, which would result
considered that it was necessary to annul the Commission’s                     in application of a longer rate of customs duty?
 ---pagebreak--- C 265/2                 EN                    Official Journal of the European Communities                                      18.9.1999
2. If the answer to Question 1 is in the negative:                       II.   If the answer to one of the questions under I is in the
                                                                              negative:
     Can it be concluded that these circumstances constitute ‘a
                                                                              a) Are advances on maintenance payments under the
     special situation’ which — if the other legislative conditions
                                                                                Unterhaltsvorschußgesetz referred to in Question I(a)
     are satisfied — may lead to repayment of the import duties
                                                                                social advantages within the meaning of Article 7(2) of
     under Article 239 of the Customs Code in conjunction
                                                                                Regulation (EEC) No 1612/68 (4) of the Council of
     with Article 905(1) of the regulation implementing the
                                                                                15 October 1968 on freedom of movement for work-
     Customs Code?
                                                                                ers within the Community?
                                                                              b) Does the fact that the child has to be resident in Austria
(1) Council Regulation (EEC) No 2913/92, OJ L 302 of 19.10.1992,                   in order to be awarded advances on maintenance
    p. 1.                                                                          payments constitute a prohibited limiting provision
(2) Commission Regulation (EEC) No 2454/93, OJ L 253 of                            under the second indent of Article 3(1) of Regulation
    11.10.1993, p. 1.
                                                                                (EEC, No 1612/68 in the light of the right to freedom
                                                                                of movement for workers enshrined in Article 48 of
                                                                                the EC Treaty?
                                                                              c) Do the provisions of Regulation No 1612/68 give rise
                                                                                to an entitlement, in the person of the child of a
                                                                                worker, to the award of advances on maintenance
                                                                                payments?
Reference for a preliminary ruling by the Oberster                       ( 1) OJ L 149 of 5.7.1971, p. 2.
Gerichtshof by Order of that court of 23 June 1999 in the                ( 2) OJ L 230 of 22.8.1984, p. 6.
case relating to the minor Anna Humer represented by                     ( 3) OJ L 331 of 16.11.1989, p. 1.
           her mother Andrea Sturmbauer-Machand                          ( 4) OJ, English Special Edition 1968 (II), p. 475.
                          (Case C-255/99)
                         (1999/C 265/03)
                                                                         Reference for a preliminary ruling by the High Court
                                                                         of Justice (England & Wales), Queen’s Bench Division,
Reference has been made to the Court of Justice of the                   Divisional Court, by order of that court of 29 March
European Communities by order of the Oberster Gerichtshof,               1999, in the case of The Queen against Secretary of State
Vienna, of 23 June 1999, received at the Court Registry on               for the Home Department, ex parte: Julius Barkoci and
8 July 1999, for a preliminary ruling in the case relating to the                                     Marcel Malik
minor Anna Humer, represented by her mother Andrea
Sturmbauer-Machand, on the following question:                                                      (Case C-257/99)
                                                                                (1999/C 265/04)
I. a) Do advances on maintenance payments to the minor
          children of working persons, or unemployed persons             Reference has been made to the Court of Justice of the
          drawing unemployment benefit under Austrian legis-             European Communities by an order of the High Court of
          lation, which are payable in respect of children under         Justice (England & Wales), Queen’s Bench Division, Divisional
          the Austrian federal law on the grant of advances on           Court of 29 March 1999, which was received at the Court
          maintenance (Unterhaltsvorschußgesetz 1985 [Law on             Registry on 9 July 1999, for a preliminary ruling in the case of
          Advances on Maintenance Payments 1985], hereinafter            The Queen against Secretary of State for the Home Depart-
          UVG — current version in BGBl p. 451) constitute               ment, ex parte: Julius Barkoci and Marcel Malik, on the
          family benefits for the purposes of Article 4(1)(h) of         following questions:
          Council Regulation (EEC) No 1408/71 (1) of 14 June
          1971 on the application of social security schemes to
          employed persons, to self-employed persons and to              Direct effect and interpretation of the Agreement (1)
          members of their families moving within the Com-
          munity, as amended and updated by Regulation (EEC)
          No 2001/83 (2) of 2 June 1983 and amended by                   1. Does Article 45 of the Agreement have direct effect
          Council Regulation (EEC) No 3427/89 (3) of 30 Octo-                 within the national legal systems of Member States,
          ber 1989, and is Article 3 of the regulation, on equality           notwithstanding the provisions of Article 59 of the Agree-
          of treatment, therefore also applicable in such a case?             ment?
                                                                         2. If the answer to question 1 is ‘yes’, how is the proviso in
     b) Do Articles 73 and 74 of Regulation 1408/71 entitle a                 the penultimate sentence of Article 59(1) of the Agreement
          child of a marriage who is resident with his mother in              (and in particular the words ‘benefits accruing to any Party
          a Member State other than Austria and whose father is               under the terms of a specific provision of this Agreement’)
          resident in Austria and is working there, or unem-                  to be interpreted; and, more generally, to what extent may
          ployed and drawing unemployment benefit under                       a Member State apply its laws and regulations regarding
          Austrian legislation, to the award of an advance on                 entry, stay and establishment of natural persons to persons
          maintenance payments under the Unterhaltsvorschuß-                  invoking Article 45 of the Agreement, without violating
          gesetz referred to in paragraph (a) above?                          this proviso?


title: Judgment of the Court (Fifth Chamber) of 17 June 1999 in Case C-260/97 (reference for a preliminary ruling from the Bundesgerichtshof): Unibank A/S v Flemming G. Christensen (Brussels Convention - Interpretation of Article 50 - Meaning of 'document which has been formally drawn up or registered as an authentic instrument and is enforceable in one Contracting State' - Document drawn up without any involvement of a public officer - Articles 32 and 36)

text:
7.8.1999                  EN                     Official Journal of the European Communities                                            C 226/7
— either vehicles in the 15-16 CV tax band cannot be regarded as            (OJ 1982 L 388, p. 1) — the Court (Fifth Chamber), composed
     similar, for the purposes of that provision, to vehicles in the tax    of J.-P. Puissochet, President of the Chamber, J.C. Moitinho de
     bands above 18 CV and, more particularly, to vehicles in tax           Almeida, D.A.O. Edward (Rapporteur), L. Sevón and M. Wa-
     bands 23 CV and above, such as that of the plaintiff in the main       thelet, Judges; A. La Pergola, Advocate General; R. Grass,
     proceedings,                                                           Registrar, has given a judgment on 17 June 1999, in which it
                                                                            has ruled:
— or some of the vehicles in the 15-16 CV tax band may be
     regarded as products similar to vehicles in tax bands above 18
     CV and, more particularly, those in tax bands 23 CV and above,         An acknowledgement of indebtedness enforceable under the law of
     but, within the range of imported vehicles in the 15-16 CV             the State of origin whose authenticity has not been established by a
     band, consumers have a choice such that the increase in the            public authority or other authority empowered for that purpose by
     progression co-efficient between the 15-16 CU band and the             that State does not constitute an authentic instrument within the
     bands above 18 CV and, more particularly, tax band 23 CV               meaning of Article 50 of the Convention of 27 September 1968 on
     and above, is not of a nature such as to favour the sale of vehicles   jurisdiction and the enforcement of judgments in civil and commercial
     of domestic manufacture.                                               matters, as amended by the Convention of 9 October 1978 on the
                                                                            accession of the Kingdom of Denmark, Ireland and the United
                                                                            Kingdom of Great Britain and Northern Ireland and by the
(1) OJ C 41 of 7.2.1998.                                                    Convention of 25 October 1982 on the accession of the Hellenic
                                                                            Republic.
                                                                            (1) OJ C 295 of 27.9.1997.
                   JUDGMENT OF THE COURT
                            (Fifth Chamber)
                            of 17 June 1999                                                   JUDGMENT OF THE COURT
in Case C-260/97 (reference for a preliminary ruling from                                              (Fifth Chamber)
the Bundesgerichtshof): Unibank A/S v Flemming G.
                             Christensen (1)                                                           of 17 June 1999
(Brussels Convention — Interpretation of Article 50 —
Meaning of ‘document which has been formally drawn up or                    in Case C-295/97 (reference for a preliminary ruling
registered as an authentic instrument and is enforceable in                 from the Tribunale di Genova): Industrie Aeronautiche e
one Contracting State’ — Document drawn up without any                      Meccaniche Rinaldo Piaggio SpA v International Factors
    involvement of a public officer — Articles 32 and 36)                   Italia SpA (Ifitalia), Dornier Luftfahrt GmbH, Ministero
                                                                                della Difesa (1)
                            (1999/C 226/11)
                                                                            (State aid — Article 92 of the EC Treaty (now, after
                                                                            amendment, Article 87 EC) — New aid — Prior notification)
                    (Language of the case: German)
                                                                                (1999/C 226/12)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                              (Language of the case: Italian)
In Case C-260/97: reference to the Court under the Protocol
of 3 June 1971 on the interpretation by the Court of Justice of             (Provisional translation; the definitive translation will be published
the Convention of 27 September 1968 on jurisdiction and the                                     in the European Court Reports)
enforcement of judgments in civil and commercial masters, by
the Bundesgerichtshof (Germany), for a preliminary ruling in
the proceedings pending before that court between Unibank                   In Case C-295/97: reference to the Court under Article 234
A/S and Flemming G. Christensen on the interpretation of                    EC (ex Article 177) by the Tribunale di Genova (Italy) for a
Articles 32, 36 and 50 of the abovementioned Convention of                  preliminary ruling in the proceedings pending before that
27 September 1968 (OJ 1972 L 299, p. 32), as amended by                     court between Industrie Aeronautiche e Meccaniche Rinaldo
the Convention of 9 October 1978 on the accession of the                    Piaggio SpA and International Factors Italia SpA (Ifitalia),
Kingdom of Denmark, Ireland and the United Kingdom of                       Dornier Luftfahrt GmbH, Ministero della Difesa — on the
Great Britain and Northern Ireland (OJ 1978 L 304, p. 1 and                 interpretation of Article 92 of the EC Treaty (now, after
— amended text — p. 77) and by the Convention of                            amendment, Article 87 EC) — the Court (Fifth Chamber),
25 October 1982 on the accession of the Hellenic Republic                   composed of J.-P. Puissochet, President of the Chamber,


title: Order of the President of the Court of first instance 19 December 2001 in Joined Cases T-195/01 R and T-207/01 R, Government of Gibraltar v Commission of the European Communities (Proceedings for interim relief — State aid — Decision to initiate a formal investigation procedure — Admissibility — Prima facie case — Urgency — None — Balancing of interests)

text:
C 118/24               EN                     Official Journal of the European Communities                                         18.5.2002
Article 215 of the EC Treaty (now Article 235 EC and the                 1.    Annuls the decision of the selection board in competition COM/
second paragraph of Article 288 EC) for damage suffered by                     A/12/98 in so far as it concerns the mark awarded to the
the applicant as a result of his having been prevented from                    applicant for the oral test;
marketing milk by virtue of Council Regulation (EEC)
No 857/84 of 31 March 1984 adopting general rules for the
application of the levy referred to in Article 5c of Regulation          2.    Orders the Commission to pay the costs.
(EEC) No 804/68 in the milk and milk products sector, (OJ
1984 L 90, p. 13), as supplemented by Commission Regulation
(EEC) No 1371/84 of 16 May 1984 laying down detailed rules
for the application of the additional levy referred to in                (1) OJ C 273 of 23.9.2000.
Article 5c of Regulation (EEC) No 804/68 (OJ 1984 L 132,
p. 11), Court of First Instance (Fourth Chamber), composed of:
P. Mengozzi, President, V. Tilli and R. M. Moura Ramos,
Judges; D. Christensen, Administrator, for the Registrar, has
given a judgment on 7 February 2002, in which it:
1.    Dismisses the application;
2.    Orders the applicant to pay the costs.
                                                                         ORDER OF THE PRESIDENT OF THE COURT OF FIRST
(1) OJ C 304 of 29.10.1994.                                                                           INSTANCE
                                                                                19 December 2001
                                                                         in Joined Cases T-195/01 R and T-207/01 R, Government
    JUDGMENT OF THE COURT OF FIRST INSTANCE                              of Gibraltar v Commission of the European Communities
                       of 7 February 2002
                                                                         (Proceedings for interim relief — State aid — Decision to
                                                                         initiate a formal investigation procedure — Admissibility —
in Case T-193/00: Bernard Felix v Commission of the                      Prima facie case — Urgency — None — Balancing of
                   European Communities (1)                                                             interests)
(Officials — Open competition — Oral test — Non-
inclusion in the reserve list — Consistency of the composition                                     (2002/C 118/39)
      of the selection board — Knowledge of languages)
                         (2002/C 118/38)                                                    (Language of the Case: English)
                   (Language of the case: French)
                                                                         In Joined Cases T-195/01 R and T-207/01 R, Government of
In Case T-193/00: Bernard Felix, an official of the Commission           Gibraltar, represented by A. Sutton, M. Llamas, Barristers, and
of the European Communities, residing at Arlon (Belgium),                W. Schuster, lawyer, with an address for service in Luxem-
represented by J.-N. Louis and V. Peere, lawyers, with an                bourg, against Commission of the European Communities,
address for service in Luxembourg, v Commission of the                   (Agents: V. Di Bucci and R. Lyal): Application for interim
European Communities (Agent: J. Currall) — application for               measures in respect of the decisions of the Commission of
annulment of the decision of the selection board in compe-               11 July 2001, notified to the Government of the United
tition COM/A/12/98 awarding the applicant a lower mark                   Kingdom by letters SG(2001) D/289755 and SG(2001) D/
than the minimum required for the oral test and excluding                289757, to initiate the procedure provided for by
him from the reserve list — the Court of First Instance (Fifth           Article 88(2) EC in respect of alleged State aid granted under
Chamber), composed of: J.D. Cooke, President, and R. Gracı́a-            Gibraltarian legislation to exempt and qualifying companies
Valdecasas and P. Lindh, Judges; J. Plingers, Administrator, for         respectively, the President of the Court of First Instance made
the Registrar, has given a judgment on 7 February 2002, in               the following order on 19 December 2001, the operative part
which it:                                                                of which is as follows:
 ---pagebreak--- 18.5.2002               EN                      Official Journal of the European Communities                                     C 118/25
1.    The applications for interim measures are dismissed.                 —    the aid in question must be regarded as having been in
                                                                                existence ever since 1928. In adopting the contested
2.    The costs are reserved.                                                   decision, the Commission omitted the entire procedure
                                                                                provided for by the first paragraph of Article 88;
                                                                           —    infringement of the Community rules concerning
                                                                                improvements in the efficiency of agricultural structure
                                                                                and of the ‘Community guidelines on State aid for
                                                                                rescuing and restructuring firms in difficulty’.
Action brought on 25 January 2002 by Giuseppe Atzeni
and Others against the Commission of the European
                            Communities                                    The applicants also plead failure to comply with the obligation
                                                                           to provide a statement of reasons.
                           (Case T-21/02)
                                                                           (1) OJ C 56 of 2.3.2002, p. 20.
                          (2002/C 118/40)
                    (Language of the case: Italian)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                 Action brought on 7 February 2002 by Michel Sautelet
European Communities on 25 January 2002 by the applicants                    against the Commission of the European Communities
specified above, represented by Giovanni Dore and Fabio
Ciulli, lawyers.
                                                                                (Case T-25/02)
The applicants claim that the Court should:
                                                                                (2002/C 118/41)
—     pursuant to Article 230 of the Treaty, declare unlawful,
      and consequently annul in its entirety, Commission                                      (Language of the case: French)
      Decision 612/97, alternatively annul the same in so far
      as it provides for the recovery of the aid granted to the
      applicants by the Italian State, and order the Commission
      to pay the costs.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 7 February 2002 by Michel
                                                                           Sautelet, residing at Kirchberg (Grand Duchy of Luxembourg),
Pleas in law and main arguments
                                                                           represented by Gilles Bounéou, lawyer, with an address for
                                                                           service in Luxembourg.
This action is directed against the same decision as that
contested in Case T-4/02 Arca Delio eredi and Others v
Commission (1)                                                             The applicant claims that the Court should:
                                                                           —    annul the express decision No 39090 of 6 November
In support of their claims, the applicants plead:                               2001 fixing the compensation for the non-material
                                                                                damage suffered by the applicant in the sum of
—     lack of competence on the part of the defendant,                          1 500euros;
      inasmuch as the competition rules are not in principle
      applicable in the agriculture sector. As regards the
      provisions of Regulation No 26/62, the applicants main-              —    award the applicant the sum of 12 394,68 euros (rep-
      tain that, in the present case, no aid was granted, either                resenting the sum of LUF 500 000) by way of compen-
      for production or for trade in the agricultural sector;                   sation for the non-material damage suffered as a result of
      instead, what was intended was merely the re-establish-                   the lateness in drawing up his staff report for the period
      ment of the necessary liquidity for agricultural undertak-                from 1 July 1997 to 30 June 1999;
      ings facing objective difficulties, as expressly identified by
      the Region of Sardinia. Moreover, that regulation provides           —    annul the express decision No 44024 of 15 November
      that the rules concerning aid are applicable only in                      2001 declaring inadmissible complaint No 497/01 of
      relation to the matters covered by Article 88(1) and the                  31 October 2001, registered by the General Secretariat of
      first sentence of Article 88(3);                                          the Commission on 5 November 2001;


title: Case C-467/99: Action brought on 3 December 1999 by the Commission of the European Communities against the Hellenic Republic

text:
C 47/22               EN                    Official Journal of the European Communities                                     19.2.2000
4. in the event that it should dismiss the claims set out above,       — The appellant claims that the Court of First Instance failed
    set aside the contested judgment to the extent that it                 to take a decision on the second supplementary ground of
    upholds the decision adopted by the Commission in File                 annulment of the Commission decision contested in
    880412 P3, considering ineligible the entire amount                    Case T-182/96 alleging infringement of the legislation
    requested under sub-headings 14.1.4, 14.2.6, 14.2.7,                   applicable to the ESF (no margin of discretion), put forward
    14.3.1(b) and (c), 14.3.3 and 14.3.5 relating to the ‘Pirites          by the appellant in its reply in that case.
    Alentejanas’ project, sub-headings 14.3.11, 14.3.8 and
    14.9 relating to ‘Tintas Robbialac’ project and sub-heading        — The appellant claims that the Court of First Instance
    14.3.9 relating to the Sapec project, in respect of which              misapplied Article 190 of the EC Treaty (now Article 253
    annulment is sought on the following grounds:                          EC) in respect of sub-headings 14.1.4, 14.2.6, 14.2.7,
                                                                           14.3.1(b) and (c), 14.3.3 and 14.3.5 relating to the ‘Pirites
    — the material inaccuracy of the findings of fact made by              Alentejanas’ project, sub-headings 14.3.11, 14.3.8 and
         the Court of First Instance;                                      14.9 relating to ‘Tintas Robbialac’ project and sub-heading
                                                                           14.3.9 relating to the Sapec project, inasmuch as it based
                                                                           itself on matters of fact which are materially wrong or
    — error in law arising out of inconsistent reasoning;                  inaccurate.
5. accordingly, on those grounds, annul Commission                     — The appellant claims that the Court of First Instance
    Decision C(96) 1184 of 14 August 1996 in so far as it                  committed an error with regard to the existence of abuse
    considers ineligible as a whole, the amounts requested                 of rights and breach of the rights of the defence, of the
    under sub-headings 14.1.4, 14.2.6, 14.2.7, 14.3.1(b) and               principles of good faith, of the protection of legitimate
    (c), 14.3.3 and 14.3.5 relating to the ‘Pirites Alentejanas’           expectations and of acquired rights, inasmuch as it based
    project, sub-headings 14.3.11, 14.3.8 and 14.9 relating to             itself on matters of fact which are materially wrong or
    ‘Tintas Robbialac’ project and sub-heading 14.3.9 relating             inaccurate.
    to the Sapec project;
                                                                       — The appellant submits that the incorrect findings of fact
                                                                           made by the Court of First Instance led it to commit an
6. set aside the third paragraph of the operative part of the
                                                                           error in law in the present case by declaring unfounded
    contested judgment inasmuch as it orders PARTEX to bear
                                                                           the claim as to misuse of powers in the decision contested
    its own costs in Case T-182/96;
                                                                           in Case T-182/96.
7. order the Commission to pay the costs;
                                                                       (1) OJ 1997 C 26, p. 9.
8. uphold as well founded the application for legal aid and,
    accordingly, grant the appellant legal aid in the present
    case.
Pleas and main arguments
                                                                       Action brought on 3 December 1999 by the Commission
— The appellant claims that the Court of First Instance                of the European Communities against the Hellenic Repub-
    committed an error in law by infringing the legislation                                            lic
    applicable to the ESF by finding that in a case such as the
    present case, where a Member State has already certified
    the accuracy of the facts and accounts of the final claim                                  (Case C-467/99)
    for payment, that State may yet alter its assessment of the
    claim in question where it finds irregularities which had
    not become apparent before.                                                                 (2000/C 47/36)
— The appellant claims that the Court of First Instance                An action against the Hellenic Republic was brought before the
    committed an error in law by declaring inadmissible the            Court of Justice of the European Communities on 3 December
    supplementary ground put forward by PARTEX in its reply            1999 by the Commission of the European Communities,
    in Case T-182/96, claiming breach of the rules on the              represented by Maria Kondou-Durande, of its Legal Service,
    sharing of competences between Member States and the               with an address for service in Luxembourg at the office of
    Commission.                                                        Carlos Gómez de la Cruz, of its legal Service, Wagner Centre,
                                                                       Kirchberg.
— The appellant claims that the Court of First Instance
    committed an error in law contrary to the legislation              The Commission claims that the Court should:
    applicable to the ESF by finding that the rules on the
    sharing of competences between Member States and the               — declare that, by not adopting the laws, regulations and
    Commission had not been infringed.                                     administrative provisions necessary to transpose fully
 ---pagebreak--- 19.2.2000               EN                  Official Journal of the European Communities                                        C 47/23
    Article 7 of Council Directive 90/314/EEC of 3 June 1990           Pleas in law and main arguments
    on package travel, package holidays and package tours (1)
    so far as concerns passenger shipping companies, the               Under Article 189 of the EC Treaty (now Article 249 EC), a
    Hellenic Republic has failed to fulfil its obligations under       directive is to be binding, as to the result to be achieved, upon
    that directive;                                                    each Member State to which it is addressed. A Member State
                                                                       must adopt all the provisions necessary to ensure the effective
— order the Hellenic Republic to pay the costs.                        application of directives, in accordance with the objectives
                                                                       pursed by them, and may not plead provisions, practices or
                                                                       circumstances existing in its internal legal system in order to
Pleas in law and main arguments                                        justify a failure to comply with its obligations or time-limits
                                                                       under those directives.
The Greek authorities announced that they would amend
Article 7 of the Presidential Decree so that the obligation to         It is undisputed that the Italian Republic was to provide the
insure laid down therein would also cover passenger shipping           Commission with the information required under Article 8(3)
companies.                                                             of Directive 91/689/EEC in the manner prescribed by Decision
                                                                       96/302/EC.
The Commission considers that it is the task of the Greek              It has failed to do so, nor does the Commission consider itself
authorities to undertake in good time the procedures necessary         to have properly received the information following the
in order for the provisions of the directive at issue to be            reasoned opinion.
transposed fully into Greek law.
                                                                       The Commission therefore finds that the Italian Republic has
The Commission states that up until now the Hellenic Republic          failed to fulfil its obligations under Community law.
has failed to adopt the appropriate measures for the full
incorporation into Greek law of Article 7 of Directive
90/314/EEC so far as concerns shipping companies.                      (1) Council Directive 91/689/EEC of 12 December 1991 on hazard-
                                                                           ous waste. OJ 1991 L 377, p. 20.
                                                                       (2) Commission Decision 96/302/EC of 17 April 1996.
(1) OJ No L 158, 23.6.1990, p. 59.
                                                                       Reference for a preliminary ruling from the Landesgericht
                                                                       für Zivilrechtssachen Wien, by order of that court of
                                                                       9 September 1999 in the case of CLEAN CAR Autoservice
Action brought on 7 December 1999 by the Commission                    GmbH against (1) the City of Vienna and (2) the Republic
of the European Communities against the Italian Republic                                             of Austria
                         (Case C-469/99)                                                          (Case C-472/99)
                          (2000/C 47/37)                                                           (2000/C 47/38)
                                                                       Reference has been made to the Court of Justice of the
An action against the Italian Republic was brought before the
                                                                       European Communities by order of the Landesgericht für
Court of Justice of the European Communities on 7 December
                                                                       Zivilrechtssachen Wien (Regional Civil Court, Vienna), of
1999 by the Commission of the European Communities,
                                                                       9 September 1999, received at the Court Registry on
represented by Lena Ström, of its Legal Service, and Giacinto
                                                                       9 December 1999, for a preliminary ruling in the case of
Bisogni, appeal court judge on secondment to the Legal
                                                                       CLEAN CAR Autoservice GmbH against (1) the City of Vienna
Service, acting as Agents, with an address for service in
                                                                       and (2) the Republic of Austria, on the following question:
Luxembourg at the office of Carlos Gómez de la Cruz, of its
Legal Service, Wagner Centre, Kirchberg.
                                                                       Where, as in the present case, a Member State (Austria) has
                                                                       not prescribed any national rules enabling national courts to
The applicant claims that the Court should:                            decide and to award or, as the case may be, to apportion, in
                                                                       relation to the parties to the proceedings, the costs of a
— Declare that, by failing to provide the Commission with              reference for a preliminary ruling, how is Article 104(5) of the
    the information required under Article 8(3) of Council             Rules of Procedure of the Court of Justice of the European
    Directive 91/689/EEC (1), in the format established in             Communities (1) to be interpreted?
    Decision 96/302/EC (2), the Italian Republic has failed to
    fulfil its obligations under Council Directive 91/689/EEC
    and the EC Treaty;                                                 (1) OJ C 65 of 6 March 1999, p. 30.
— Order the Italian Republic to pay the costs.


title: Case C-221/03: Action brought on 22 May 2003 by the Commission of the European Communities against the Kingdom of Belgium

text:
C 171/16              EN                          Official Journal of the European Union                                         19.7.2003
As regards the second proceedings                                               —     as regards the Walloon Region, by failing to adopt
                                                                                the laws, regulations or administrative provisions
                                                                                and to take the measures necessary fully to transpose
5.   So long as a national of a Member State does not himself
                                                                                and implement Articles 3(1) and (2) and 5 of
     invoke the right of residence as the recipient of services
                                                                                Directive 91/676/EEC;
     vis-à-vis the Member State in whose territory he is
     residing, does Community law as it stands at present
     preclude that Member State from not regarding that
                                                                          —     order the Kingdom of Belgium to pay the costs.
     person as a national protected by a right of residence
     under Community law?
6.   Is the term ‘recipient of services’ in the context of freedom
     to provide services to be construed as meaning that, even
     where a person stays in another Member State for a long              Pleas in law and main arguments
     period, possibly longer than six months, is arrested there
     for an offence, is unable to give a fixed abode or residence
     and, furthermore, has no money or luggage, residence in
     another Member State itself provides sufficient grounds              Directive 91/676/EEC lays down a progressive procedure
     for having to assume that tourist and other services                 which the Member State are required to follow in order to
     associated with short-term residence are received such as,           reduce and prevent water pollution caused or induced by
     for example, accommodation and the consumption of                    nitrates from agricultural sources. To that end, they are to
     meals?                                                               establish which groundwaters, surface freshwaters and coastal
                                                                          waters in their territory are affected by pollution by nitrates
                                                                          from agricultural sources or which could be so affected
                                                                          (Article 3(1)). Once those waters have been defined, Member
                                                                          State must designate ‘vulnerable zones’ (Article 3(2)). They
                                                                          must then establish a code or codes of good agricultural
                                                                          practice, to be implemented by farmers on a voluntary basis
                                                                          (Article 4). Finally, Member States are to establish action
                                                                          programmes in respect of all vulnerable zones, which must
                                                                          consist of several measures laid down in the directive
Action brought on 22 May 2003 by the Commission                           (Article 5). The directive provides that Member States are
of the European Communities against the Kingdom of                        to submit a report to the Commission every four years
                             Belgium                                      (Article 10).
                        (Case C-221/03)
                                                                          According to the Commission, Belgium appears to consider
                                                                          that the transposition and implementation of the directive in
                        (2003/C 171/22)
                                                                          Belgian law come under the competence of the regions.
                                                                          According to the Belgian authorities, the federal authority is
                                                                          competent only to designate the coastal and marine waters
                                                                          referred to in Article 3(1) and in paragraph A(3) of Annex I to
                                                                          the directive. That argument is not relevant in Community
An action against the Kingdom of Belgium was brought before
the Court of Justice of the European Communities on 22 May                law. It is for the competent authorities of each Member State
                                                                          to ensure the full transposition of the directive. Moreover, as
2003 by the Commission of the European Communities,
                                                                          regards the federal authority, the Commission does not have
represented by G. Valero Jordana, acting as Agent, assisted by
M. van der Woode and T. Cellingsworth, lawyers, with an                   knowledge of any measure designating marine or coastal
                                                                          waters. As regards the legislation of the Flemish Region and
address for service in Luxembourg.
                                                                          the Walloon Region relating to transposition of the directive,
                                                                          the Commission notes that:
The Commission of the European Communities claims that
the Court should:                                                         —     the Flemish Region has not adopted any provision which
                                                                                designates waters affected by pollution or which could be
                                                                                so affected, in breach of Article 3(1) of the directive. As
—    declare that the Kingdom of Belgium has not complied
                                                                                for vulnerable zones, it has not taken account of the
     with its obligations under Directive 91/676/EEC (1):
                                                                                procedure and criteria laid down in Article 3 for their
                                                                                designation in its territory. Moreover, the Flemish Code
     —     as regards the Flemish Region, by failing to adopt                   of Good Agricultural Practice does not satisfy the require-
           the laws, regulations or administrative provisions                   ments of Article 4 and of Annex II to the directive,
           and to take the measures necessary fully to transpose                nor does the Flemish action programme satisfy the
           and implement Articles 3(1) and (2), 4, 5 and 10 of                  requirements of Article 5 and of Annex III to the directive,
           Directive 91/676/EEC;                                                since it does not apply to all the vulnerable zones
 ---pagebreak--- 19.7.2003                EN                          Official Journal of the European Union                                            C 171/17
       designated by the Flemish Region and is incomplete.                   Produttori Olivicoli Laziali (APOL) and Associazione Italiana
       Finally, the report on the Flemish Region does not                    Produttori Olivicoli (AIPO), represented by Emilio Cappelli,
       reproduce all the documents and information required by               Paolo De Caterini and Andrea Bandini, of the Rome Bar.
       Article 10 in conjunction with Annex V to the directive.
                                                                             The appellants claim that the Court should:
—      The Walloon Region has infringed Articles 10(2) and 12
       of the directive in that the procedure of defining waters             —     set aside the judgment of Court of First Instance (Second
       and subsequently designating vulnerable zones covers                        Chamber) of 6 March 2003 in Joined Cases T-61/00 and
       only a part of its territory and was finished belatedly and                 T-62/00.
       the designation of vulnerable zones remains insufficient
       to date. In addition, the competent Walloon authority did
       not take into account the pollution of coastal and marine
       waters when identifying waters affected by pollution and              Pleas in law and main arguments
       designating vulnerable zones, in breach of Article 3 of
       the directive. It also infringed Article 5 of the directive,
                                                                             The appellants allege that the judgment of the Court of First
       since after it designated two vulnerable zones in its
                                                                             Instance is vitiated on the following grounds:
       territory the Walloon Region should have established
       action programmes within the prescribed period, whereas
                                                                             —     erroneous interpretation and misapplication of the prin-
       those programmes have not yet been adopted to date.
                                                                                ciple of force majeure;
                                                                             —     erroneous interpretation and misapplication of the prin-
( 1) Council Directive 91/676/EEC of 12 December 1991 concerning                   ciple of proportionality and of Articles 9(1) and 17(2)(b)
     the protection of waters against pollution caused by nitrates from            of Regulation No 355/77; inadequate reasoning inasmuch
     agricultural sources (OJ L 375 of 21.12.1991, p. 1).                          as it was manifestly illogical and contradictory;
                                                                             —     breach of the rights of the rights of the defence for failure
                                                                                to fulfil the obligation to carry out an inquiry;
                                                                             —     failure to rule on whether a measure of inquiry was
                                                                                appropriate.
Appeal brought on 21 May 2003 by Associazione Produt-
tori Olivicoli Laziali (APOL) and Associazione Italiana                      Action brought on 22 May 2003 by the Commission of
Produttori Olivicoli (AIPO) against the judgment deliver-                     the European Communities against the French Republic
ed on 6 March 2003 by the First Chamber of the Court of
First Instance of the European Communities in Joined                                                   (Case C-225/03)
Cases T-61/00 and T-62/00 Associazione Produttori Oli-
vicoli Laziali (APOL) and Associazione Italiana Produttori
                  Olivicoli (AIPO) v Commission                                                        (2003/C 171/24)
                          (Case C-222/03 P)                                  An action against the French Republic was brought before the
                                                                             Court of Justice of the European Communities on 22 May
                                                                             2003 by the Commission of the European Communities,
                                                                             represented by L. Ström and F. Simonetti, acting as Agents,
                           (2003/C 171/23)                                   with an address for service in Luxembourg.
                                                                             The Commission of the European Communities claims that
                                                                             the Court should:
An appeal against the judgment delivered on 6 March 2003                     1.    declare that by failing to adopt all the laws, regulations
by the First Chamber of the Court of First Instance of the                         and administrative provisions necessary to comply with
European Communities in Joined Cases T-61/00 and T-62/                             Directive 98/79/EC of the European Parliament and of
00 Associazione Produttori Olivicoli Laziali (APOL) and                            the Council of 27 October 1998 on in vitro diagnostic
Associazione Italiana Produttori Olivicoli (AIPO) v Com-                           medical devices ( 1) or, in any event, by failing to notify
mission was brought before the Court of Justice of the                             the Commission of such provisions, the French Republic
European Communities on 21 May 2003 by Associazione                                has failed to fulfil its obligations under that directive;


title: ORDER OF THE COURT OF FIRST INSTANCE of 17 April 1996 in Case T-2/93 (92): Société anonyme à participation ouvrière Compagnie nationale Air France v. Commission of the European Communities (Competition - Taxation of costs)

text:
No C 210/ 16            EN                  Official Journal of the European Communities                                     20 . 7 . 96
Article 5 ( c ) of Regulation ( EEC ) No 804/68 in the milk and            ORDER OF THE COURT OF FIRST INSTANCE
milk products sector ( OJ No L 90 , 1984 , p . 13 ) — the                                      of 17 April 1996
President of the First Chamber (Extended Composition ) of
the Court of First Instance made an order on 27 March                  in Case T-3/93 ( 92 ): Société anonyme à participation
1996 , the operative part of which is as follows :                     ouvrière Compagnie nationale Air France v. Commission of
                                                                                the European Communities ( J )
1 , the name of J. F. van Rooy is removed from the list of                          (Competition — Taxation of costs)
      applicants in Case T-533/93;                                                               ( 96/C 210/41 )
2 , the parties are ordered to bear their own costs.                                  (Language of the case: French)
(') OJ No C 334, 9 . 12 . 1993 .                                       In Case T-3/93 ( 92 ): Société anonyme à participation
                                                                       ouvrière Compagnie nationale Air France, established in
                                                                       Paris, represented by Eduard Marissens, of the Brussels Bar,
                                                                       with an address for service in Luxembourg at the Chambers
                                                                       of Lucy Dupong, 14a rue des Bains, v . Commission of the
                                                                       European Communities ( Agents: Francisco Enrique
      ORDER OF THE COURT OF FIRST INSTANCE                             Gonzalez-Diaz and Géraud de Bergues ), supported by
                                                                       United Kingdom of Great Britain and Northern Ireland
                         of 17 April 1996                              ( Agents : John D. Colahan and Christopher Vajda ), with an
in Case T-2/93 ( 92 ): Société anonyme à participation                 address for service in Luxembourg at the British Embassy,
ouvrière Compagnie nationale Air France v. Commission of               14 boulevard Roosevelt, and British Airways pic,
                  the European Communities ( 1 )                       established at Hounslow ( United Kingdom ), represented by
               (Competition — Taxation of costs)                       Richard Fowler, QC, of the Bar of England and Wales , and
                                                                       William Allan and James E. Flynn, Solicitors, with an
                            ( 96/C 210/40 )
                                                                       address for service in Luxembourg at the Chambers of
                                                                       Loesch and Wolter, 11 rue Goethe — application for
                  (Language of the case: French)                       taxation of the costs payable by the applicant to the
                                                                       intervener British Airways pic pursuant to the judgment of
In Case T-2/93 ( 92 ): Société anonyme à participation                 the Court of First Instance of 24 May 1994 in Case T-3/93
ouvrière Compagnie nationale Air France, established in                Air France v. Commission [ 1994 ] ECR 11-121 — the Court
Paris, represented by Eduard Marissens, of the Brussels Bar,           of First Instance ( Third Chamber, Extended Composition ),
with an address for service in Luxembourg at the Chambers              composed of C. P. Briët, President, B. Vesterdorf, P. Lindh,
of Lucy Dupong, 14a rue des Bains , v . Commission of the              A. Potocki and J. D. Cooke , Judges; H. Jung, Registrar,
European Communities ( Agents : Francisco Enrique                      made an order on 17 April 1996 , in which it:
Gonzalez-Diaz and Géraud de Bergues ), supported by
United Kingdom of Great Britain and Northern Ireland                   fixes the sum of the total costs payable by the applicant to
 ( Agents : John D. Colahan and Christopher Vajda ), with an           the intervener British Airways pic at £ 40 000.
address for service in Luxembourg at the British Embassy,
 14 boulevard Roosevelt, TAT SA, established at Tours                  (') OJ No C 45 , 17. 2 . 1993 .
 ( France ), represented by Antoine Winckler , of the Paris Bar,
and Romano Subiotto, Solicitor, with an address for service
 in Luxembourg at the Chambers of Elvinger and Hoss , 15
 Côte d'Eich, and British Airways pic, established at
Hounslow (United Kingdom ), represented by William Allan
 and James E. Flynn, Solicitors , with an address for service in                      ORDER OF THE PRESIDENT
 Luxembourg at the Chambers of Loesch and Wolter, 1 1 rue                        OF THE COURT OF FIRST INSTANCE
 Goethe — application for taxation of the costs payable by
 the applicant to the intervener British Airways pic pursuant                                  of 22 April 1996
 to the judgment of the Court of First Instance of 19 May              in Case T-23 /96 R: Eisa De Persio v. Commission of the
  1994 in Case T-2/93 Air France v . Commission [ 1 994] ECR                                European Communities
 11-323 — the Court of First Instance ( Third Chamber,                                            ( 96/C 210/42 )
 Extended Composition ), composed of C. P. Briët, President,
 B. Vesterdorf, P. Lindh , A. Potocki and J. D. Cooke, Judges;
 H. Jung, Registrar, made an order on 17 April 1 996 , in                              (Language of the case: Italian)
 which it :
                                                                        In Case T-23/96 R: Eisa De Persio, an official of the
 fixes the sum of the total costs payable by the applicant to           Commission of the European Communities, represented by
 the intervener British Airways pic at £ 29 000.                        Giovanni Petroni and Franco Giampietro, of the Rome Bar,
                                                                        with an address for service in Luxembourg at the Chambers
                                                                        of Gilles Bouneau, 15 avenue du Bois, v . Commission of the
  (>) OJ No C 45 , 17 . 2 . 1993 .                                      European Communities ( Agent: Gianluigi Valsesia ) —
                                                                        application, first, for suspension of operation of the decision
                                                                        of the Commission of 22 December 1 995 transferring the


title: Case C-254/05: Action brought on 16 June 2005 by the Commission of the European Communities against the Kingdom of Belgium

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/11

         Action brought on 16 June 2005 by the Commission of the European Communities against the Kingdom of Belgium
   (Case C-254/05)
   (2005/C 205/21)
   Language of the case: French
   An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 16 June 2005 by the Commission of the European Communities, represented by Bruno Stromsky, acting as Agent, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               declare that, by requiring automatic fire detection systems with point detectors lawfully manufactured or marketed in another Member State which do not have the ‘EC’ mark:

                           —

                           to comply with Belgian standard NBN S21-100;

                           —

                           to be subject to type approval, in this case by BOSEC, an obstacle made worse by the disproportionate costs which that approval incurs;

                           —

                           to undergo tests and checks in connection with that type approval which, essentially, duplicate the controls which have already been carried out under other procedures in another Member State,

                     the Kingdom of Belgium has failed to fulfil its obligations under Article 28 EC;

               2.

               order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   According to the Commission, the Belgian regulations introduce restrictions on the use of fire detectors lawfully manufactured or marketed in other Member States which are therefore incompatible with Article 28 EC and are not justified in the light of Article 30 EC.


title: Action brought on 20 August 1998 by 'G' against Commission of the European Communities (Case T-136/98)

text:
24.10.98             EN                   Official Journal of the European Communities                                    C 327/33
decision of 7 August 1997 was properly adopted by the                Ð hold that the defendant is obliged to make reparation
defendant, which had not received any false or incomplete                 for the non-material damage suffered by the applicant
information from her. In fact, it constitutes the final step              as a result of the illegality of the contested decision
in a procedure initiated, following the intervention of the               and order the defendant to pay damages to be
Ombudsman, between the applicant herself and the                          determined by the Court;
[acting] head of the unit to which she was to be
transferred. Furthermore, she considers there to be no
public interest which could override her interest in the             Ð order the defendant to pay             the   costs  of the
continuation of a situation which she was entitled to                     proceedings.
regard as permanent. An alleged lack of information from
certain people within DG I, which is the basis for the
contested decision, clearly cannot be assimilated to a
                                                                     Pleas in law and main arguments adduced in support:
public interest.
                                                                     The applicant accuses the appointing authority of having
The applicant also alleges a breach of the duty to state             failed to take action in the face of the sexual harassment,
reasons, in that the contested decision does not contain             coupled with harassment in connection with work,
any statement of reasons, not even a standard phrase.                allegedly suffered by the applicant at the hands of her
Furthermore, and in so far as it became apparent during              immediate superior.
the inter-departmental meeting that the contested decision
was based on an alleged lack of information from the
immediate superior to the head of the unit to which she
                                                                     In support of her claims she raises the following pleas in
was to be transferred, she claims that, even if the duty to
                                                                     law:
state reasons was satisfied on that basis, the contested
decision should in any event be considered to be based on
grounds which are invalid, since the procedures for
informing and obtaining the approval of the hierarchy                Ð Misuse of powers and infringement of Articles 12, 24
within DG I been complied with.                                           and 25 of the Staff Regulations of Officials of the
                                                                          European Communities, of Council Directive 76/207/
                                                                          EEC of 9 February 1976 on the implementation of the
                                                                          principle of equal treatment for men and women as
The applicant concludes by claiming that the appointing                   regards access to employment, vocational training and
authority acted in breach of the duty to have regard for                  promotion and working conditions (1), of the Council
the welfare of officials and the interest of the service.                 Resolution of 29 May 1990 on the protection of the
                                                                          dignity of women and men at work (2), of the
                                                                          Commission's Recommendation (92/131/EEC) of
                                                                          27 November 1991 on the protection of the dignity of
                                                                          women and men at work (3) and of the code of
                                                                          practice intended to combat sexual harassment
                                                                          annexed to the Commission's Recommendation 92/
Action brought on 20 August 1998 by G' against                           131/EEC of 27 November 1991.
        Commission of the European Communities
                       (Case T-136/98)
                                                                     Ð Breach of the general principles of legal certainty and
                        (98/C 327/57)                                     of the protection of legitimate expectations, in so far
                                                                          as the applicant, who was encouraged by the adoption
                                                                          and distribution of encouraging rules to submit a
                                                                          complaint against the person harassing her, came up
               (Language of the case: French)
                                                                          against a wall of indifference and hostility.
An action against the Commission of the European
                                                                     Ð Infringement of the rights of the defence, in so far as
Communities was brought before the Court of First
                                                                          the applicant, who was heard on two occasions during
Instance of the European Communities on 20 August
                                                                          the administrative enquiry concerning the facts under
1998 by G', represented by Anne Krywin, of the Brussels
                                                                          investigation, was never given access to the file
Bar, with an address for service in Luxembourg at the
                                                                          resulting from that enquiry. Furthermore, she claims
Chambers of AndreÂ Lutgen, 1 Rue Jean-Pierre Brasseur.
                                                                          that the enquiry was conducted with insufficient
                                                                          objectivity and impartiality.
The applicant claims that the Court should:
                                                                     (1) OJ L 39, 14.2.1976, p. 40.
                                                                     (1) OJ C 157, 27.6.1990, p. 3.
                                                                     (1) OJ L 49, 24.2.1992, p. 1.
Ð annul the implied decision rejecting complaint
    No R/18/98 submitted on 21 January 1998 by the
    applicant;


title: Case T-95/99: Action brought on 16 April 1999 by S.A. Satellimages TV5 against the Commission of the European Communities

text:
C 188/28               EN                     Official Journal of the European Communities                                       3.7.1999
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant, who is the owner of a plantation in French                The applicant had asked for part of her salary to be transferred
Polynesia, states that he participated in a project for the              to the Menton (France) branch of the Banca SanPaolo, and
planting of tropical fruit trees on the Island of Raiatea which,         with her request attached a declaration that she had opened a
in accordance with promises given during a meeting of the                savings account designated ‘Home savings plan’ for the
farmers of Ile-sous-le-Vent in October 1991, was to be                   purpose of acquiring immovable property in France.
subsidised by the European Development Fund (EDF). The
funds assigned to that project were paid over, but were
                                                                         The applicant contests the condition stipulated by the Com-
apparently misapplied by the Government of French Polynesia,
                                                                         mission on the basis of Article 4 of its internal directive of
which was subsequently obliged to repay the money it had
                                                                         30 July 1993 (I.A. No 815 of 11 August 1993) to the effect
used improperly.
                                                                         that the transfer of the above sum is contingent upon the issue
                                                                         of an undertaking by the Banca SanPaolo, Menton, that it will
The applicant maintains that the fact that the EDF delegation            inform the Commission of all movements of funds made by
proposed the said project to the farmers of Raiatea and Tahaa            the applicant so that their whereabouts can be monitored.
gave them a legitimate expectation that the subsidy would be
paid to them. In accordance with Article 155 of the EC Treaty,
the Commission was under a duty to ensure that the funds                 In support of her claims, the applicant argues that the
assigned to the project were in fact paid to the farmers who             Commission has infringed and misapplied Article 17(2)(b) of
had, for their part, complied with the agreement.                        Annex VII to the Staff Regulations.
The applicant concludes from the foregoing that there is a               On that point, the applicant maintains that the purpose of
direct link between the undertaking given by the EDF and the             that provision is to enable an official who has financial
harm he suffered, which is in the amount of the promised                 responsibilities in a country other than his place of employ-
subsidy.                                                                 ment to have part of his disposable income transferred in the
                                                                         currency of that country in order to meet regular and certified
                                                                         expenses. It would therefore be unjustified to make the transfer
                                                                         of funds contingent upon the issue of a declaration such as
                                                                         that sought by the Commission. Also, the Commission’s
                                                                         request is in contravention of the general rules governing bank
                                                                         secrecy and the protection of privacy, both at the European
Action brought on 19 April 1999 by Beatrice Bonaiti                      level and in France. According to the applicant, it is difficult to
Brighina against the Commission of the European Com-                     imagine what information the banks are under a duty to
                            munities                                     protect, if not the details of clients’ transactions.
                         (Case T-93/99)
                        (1999/C 188/65)
                  (Language of the case: Italian)
                                                                         Action brought on 16 April 1999 by S.A. Satellimages TV5
                                                                         against the Commission of the European Communities
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 19 April 1999 by Beatrice Bonaiti                                          (Case T-95/99)
Brighina, represented by Mirco Rizzoglio and Franco Colussi,
of the Milan and Luxembourg Bars, with an address for service                                    (1999/C 188/66)
in Luxembourg at the Chambers of Franco Colussi, 36 Rue De
Wiltz.
                                                                                (Language of the case: English)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
— annul the internal Commission directive of 30 July 1993                ties was brought before the Court of First Instance of the
    (published in I.A No 815 of 11 August 1993), and the                 European Communities on 16 April 1999 by S.A. Satellimages
    refusal of 24 June 1998 (Prot. No 563 IX.B.4 VT/D(98)) of            TV5, represented by Eduard Marissens, with an address for
    Directorate General IX (Personnel and Adrninistration) and           service in Luxembourg at the Chambers of Lucy Dupong, 14
    the measure rejecting the complaint (Prot. No 3964 of                rue des Bains.
    22 Decernber 1998) concerning the transfer of FF 7 600
    per month, being part of the applicant’s salary, to her
    account designated ‘Home savings plan’ at the Menton                 The applicant claims that the Court should:
    branch of the Banca San Paolo;
                                                                         — declare annulled and void the decision, adopted by the
— in any event, award damages to be specified in the course                  defendant and contained in its letter of 15 February 1999
    of the proceedings;                                                      to the applicant, to reject the latter’s formal complaint of
                                                                             18 March 1998;
— order the Commission to pay all expenses and fees
    occasioned by the proceedings.                                       — order the Commission to pay the costs.
 ---pagebreak--- 3.7.1999              EN                     Official Journal of the European Communities                                      C 188/29
Pleas in law and main arguments                                         — infringement of Article 86 of the EC Treaty
                                                                            In the relationship between the satellite broadcaster and
                                                                            the cable operator, the one payment reasonably to be
The applicant, a public interest broadcaster, having its head-              expected is by the cable operator to the broadcaster as
quarters in France, whose shareholders are all the French-                  financial compensation for the authorisation. When the
speaking public service broadcasters of France, Belgium,                    opposite situation is found to exist, as in the case of the
Switzerland and Canada, challenges the decision, contained in               tariffs charged by Deutsche Telekom, this can only be due
the Commission’s letter of 15 February 1999, rejecting a                    to the abuse by the cable operator of the dominant position
complaint concerning Deutsche Telekom’s pricing policy in                   he occupies.
that, with regard to its cable television network, Deutsche
Telekom applies a system of dual levies, requiring payment              — infringement of the general principles of sound adminis-
from broadcasters such as the applicant as well as from the                 tration, of Article 86 and 155 of the EC Treaty and of
final consumers (the cable-connected households).                           Article 3(1) of Council Regulation No 17/62
                                                                            In rejecting the applicant’s complaint, the Commission has
                                                                            merely followed the precedent which it created for itself in
The applicant submits that the Commission’s letter of 15 Feb-               its Interim Report of 22 October 1993 in Case IV/34.463
ruary 1999 is to be regarded as containing a final decision                 -VPRT/Deutsche Telekom, in which the Commission
rejecting the complaint                                                     undertook a task that was not its own and acted outside
                                                                            the scope of its obligations under Article 155 and under
                                                                            Regulation No 17/62. The Commission has thus, without
— because it is exclusively based upon a definition of cable                there being any necessity or justification by virtue of the
    distribution as comprising two different services, one                  VPRT case, and without consulting third parties, implicitly,
    rendered to the satellite broadcaster and the other to the              but already definitively, granted its authorisation to Deuts-
    cable-connected household, which leads automatically to                 che Telekom to levy the contested tariff against satellite
    the conclusion that a commercial provider of these two                  broadcasters.
    services may request separate remuneration from their
    respective beneficiaries;
— because the Commission’s definition of cable distribution
    is not limited to Deutsche Telekom but covers all cable
    operators wherever they may be established in the Com-
    munity;
                                                                        Action brought on 26 April 1999 by ‘L’ against the
                                                                                Commission of the European Communities
— because the Commission had already arrived at its defi-
    nition of cable distribution as comprising two separate                                     (Case T-102/99)
    services and at the principle of the tariff against satellite
    broadcasters in a so-called Interim Report of 22nd October
    1993 in Case No IV/34.463 VPRT/Deutsche Telekom.                                            (1999/C 188/67)
                                                                                (Language of the case: French)
The applicant’s pleas are:
                                                                        An action was brought on 26 April 1999 before the Court of
— infringement of Articles 60 and 86 of the EC Treaty                   First Instance of the European Communities by ‘L’, represented
                                                                        by Jean-Noël Louis, Greta-Françoise Parmentier and Véronique
                                                                        Peere, of the Brussels Bar, with an address for service in
    The Commission perpetrates a confusion between the                  Luxembourg at the office of Fiduciaire Myson SARL, 30 Rue
    economic advantage that the authorised use by one                   de Cessange.
    undertaking of the product of another undertaking may
    generate for the latter and the notion of a ‘service’. In the
    case of cable distribution no service is being offered by the       The applicant claims that the Court should:
    cable operator to the broadcaster. On the contrary, the
    cable operator himself chooses, from among the pro-                 — annul the decisions rejecting the applicant’s requests of
    grammes already present on the radio and satellite waves,               25 February 1998 for recognition of his status as a
    those signals with which he wishes to compose his cable                 ‘registered partner’ and of 11 May 1998 for the extension
    offerings to the cable-connected households, if and when                to himself and his partner of all the rights, privileges and
    he obtains the corresponding broadcasters’ authorisations               benefits conferred on married officials and their spouses,
    to have their signals so retransmitted via cable. The sole
    service offered and supplied against remuneration is the
    cable offering to the cable-connected household.                    — order the defendant to pay the costs.


title: Case T-130/99: Action brought on 27 May 1999 by David Crabbe against European Centre for the Development of Vocational Training (CEDEFOP)

text:
C 226/42              EN                     Official Journal of the European Communities                                        7.8.1999
Pleas in law relied on:           infringement of Article 44 of             Article 10(1) of the Decree, 5 % as a strategic project
                                  Regulation (EC) No 40/94                  amount and 5 % as an amount in respect of an investment
                                                                            project creating significant employment, in accordance
                                  infringement of Article 63(2)             with Article 10(2) of the Decree and, finally, 5 % in
                                  of Regulation (EC) No 40/94               accordance with Article 10(4) of the Decree;
                                  infringement of Articles 74(1)
                                  and 76(1)(b) of Regulation (EC)       — violation of the right of the Comunidad Autónoma del
                                  No 40/94.                                 Paı́s Vasco to a fair hearing, inasmuch as the Comunidad
                                                                            had no knowledge, prior to the communication of the
                                                                            contested decision, of the infringement attributed to it by
                                                                            the Commission with regard to Article 7(d) of the Decree;
                                                                        — erroneous interpretation of Article 87(3)(c) EC (ex Article
                                                                            92(3)(c)). In advancing that plea, on which they rely in the
                                                                            alternative in the event that the Court declares the existence
                                                                            of State aid, the applicants maintain that the Commission
Action brought on 26 May 1999 by the Comunidad                              should in any event have characterised that aid as regional
Autónoma del Paı́s Vasco and Gasteizko Industria Lurra                     aid withir the meaning of the abovementioned provisions.
S.A. against the Commission of the European Communi-
                               ties
                        (Case T-129/99)
                        (1999/C 226/74)
                                                                        Action brought on 27 May 1999 by David Crabbe against
                                                                        European Centre for the Development of Vocational
                  (Language of the case: Spanish)                                             Training (CEDEFOP)
An action against the Commission of the European Communi-                                        (Case T-130/99)
ties was brought before the Court of First Instance of the
European Communities on 26 May 1999 by the Comunidad
Autónoma del Paı́s Vasco and Gasteizko Industria Lurra S.A.,                                   (1999/C 226/75)
both established in Vitoria, Spain, represented by Fernando
Pombo Garcı́a, Emiliano Garayar Gutiérrez and Juan Alonso
Berberena, lawyers, with an address for service c/o Gómez-                                (Language of the case: French)
Acebo & Pombo 99/101 Rue de la Loi, 1040 Brussels.
                                                                        An action against European Centre for the Development of
The applicants claim that the Court should:                             Vocational Training was brought before the Court of First
                                                                        Instance of the European Communities on 27 May 1999 by
— annul the Commission’s decision of 24 February 1999                   David Crabbe, residing at Thessaloniki (Greece), represented
    concerning State aid granted by Spain to Daewoo Elec-               by Marc-Albert Lucas, of the Liège Bar, with an address for
    tronics Manufacturing España (DEMESA);                             service in Luxembourg at Fiduciaire Myson S.à r.l., 30 Rue de
                                                                        Cessange.
— order the Commission to pay the costs.
                                                                        The applicant claims that the Court should:
Pleas in law and main arguments                                         — annul the defendant’s decision to reject his administrative
                                                                            complaint of 27 October 1998;
The pleas in law and main arguments are similar to those
advanced in Case T-127/99 Territorio Histórico de Alava,               — annul the defendant’s decision to reject his request of
Arabako Foru Aldundia — Diputación Foral de Alava v                        26 June 1998;
Commission of the European Communities.
                                                                        — order the defendant to pay the costs.
The applicants plead, in particular:
                                                                        Pleas in law and main arguments
— alleged contravention of the principles of legal certainty
    and of the protection of legitimate expectations, inasmuch
    as DEMESA, correctly interpreting the criteria laid down in         Until 1 September 1997, the applicant was an official in Grade
    Article 10 of the Decree governing the EKINEM pro-                  LA 6 of the European Parliament working as a translator as
    gramme, as notified to the Commission, was entitled, in             part of the Language Service provided for in Article 5(2) of the
    the applicants’ view, to receive a 25 % non-repayable               Staff Regulations. He applied for the post of English-language
    subsidy, comprising a 10 % tranche in accordance with               translator advertised by CEDEFOP.
 ---pagebreak--- 7.8.1999               EN                     Official Journal of the European Communities                                         C 226/43
By decision of 8 August 1997, the director of CEDEFOP                    The applicant claims that the Court should:
adopted the applicant’s transfer to CEDEFOP to an English-
language translator post with effect from 1 September 1997.
                                                                         — Annul the implied rejection of the request submitted by
                                                                              the applicant on 23 March 1998, registered on 26 March
Following his transfer the applicant noticed that CEDEFOP had                 1998, in which he requested the appointing authority to
not, contrary to the requirements of Article 5(2), set up, for                promote him to Grade A4 with step calculated in accord-
posts of translators and interpreters, a Language Service within              ance with the Staff Regulations;
category A, so that he was thus transferred by the decision of
8 August 1997 from an LA 6 post at the European Parliament               — Annul the decision not to promote the applicant to Grade
to an A 6 post at CEDEFOP. Accordingly, the applicant                         A4 with step calculated in accordance with the Staff
submitted a request to the director of CEDEFOP asking him to                  Regulations with retroactive effect from 10 October 1989
comply with Article 5(2) of the Staff Regulations or, if it                   in the 1998 promotion exercise, which followed from the
transpires that, following his transfer, he was appointed to a                exclusion of his name from the list of officials eligible for
post within the Language Service, that the director should state              promotion published in Administrative Notices No 1045
this clearly in writing. The applicant received neither a formal              of 3 August 1998;
reply to that request nor a reply to the complaint which
followed it.
                                                                         — Annul the decision expressly rejecting the two complaints
                                                                              brought by the applicant, registered on 28 October 1998
The applicant claims that:                                                    and 5 November 1998, against the above decisions, which
                                                                              was notified to the applicant on 8 March 1999 and taken
                                                                              by Commissioner Liikanen on 24 February 1999;
— the contested decisions infringe the second sentence of the
    second paragraph of Article 25 of the Staff Regulations
    inasmuch as they do not state the grounds on which they              — Pay, as compensation for non-pecuniary damage, the sum
    are based. Furthermore. in the applicant’s view, the mere                 of BEF 500 000 (EUR 12 394.68) together with interest at
    fact that the contested decisions are implied rejections is               8 % per annum from the date of judgment until payment
    contrary to the undertakings formally made by the director                in full;
    of CEDEFOP;
                                                                         — Order the defendant to pay the costs.
— contrary to Article 5(2) of the Staff Regulations, CEDEFOP
    has not fulfilled its obligation to set up a Language Service
    within category A; and
                                                                         Pleas in law and main arguments
— the decision of CEDEFOP’s appointing authority not to set
    up such a service constitutes misuse of powers.
                                                                         The applicant, who entered the service of the Commission on
                                                                         1 April 1964, was promoted to Grade A5 on 1 January 1977.
                                                                         By letter of 23 March 1998 the applicant submitted a request
                                                                         for promotion to Grade A4.
                                                                         In support of his application, the applicant claims breach of:
                                                                         — Articles 25, second paragraph, 43 and 45 of the Staff
                                                                              Regulations, and
Action brought on 8 June 1999 by Luc Verheyden against
      the Commission of the European Communities
                                                                         — the principle of equal concern for welfare and protection
                                                                              of legitimate expectations and the principle that all admin-
                         (Case T-138/99)                                      istrative decisions must be based on reasoning which is
                                                                              legal and relevant, that is to say, lawful, admissible and free
                                                                              from manifest errors of law or fact.
                         (1999/C 226/76)
                                                                         According to the applicant, the appointing authority mani-
                                                                         festly took account neither of his merits nor of his extraordi-
                   (Language of the case: French)                        nary seniority in grade, putting him in a completely abnormal
                                                                         administrative position, both with respect to a classic career
                                                                         open to any official in a situation identical with or comparable
An action against the Commission of the European Communi-                to his, and with respect to his objective expectations and
ties was brought before the Court of First Instance of the               merits.
European Communities on 8 June 1999 by Luc Verheyden,
residing in Angera, Italy, represented by Eric Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at the
Chambers of Louis Schiltz, 2 Rue du Fort Rheinsheim.