title: Case T-183/00: Action brought on 13 July 2000 by S.A. Strabag Benelux N.V. against the Council of the European Union

text:
C 273/14                EN                     Official Journal of the European Communities                                     23.9.2000
remaining within the limits of the findings of fact made by the           —     annul the Commission’s decision to appoint another
Commission. On the other hand, in the assumption that the                       person to fill that post;
Council did have power to reject the proposal, such rejection
was illegal in the present case, because it constituted
                                                                          —     in so far as may be necessary, annul the implicit decision
                                                                                of the appointing authority rejecting the pre-litigation
—     a wilful disregard or manifest error of appreciation of the               claim made by the applicant;
      facts found by the Commission
—     a denial of procedural rights and legitimate expectations           —     award the sum of 120 000 euro, subject to increase or
      of the complainants                                                       decrease during the course of the proceedings, by way of
                                                                                compensation for the non-material damage suffered by
                                                                                the applicant as a result of the irregular or incomplete
—     a failure to state adequate reasons as required by
                                                                                information gathered by the defendant in relation to the
      Article 253 EC
                                                                                applicant’s personal file and the state of uncertainty and
                                                                                worry in which he has been placed with regard to his
Finally, the applicant claims that the Council is liable under                  future career;
Article 288(2) EC because its failure to adopt protective
measures amounts to unlawful conduct which caused and
continues to cause damage to the applicant.                               —     award the sum of 25 000 euro, subject to increase or
                                                                                decrease during the course of the proceedings, by way of
                                                                                compensation for the material damage suffered by the
                                                                                applicant as a result of his having been rejected as a
(1) Council Regulation (EC) No 384/96 of 22 December 1995 on                    candidate for the post to be filled and of his having thus
    protection against dumped imports from countries not members                lost an opportunity of promotion;
    of the European Community, OJ 1996 L 56, p. 1, as last amended
    by Council Regulation (EC) No 905/98 of 27 April 1998, OJ
    L 128, p. 18.                                                         —     order the Commission to pay all the costs.
                                                                          Pleas in law and main arguments
                                                                          The pleas in law and main arguments are similar to those in
                                                                          Cases T-135/00, T-136/00 and T-164/00.
Action brought on 6 July 2000 by Carmelo Morello
  against the Commission of the European Communities
                         (Case T-181/00)
                         (2000/C 273/24)
                    (Language of the case: French)
                                                                          Action brought on 13 July 2000 by S.A. Strabag Benelux
                                                                                N.V. against the Council of the European Union
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 July 2000 by Carmelo Morello,                                            (Case T-183/00)
residing in Brussels, represented by Jacques Sambon and Pierre
Paul Van Gehuchten, of the Brussels Bar.
                                                                                (2000/C 273/25)
The applicant claims that the Court should:
—     annul the Commission’s decision rejecting his application                              (Language of the case: French)
      for post COM/090/99 IV/C/1 as head of unit with
      responsibility for directing and coordinating the work of
      the ‘Telecommunications and Postal Services’ unit within            An action against the Council of the European Union was
      the Information, Communications and Multimedia Direc-               brought before the Court of First Instance of the European
      torate, and annul all preparatory acts adopted in antici-           Communities on 13 July 2000 by S.A. Strabag Benelux
      pation of that decision which may themselves prove to               N.V., established at Stabroek (Belgium), represented by André
      be irregular;                                                       Delvaux, of the Brussels Bar.
 ---pagebreak--- 23.9.2000              EN                     Official Journal of the European Communities                                        C 273/15
The applicant claims that the Court should:                              Action brought on 24 July 2000 by Sabrina Tesoka against
                                                                                the Commission of the European Communities
—     annul the decision of 12 April 2000 by which the Council
      awarded to another company the contract for general
      installation and maintenance works forming the subject-                                    (Case T-192/00)
      matter of Notice 107865 published in Official Journal
      S 145 of 30 July 1999;
                                                                                (2000/C 273/26)
—     order the Council of the European Union to pay to
      Strabag, subject to increase, the sum of BEF 153 421 286
      or EUR 3 803 214 together with interest thereon at the
      rate of 6 % from 12 April 2000;
                                                                                (Language of the case: French)
—     order the Council to pay the costs.
                                                                         An action against the Commission of the European Communi-
Pleas in law and main arguments                                          ties was brought before the Court of First Instance of the
                                                                         European Communities on 24 July 2000 by Sabrina Tesoka,
                                                                         residing at Overijse (Belgium), represented by Jean-Noël Louis
The applicant participated in the restricted tendering procedure         and Véronique Peere, of the Brussels Bar.
relating to the installation and maintenance works to be
carried out in the Council’s buildings in Brussels.
                                                                         The applicant claims that the Court should:
In support of its action for annulment, it maintains:
                                                                         —     annul the decision of the selection board in competition
—     that the contested decision is vitiated by the absence of a              COM/A/12/98 awarding her, in her oral test, a mark
      statement of reasons or, at the very least, by inadequate                lower than the minimum required and excluding her
      reasoning;                                                               from the reserve list;
—     that by attaching the greatest weight to the price criterion,
                                                                         —     order the defendant to pay the costs.
      and by failing to consider the other criteria for the award
      of the contract as provided for in the tender specifications,
      the Council has infringed Articles 18 and 30 of Directi-
      ve 93/37/EEC (1);
                                                                         Pleas in law and main arguments
—     that by awarding the contract to a company whose
      tender was not in conformity with the special tender
      specifications, the Council has infringed the terms of the
      latter document;                                                   In support of her application, the applicant pleads:
—     that by classifying three tenderers as being of equal merit        —     failure to comply with essential procedural requirements,
      with regard to the first criterion and, probably, another                violation of the principle of equal treatment and infringe-
      company and Strabag as being of equal merit with regard                  ment of the rules governing the functioning of selection
      to the fourth criterion, the Council committed manifest                  boards, in that the composition of the selection board
      errors of assessment.                                                    varied during the course of the oral testing of the various
                                                                               candidates; and
Lastly, the applicant claims compensation for the damage
which, it claims, results from the fact of its having been               —     non-compliance with the obligation to provide a state-
unfairly turned down as a tenderer for the contract in question.               ment of reasons, in that it is not possible to determine
                                                                               from the overall mark awarded for the oral test whether
                                                                               the selection board fulfilled its obligation to carry out an
                                                                               assessment of the points set out in the competition
(1) Council Directive 93/37/EEC of 14 June 1993 concerning the                 notice.
    coordination of procedures for the award of public works
    contracts (OJ 1993 L 199, p. 54).


title: Case C-215/09: Reference for a preliminary ruling from the Markkinaoikeus (Finland) lodged on 15 June 2009 — Mehiläinen Oy, Suomen Terveystalo Oyj v Oulun kaupunki

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/14

         Reference for a preliminary ruling from the Markkinaoikeus (Finland) lodged on 15 June 2009 — Mehiläinen Oy, Suomen Terveystalo Oyj v Oulun kaupunki
   (Case C-215/09)
   2009/C 193/19
   Language of the case: Finnish

      Referring court

   Markkinaoikeus

      Parties to the main proceedings

      Applicants: Mehiläinen Oy, Suomen Terveystalo Oyj

      Defendant: Oulun kaupunki

      Questions referred

               1.

               Is an arrangement by which a municipal contracting authority concludes with a private undertaking in the form of a company which is separate from it a contract establishing a new undertaking in the form of a share company, on an equal share basis both in terms of ownership and of power of control, from which the municipal contracting authority commits itself, when setting up the company, to purchasing occupational health and wellbeing services for its own staff, on an overall assessment, an arrangement which must be put out to tender, on the ground that the general contract is a contract for the procurement of services within the meaning of Directive 2004/18/EC of the European Parliament and of the Council on the coordination of procedures for the award of public supply contracts and public service contracts (1), or is the arrangement to be regarded as the establishment of a joint venture and the transfer of the business activity of a municipal enterprise to which that directive and the consequent obligation to put out to tender are not applicable?

               2.

               Should any significance in this case also be attached

                           (a)

                           to the fact that the City of Oulu, as a municipal contracting authority, has undertaken to acquire in return for consideration the services referred to above over a four-year transitional period, after which the municipal contracting authority intends, according to its decision, once again to put out to tender the occupational health care services it requires;

                           (b)

                           to the fact that, prior to the arrangement in question, most of the turnover of the municipal enterprise that was part of the City of Oulu organisation came from occupational health care services other than those produced for the City’s own employees;

                           (c)

                           to the fact that the founding of the new company has been organised with the intention of transferring as a capital contribution the activity of the municipal enterprise, which comprises the production of occupational health care services both for the City’s employees and for private customers?

      (1)  OJ 2004 L 134, p. 114


title: Case C-275/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 June 2011 — GfBk Gesellschaft für Börsenkommunikation mbH v Finanzamt Bayreuth

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/24

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 June 2011 — GfBk Gesellschaft für Börsenkommunikation mbH v Finanzamt Bayreuth
   (Case C-275/11)
   2011/C 269/45
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: GfBk Gesellschaft für Börsenkommunikation mbH

      Defendant: Finanzamt Bayreuth

      Questions referred

   For the purpose of interpreting the term ‘management of special investment funds’ within the meaning of Article 13B(d)(6) of Directive 77/388/EEC, (1) is the service provided by the third-party manager of a special investment fund sufficiently specific and hence exempt from taxation only if

               (a)

               the manager performs a management function and not only an advisory function or if

               (b)

               the service differs in nature from other services by reason of a characteristic feature that qualifies for tax exemption under this provision or if

               (c)

               the manager operates on the basis of a delegation of functions under Article 5g of Directive 85/611/EEC, (2) as amended?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1).

      (2)  Directive 2001/107/EC of the European Parliament and of the Council of 21 January 2002 amending Council Directive 85/611/EEC on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS) with a view to regulating management companies and simplified prospectuses (OJ 2002 L 41, p. 20).


title: Case C-539/12: Judgment of the Court (First Chamber) of 22 May 2014 (request for a preliminary ruling from the Employment Tribunal, Leicester — United Kingdom) — Z.J.R. Lock v British Gas Trading Limited (Social policy — Organisation of working time — Directive 2003/88/EC — Right to paid annual leave — Composition of remuneration — Basic salary and commission according to turnover realised)

text:
               4.8.2014

               EN

               Official Journal of the European Union

               C 253/8

         Judgment of the Court (First Chamber) of 22 May 2014 (request for a preliminary ruling from the Employment Tribunal, Leicester — United Kingdom) — Z.J.R. Lock v British Gas Trading Limited
   (Case C-539/12) (1)

   ((Social policy - Organisation of working time - Directive 2003/88/EC - Right to paid annual leave - Composition of remuneration - Basic salary and commission according to turnover realised))
   2014/C 253/10
   Language of the case: English

      Referring court

   Employment Tribunal, Leicester

      Parties to the main proceedings

      Applicant: Z.J.R. Lock

      Defendant: British Gas Trading Limited

      Re:

   Request for a preliminary ruling — Employment Tribunal, Leicester — United Kingdom — Interpretation of Article 7 of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18) as amended by Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (OJ 2003 L 299, p. 9) — Consultant being paid a basic salary together with monthly premiums according to the turnover realised and the number of sale contracts concluded, paid in arrears — Maintenance of the basic salary during annual leave, but not the premiums, except those linked to the services provided before the leave

      Operative part of the judgment

               1)

               Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time must be interpreted as precluding national legislation and practice under which a worker whose remuneration consists of a basic salary and commission, the amount of which is fixed by reference to the contracts entered into by the employer as a result of sales achieved by that worker, is entitled, in respect of his paid annual leave, to remuneration composed exclusively of his basic salary.

               2)

               The methods of calculating the commission to which a worker, such as the applicant in the main proceedings, is entitled in respect of his annual leave must be assessed by the national court or tribunal on the basis of the rules and criteria set out by the case-law of the Court of Justice of the European Union and in the light of the objective pursued by Article 7 of Directive 2003/88.

      (1)  OJ C 46, 16.2.2013.


title: Case C-283/99: Action brought on 29 July 1999 by the Commission of the European Communities against the Italian Republic

text:
2.10.1999              EN                    Official Journal of the European Communities                                           C 281/9
Appeal brought on 28 July 1999 by Ferriera Lamifer                      — Misuse of powers in terms of view of unequal treatment.
SpA (C-281/99 P) and Ferriera Acciaieria Casilina SpA
(C-282/99 P), against the judgment delivered on 12 May
1999 by the Third Chamber, extended composition, of                     (1) Decision of the ECSC Commission of 27 November 1991, OJ
the Court of First Instance of the European Communities                     1991 L 362 of 31.12.1991, p. 57.
in Joined Cases T-164/96, T-165/96, T-166/96, T-167/96,
T-122/97 and T-130/97, brought by Moccia Irme SpA,
Prolafer Srl, Ferriera Acciaieria Casilina SpA, Dora Ferri-
era Acciaieria Srl, Ferriera Lamifer SpA and Nuova Sider-
camuna SpA, against Commission of the European Com-
                              munities
                                                                        Action brought on 29 July 1999 by the Commission of
                                                                          the European Communities against the Italian Republic
              (Cases C-281/99 P and C-282/99 P)
                                                                                (Case C-283/99)
                         (1999/C 281/17)                                                         (1999/C 281/18)
                                                                        An action against the Italian Republic was brought before the
An appeal against the judgment delivered on 12 May 1999 by              Court of Justice of the European Communities on 29 July
the Third Chamber, extended composition, of the Court of                1999 by the Commission of the European Communities,
First Instance of the European Communities in Joined Cases              represented by Antonio Aresu and Maria Patakia, both of its
T-164/96, T-165/96, T-166/96, T-167/96, T-122/97 and                    Legal Service, acting as Agents, the office of Carlos Gómez de
T-130/97, brought by Moccia Irme SpA, Prolafer Srl, Ferriera            la Cruz, Wagner Centre Kirchberg.
Acciaieria Casilina SpA, Dora Ferriera Acciaieria Srl, Ferriera
Lamifer SpA and Nuova Sidercamuna SpA, against Com-
mission of the European Communities, was brought before                 The Commission of the European Communities claims that
the Court of Justice of the European Communities on 28 July             the Court should:
1999 by Ferriera Lamifer SpA, having its registered office in
Travagliato (Italy), and Ferriera Acciaieria Casilina SpA having        a) Declare that, by providing that:
its registered office in Montecompatri (Italy), both represented
by Carmine Punzi, Mario Siragusa and Filippo Satta, of the                   — private security work (including surveillance or caretak-
Rome Bar, with an address for service in Luxembourg at                           ing of movable property and buildings) may be carried
Helvinger, Hoss & Prussen, 2 place Winston Churchill, L-1340                     out in Italy, subject to licence, only by ‘private surveil-
Luxembourg.                                                                      lance firms’ holding Italian nationality;
                                                                             — only citizens in possession of such a licence may be
                                                                                employed as ‘qualified private security guards’;
The appellant claims that the Court should:
                                                                             the Italian Republic has failed to fulfil its obligations under
                                                                             39 EC, 43 EC and 49 EC; and
— grant these appeals, amend the contested decision accord-
     ingly and make an appropriate order for costs.                     b) Order the Italian Republic to pay the costs.
                                                                        Pleas in law and main arguments
Pleas in law and main arguments
                                                                        The nationality requirement for ‘qualified private security
— Breach of Articles 4(c) and 95 of the ECSC Treaty inasmuch            guards’ constitutes an obstacle to freedom of movement for
     as the Court of First Instance held that Article 95 of the         workers contrary to Article 48 of the EC Treaty (now, after
     Treaty was not applicable to the State aids in question            amendment, Article 39 EC).
     where the requirements were not met for the applicability
     of the derogation under the Fifth Aid Code.                        The requirement of possession of Italian nationality restricts,
                                                                        furthermore, the right of any natural or legal person belonging
— Failure to state grounds for the judgment and misapplica-             to another Member State to work in Italy, contrary to
     tion of Community law inasmuch as the Court did not rule           Article 52 of the EC Treaty (now, after amendment, Article 43
     on the unlawfulness of Article 4(2) of the Fifth Code in           EC) on the freedom of establishment. So far as concerns legal
     relation to Article 4(c) of the ECSC Treaty.                       persons, Article 134 of the Consolidated Legislation on Public
                                                                        Security restricts the right to pursue such activity by means of
                                                                        a branch or agency, as expressly provided for in Article 43 EC.
— Breach and eroneous, illogical, irrational and groundless             Thus, the only way in which it would be possible for a foreign
     application of Article 4(2), second indent, of Commission          undertaking to establish itself in Italy would be by setting up a
     Decision 3855/91 (1).                                              subsidiary company under Italian law. Natural persons who
                                                                        are non-Italian Community citizens, on the other hand, are
— Breach, erroneous and groundless application of the                   precluded under Article 138 of the Consolidated Legislation on
     decision of the Commission of 12 December 1994; mis-               Public Security from establishing themselves as self-employed
     taken assumptions; mistaken investigation.                         ‘qualified private security guards’.
 ---pagebreak--- C 281/10              EN                    Official Journal of the European Communities                                     2.10.1999
The nationality requirement laid down in Article 134 the               represented by Hendrik van Lier and Léna Ström, Legal
Consolidated Legislation on Public Security thus cannot be             Advisers, acting as Agents, with an address for service in
imposed on service providers established in other countries.           Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Such an obstacle is discriminatory and therefore contrary to           Centre, Kirchberg.
Article 59 of the EC Treaty (now, after amendment, Article 49
EC). The effect of such legislation is to deny undertakings            The Commission of the European Communities claims that
established in other countries of the Community any chance             the Court should:
of providing security services in Italy so long as they retain a
head office in another country.                                        — declare that, by failing to adopt the measures necessary in
                                                                            order to ensure complete and correct transposition of
                                                                            Council Directive 89/369/EEC of 8 June 1989 on the
                                                                            prevention of air pollution from new municipal waste
                                                                            incineration plants (1) and Council Directive 89/429/EEC
                                                                            of 21 June 1989 on the reduction of air pollution from
                                                                            existing municipal waste-incineration plants (2), the
                                                                            Kingdom of Belgium has failed to fulfil its obligations
Reference for a preliminary ruling by the Landesgericht                     under Articles 6 and 8 of Directive 89/369/EEC and
Korneuburg (Austria) by order of 5 July 1999 in the case                    Articles 2, 6 and 7 of Directive 89/429/EEC;
 of New Yorker S.H.K. Jeans GmbH v Ing. Jaroslav Kupco                 — order the Kingdom of Belgium to pay the costs.
                        (Case C-284/99)
                                                                       Pleas in law and main arguments
                        (1999/C 281/19)                                The Commission proposes to limit the present proceedings to
                                                                       the Brussels-Capital Region.
Reference has been made to the Court of Justice of the
European Communities by order of 5 July 1999 from the                  In relation to Directive 89/369/EEC, the Commission refers to
Landesgericht Korneuburg (Regional Court, Korneuburg) (Aus-            a series of respects in which the rules applying to Brussels are
tria), which was received at the Court Registry on 29 July             not in conformity with the directive, particularly as regards the
1999, for a preliminary ruling in the case of New Yorker               absence of any obligation on the authorities requiring them to
S.H.K. Jeans GmbH v Ing. Jaroslav Kupco on the following               take action in the event that standards are exceeded and the
question:                                                              absence of any detailed provisions regarding the obligations
                                                                       incumbent on undertakings.
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                  In relation to Directive 89/429/EEC, the Commission declares
down measures to prohibit the release for free circulation,            that Articles 6(3) to (5) and 7(1) and (2) of the directive have
export, re-export or entry for a suspensive procedure of               not been transposed.
counterfeit and pirated goods (1) also applicable to situations
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European            (1) OJ L 163 of 14.6.1989, p. 32.
                                                                       (2) OJ L 203 of 15.7.1989, p. 50.
Community, temporarily detained by customs authorities in a
Member State on the basis of that regulation, at the request of
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
(1) OJ L 341 of 30.12.1994.                                            Appeal brought on 3 August 1999 by Schiocchet, a
                                                                       company incorporated under French law, against the
                                                                       order made on 21 May 1999 by the First Chamber of the
                                                                       Court of First Instance of the European Communities in
                                                                       Joined Cases T-169/98 and T-170/98 between Schiocchet
                                                                           and the Commission of the European Communities
                                                                                (Case C-289/99 P)
Action brought on 30 July 1999 by the Commission
of the European Communities against the Kingdom of                                             (1999/C 281/21)
                            Belgium
                                                                       An appeal against the order made on 21 May 1999 by the
                        (Case C-287/99)                                First Chamber of the Court of First Instance of the European
                                                                       Communities in Joined Cases T-169/98 and T-170/98 between
                                                                       Schiocchet and the Commission of the European Communities
                        (1999/C 281/20)                                was brought before the Court of Justice of the European
                                                                       Communities on 3 August 1999 by Schiocchet, represented
An action against the Kingdom of Belgium was brought before            by Pascal Barbier, of the Thionville Bar, with an address for
the Court of Justice of the European Communities on 30 July            service in Luxembourg at the offices of the Viva Vacances
1999 by the Commission of the European Communities,                    agency, 33 Rue de Strasbourg.


title: Case T-85/99: Action brought on 13 April 1999 by Gastone Parigi against the European Parliament

text:
5.6.1999              EN                       Official Journal of the European Communities                                   C 160/31
— breach of legitimate expectations and the principles of                 Action brought on 13 April 1999 by Gastone Parigi
    legal certainty and of proper publication of measures in                             against the European Parliament
    that amendment of 13 September 1995 had not been
    brought to the notice of the Members concerned. In this
                                                                                (Case T-85/99)
    connection, the applicant also alleges infringement of
    article 27 (1) of the Rules Governing the Payment of
    Expense and Allowances to Members,                                                            (1999/C 160/57)
— breach of the principle of non-discrimination, as may be
    seen from a comparison between the applicant’s position                                  (Language of the case: Italian)
    and that of colleagues sitting in the national parliament or
    that of Italian Members who have taken their seats during
    the current parliamentary term.                                       An action against the European Parliament was brought before
                                                                          the Court of First Instance of the European Communities on
                                                                          13 April 1999 by Gastone Parigi, represented by Wilma
Lastly the applicant pleads breach of the requirement to state            Viscardini Donà, assisted by Gabriela Donà, both of the Padua
reasons, of the duty to have regard for the welfare of officials          Bar, with an address for service in Luxembourg at the offices
and of the principle of proper administration.                            of Ernest Arendt,8-10, rue Mathias Hardt.
                                                                          The applicant claims that the Court should:
                                                                          — annul, pursuant to article 173 of the EC Treaty, after
                                                                              holding, pursuant to article 184 of the EC Treaty, that the
                                                                              period of six months laid down in article 3 (1) of Annex
Action brought on 13 April 1999 by Leoluca Orlando                            III to the ‘Rules Governing the Payment of Expenses and
               against the European Parliament                                Allowances to Members’ is inapplicable, the decision of
                                                                              the Council of quaestors of 4 February 1999, reference No
                                                                              300761, rejecting Mr Gastone Parigi’s request for the
                         (Case T-84/99)
                                                                              provisional pension scheme referred to in the said Annex
                                                                              to apply with retroactive effect as from the beginning of
                        (1999/C 160/56)                                       the current parliamentary term,
                                                                          — order the European Parliament to pay the costs of the
                   (Language of the case: Italian)                            proceedings.
An action against the European Parliament was brought before
the Court of First Instance of the European Communities on                Pleas in law and main arguments
13 April 1999 by Leoluca Orlando represented by Wilma
Viscardini Donà, assisted by Gabriela Donà, both of the Padua
                                                                          The pleas in law and main arguments are the same as those
Bar, with an address for service in Luxembourg at the offices
                                                                          raised in Case T-83/99 Ripa di Meana v. Parliament.
of Ernest Arendt, 8-10, rue Mathias Hardt.
The applicant claims that the Court should:
— annul, pursuant to article 173 of the EC Treaty, after
    holding, pursuant to article 184 of the EC Treaty, that the
    period of six months laid down in article 3 (1) of Annex
    III to the ‘Rules Governing the Payment of Expenses and
    Allowances to Members’ is inapplicable, the decision of               Action brought on 14 April 1999 by Vasilios Boukouvalas
    the Council of quaestors of 4 February 1999, reference No                            against the European Parliament
    300763, rejecting Mr Leoluca Orlando’s request for the
    provisional pension scheme referred to in the said Annex                                       (Case T-88/99)
    to apply with retroactive effect as from the beginning of
    the current parliamentary term,
                                                                                (1999/C 160/58)
— order the European Parliament to pay the costs of the
    proceedings.
                                                                                (Language of the case: Greek)
Pleas in law and main arguments                                           An action against the European Parliament was brought before
                                                                          the Court of First Instance of the European Communities on
The pleas in law and main arguments are the same as those                 14 April 1999 by Vasilios Boukouvalas, an official of the
raised in Case T-83/99 Ripa di Meana v. Parliament.                       European Parliament, resident in Brussels, represented by
                                                                          Professor Kharis Tagaras, of the Thessaloniki Bar, with an
                                                                          address for service in Luxembourg at the office of Véronique
                                                                          Duhaubois, 139, rue Schetzel, L-2518 Luxembourg.


title: Case T-684/15 P: Appeal brought on 27 November 2015 by Roderich Weissenfels against the judgment of the Civil Service Tribunal of 24 September 2015 in Case F-92/14, Weissenfels v Parliament

text:
               15.2.2016

               EN

               Official Journal of the European Union

               C 59/26

         Appeal brought on 27 November 2015 by Roderich Weissenfels against the judgment of the Civil Service Tribunal of 24 September 2015 in Case F-92/14, Weissenfels v Parliament
   (Case T-684/15 P)
   (2016/C 059/28)
   Language of the case: German

      Parties

      Appellant: Roderich Weissenfels (Freiburg, Germany) (represented by G. Maximini, lawyer)

      Other party to the proceedings: European Parliament

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment;

               —

               grant the form of order sought at first instance and

               —

               consequently order the Parliament to pay the damages for non-material harm sought and to pay the costs of proceedings at both instances, including those of the pre-litigation procedure and all necessary expenses and disbursements of the appellant.

      Pleas in law and main arguments

   By means of the present appeal, the appellant seeks the setting aside of the judgment of the Civil Service Tribunal of 24 September 2015 in Weissenfels v Parliament (F-92/14, ECR-SC, EU:F:2015:110).
   In support of the appeal, the appellant relies on four pleas in law.

               1.

               First plea in law: Breach of the requirement of impartiality (the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union)
               The appellant asserts that both the judicial proceedings which led to the judgment under appeal and the judgment itself are consistently characterised by recurrent breaches of the requirement of impartiality. Those breaches are obvious in both subsidiary proceedings and in breaches of law which are relevant for the decision.

               2.

               Second plea in law: Denial of justice, infringement of the principles of logic and distortion of the facts with regard to the refusal to have the fulfilment of criminal offences examined

               3.

               Third plea in law: Infringement of the principles of logic, distortion of the facts and manifestly incorrect assessment in respect of the disputed slanderous claim contained in the e-mail of 10 April 2002

               4.

               Fourth plea in law: Distortion of the facts and of the subject-matter of the proceedings, infringement of the principles of logic, disregard for the law and breach of law with regard to the passing on of the appellant’s personal data


title: Case C-366/09: Order of the President of the Court of 3 September 2010 — European Commission v Italian Republic

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/19

         Order of the President of the Court of 3 September 2010 — European Commission v Italian Republic
   (Case C-366/09) (1)

   ()
   2010/C 301/28
   Language of the case: Italian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 256, 24.10.2009.


title: Action brought on 10 July 1998 by the Commission of the European Communities against the Kingdom of Belgium (Case C-253/98)

text:
C 278/24              EN                 Official Journal of the European Communities                                     5.9.98
Pleas in law and main arguments adduced in support:                 Ð order the Kingdom of Belgium to pay the costs.
                                                                    Pleas in law and main arguments adduced in support:
The Commission considers that the principles developed
by the case-law cited in its claim apply to professions and
situations which fall within the scope of general system'          The pleas in law and main arguments are analogous to
Directives or sectorial' Directives but in which the               those in Case C-250/98 (2); the time limit prescribed for
conditions needing to be fulfilled under those Directives in        the transposition of the Directive expired on 1 February
order to enjoy recognition have not been complied with.             1997.
Even where a Directive concerning the mutual recognition
of diplomas does not apply, the Member States are obliged
to ensure freedom of movement for migrant workers,                  (1) OJ L 196, 7.8.1996, p. 8.
                                                                    (2) See page 22 of this Official Journal.
whether they are employed or self-employed. It would be
inconsistent for Directives which are designed to provide
for mutual recognition to have a restrictive effect on
freedom of establishment by denying a Community
national holding a diploma which does not fulfil the
conditions laid down by those Directives the possibility of
relying on the Vlassopoulou case-law when he could
certainly have done so in the absence of such Directives.           Reference for a preliminary ruling by the Oberste
                                                                    Gerichtshof, Austria by judgment of that court of 30 June
                                                                    1998 in the case of Schutzverband gegen unlauteren
(1) Judgment of 15 October 1987 in Case 222/86 Heylens [1987]             Wettbewerb against TK-Heimdienst Sass GmbH
    ECR p. 4097.
(2) Judgment of 7 May 1991 in Case C-340/89 Vlassopoulou                                    (Case C-254/98)
    [1991] ECR I-2357.                                                                        (98/C 278/43)
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by judgment of the Oberste
                                                                    Gerichtshof (Supreme Court), Austria, received at the
                                                                    Court Registry on 13 July 1998, for a preliminary ruling
Action brought on 10 July 1998 by the Commission of the             in the case of Schutzverband gegen unlauteren Wettbewerb
  European Communities against the Kingdom of Belgium               against TK-Heimdienst Sass GmbH on the following
                                                                    question:
                       (Case C-253/98)
                        (98/C 278/42)
                                                                    Is Article 30 of the EC Treaty to be interpreted as
                                                                    precluding legislation under which bakers, butchers and
                                                                    grocers may not offer for sale on rounds from locality to
An action against the Kingdom of Belgium was brought                locality or from door to door goods which they are
before the Court of Justice of the European Communities             entitled to sell under the terms of their trading licence
on 10 July 1998 by the Commission of the European                   unless they also carry on their trade from fixed business
Communities, represented by Frank Benyon, Legal                     premises situated in the administrative district in which
Adviser, and Bernard Mongin, of its Legal Service, acting           they offer the goods for sale in the abovementioned
as Agents, with an address for service in Luxembourg at             manner or in a municipality adjacent thereto, and
the office of Carlos Gómez de la Cruz, Wagner Centre,               furthermore may offer for sale on rounds from locality to
Kirchberg.                                                          locality or from door to door only such goods as are also
                                                                    offered for sale at the said fixed business premises?
The Commission of the European Communities claims
that the Court should:
Ð declare that, by failing to adopt the laws, regulations           Action brought on 14 July 1998 by the Kingdom of Spain
     and administrative measures necessary in order to                 against the Commission of the European Communities
     comply with Commission Directive 96/40/EC of                                           (Case C-255/98)
     25 June 1996 establishing a common model for an
     identity card for inspectors carrying out port State                                     (98/C 278/44)
     control (1), alternatively by failing within the
     prescribed time limit to communicate the measures
     necessary to comply therewith, the Kingdom of                  An action against the Commission of the European
     Belgium has failed to fulfil its obligations under             Communities was brought before the Court of Justice of
     Article 2 of that Directive and under the EC Treaty,           the European Communities on 14 July 1998 by the


title: Case T-384/11 R: Order of the President of the General Court of 28 September 2011 — Safa Nicu Sepahan v Council (Application for interim measures — Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds and economic resources — Application for interim measures — Lack of urgency)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/34

         Order of the President of the General Court of 28 September 2011 — Safa Nicu Sepahan v Council
   (Case T-384/11 R)
   (Application for interim measures - Common foreign and security policy - Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation - Freezing of funds and economic resources - Application for interim measures - Lack of urgency)
   2011/C 347/61
   Language of the case: English

      Parties

      Applicant: Safa Nicu Sepahan Co. (Isfahan, Iran) (represented by: A. Bahrami, lawyer)

      Defendant: Council of the European Union (represented initially by: A. Vitro and R. Liudvinaviciute-Cordeiro, and subsequently by: R. Liudvinaviciute-Cordeiro and I. Gurov, acting as Agents)

      Re:

   Application for interim measures, including suspension of operation of point 19 of Table B of Annex I to Council Implementing Regulation (EU) No 503/2011 of 23 May 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 136, p. 26), in so far as the list of persons and entities whose funds and economic resources are frozen includes an entity designated under the name of ‘Safa Nicu’.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Case T-79/10: Judgment of the General Court of 16 September 2013 — Colt Télécommunications France v Commission (State Aid — Compensation for public service costs in connection with a very high-speed broadband electronic communications network in the Hauts-de-Seine department — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/16

         Judgment of the General Court of 16 September 2013 — Colt Télécommunications France v Commission
   (Case T-79/10) (1)

   (State Aid - Compensation for public service costs in connection with a very high-speed broadband electronic communications network in the Hauts-de-Seine department - Decision finding no State aid - Failure to initiate the formal investigation procedure - Serious difficulties)
   2013/C 336/31
   Language of the case: French

      Parties

      Applicant: Colt Télécommunications France (Paris, France) (represented by: M. Debroux, lawyer)

      Defendant: European Commission (represented by: B. Stromsky and C. Urraca Caviedes, acting as Agents)

      Interveners in support of the defendant: The French Republic (represented: initially by G. de Bergues and J. Gstalter, and subsequently by D. Colas, J. Bousin and J. S. Pilczer, acting as Agents); Sequalum SAS (Puteaux, France) (represented by: L. Feldman, lawyer); and the Hauts-de-Seine department (France) (represented by: J. D. Bloch and G. O’Mahony, lawyers)

      Re:

   Application for annulment of Commission Decision C(2009) 7426 final of 30 September 2009 concerning the compensation for public service costs for the establishment and operation of a very high speed broadband electronic communications network in the Hauts-de-Seine department (State Aid N 331/2008 — France).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Colt Télécommunications France to bear its own costs and to pay those incurred by the European Commission;

               3.

               Orders the French Republic, Sequalum SAS and the Hauts-de-Seine department to pay their own costs.

      (1)  OJ C 113, 1.5.2010.


title: Reference for a preliminary ruling by the Tribunale di Treviso by order of that court of 10 June 1998 in the case of Amministrazione delle Finanze dello Stato v. Fallimento Ditta Schiavon Silvano (Case C-230/98)

text:
5.9.98                EN                 Official Journal of the European Communities                                 C 278/17
Reference for a preliminary ruling by the Tribunale di              multiplication coefficient used for setting the tax payable
Treviso by order of that court of 10 June 1998 in the case          for each band of vehicular fiscal horsepower increases
of Amministrazione delle Finanze dello Stato v. Fallimento          unevenly, without reference to any objective criteria, so
                    Ditta Schiavon Silvano                          that the rise in tax is clearly linear up to the 18 CV tax
                       (Case C-230/98)                              band but then becomes sharply exponential from the
                                                                    19 CV band, this being the first band in which there is no
                         (98/C 278/27)                              vehicle of domestic manufacture?
Reference has been made to the Court of Justice of the
European Communities by an order of the Tribunale di
Treviso (District Court, Treviso), which was received at
the Court Registry on 30 June 1998, for a preliminary
ruling in the case of Amministrazione delle Finanze dello           Reference for a preliminary ruling from the Bundesfinanz-
Stato (State Finance Administration) v. Receiver in                 hof, by order of that court of 28 April 1998, in the case of
bankruptcy of the firm Schiavon Silvano, on the follwing            Hauptzollamt Neubrandenburg v. Lensing & Brockhausen
questions:                                                                                GmbH
                                                                                (Case C-233/98)
1. Whether Article 1 of Council Regulation (EEC)                                             (98/C 278/29)
    No 545/92 (1) must be regarded as immediately
    conferring upon Community citizens a subjective right
    to relief from duty and tax on imports, with the result         Reference has been made to the Court of Justice of the
    that, in the absence of any indication of the authority         European Communities by order of the Bundesfinanzhof
    empowered to issue certificates of origin in the case of        (Federal Finance Court) of 28 April 1998, received at the
    certain former Yugoslav Republics, that right                   Court Registry on 2 July 1998, for a preliminary ruling in
    continues to exist even where a certificate has been            the case of Hauptzollamt Neubrandenburg v. Lensing &
    issued by the body previously authorised, until such            Brockhausen GmbH on the following questions:
    time as the new body is designated;
                                                                    1. Is the first subparagraph of Article 36(3) of Council
2. Whether, on the contrary, the list in Annex I to                     Regulation (EEC) No 222/77 (1) in conjunction with
    Commission Regulation (EEC) No 859/92 (2) is                        Article 11a(2) of Commission Regulation (EEC)
    exhaustive and deprives the Savezni Trzisni                         No 1062/87 (2) to be interpreted as meaning that, in
    Inspektorat of any authority to issue certificates.                 the event of a failure to produce a consignment at the
                                                                        office of destination, the Member State of departure
(1) OJ L 63, 7.3.1992, p. 1.                                            has jurisdiction to levy import taxes only where the
(2) OJ L 89, 4.4.1992, p. 26.                                           period of three months laid down in the second
                                                                        subparagraph of Article 11a(2) of Regulation (EEC)
                                                                        No 1062/87 has previously been set for the principal
                                                                        and he has not furnished the proof required by that
                                                                        provision?
References for a preliminary ruling by the Tribunal de              2. If question 1 is to be answered in the affirmative: Is
Grande Instance d'Epinal by judgments of that court of                  the third subparagraph of Article 36(3) of Regulation
25 June 1998 in the cases of Lomboley SA and Mr ReneÂ                   (EEC) No 222/77 to be interpreted as meaning that it
  Bouctot respectively against l'Administration des Impôts              is to be applied also in a case in which a customs
               (Cases C-231/98 and C-232/98)                            office of the Member State of departure has levied
                                                                        taxes due in respect of goods cleared for the transit
                         (98/C 278/28)                                  procedure but has not set a time limit in accordance
                                                                        with the second subparagraph of Article 11a(2) of
                                                                        Regulation (EEC) No 1062/87, the result being that
Reference has been made to the Court of Justice of the                  the Member State of departure may refund the taxes
European Communities by judgments of the Tribunal de                    which it has assessed and levied without jurisdiction
Grande Instance d'Epinal (Regional Court, Epinal), of                   only where it is proved that the Member State in
25 June 1998, received at the Court Registry on 2 July                  which the offence or irregularity actually took place
1998, for a preliminary ruling in the cases of Lamboley                 has levied the taxes? Is a distinction to be drawn
SA and Mr ReneÂ Bouctot respectively against                            between taxes levied as own resources of the
l'Administration des Impôts (the Tax Authority) on the                  Community and other (national) taxes?
following question:
                                                                    (1) OJ L 38, 9.2.1977, p. 1.
                                                                    (2) OJ L 107, 22.4.1987, p. 1.
Is Article 95 of the EC Treaty to be interpreted as
precluding the application of legislation introducing a
system for taxing motor vehicles under which the


title: Case C-274/99 P: Appeal brought on 20 July 1999 by Mr B. Connolly against the judgment delivered on 19 May 1999 by the First Chamber of the Court of First Instance of the European Communities in Joined Cases T-34/96 and T-163/96 between Mr Connolly and the Commission of the European Communities

text:
C 299/8               EN                    Official Journal of the European Communities                                  16.10.1999
Appeal brought on 12 July 1999 by Karola Gluiber against               Appeal brought on 20 July 1999 by Mr B. Connolly
the order made on 5 May 1999 by the First Chamber of                   against the judgment delivered on 19 May 1999 by the
the Court of First Instance of the European Communities                First Chamber of the Court of First Instance of the
in Case T-190/98 Karola Gluiber versus Council of the                  European Communities in Joined Cases T-34/96 and
European Union and Commission of the European Com-                     T-163/96 between Mr Connolly and the Commission of
                            munities                                                     the European Communities
                       (Case C-259/99 P)
                                                                                (Case C-274/99 P)
                        (1999/C 299/08)
An appeal against the order made on 5 May 1999 by the First                                    (1999/C 299/09)
Chamber of the Court of First Instance of the European
Communities in Case T-190/98 Karola Gluiber versus Council
of the European Union and Commission of the European                   An appeal against the judgment delivered on 19 May 1999 by
Communities was brought before the Court of Justice of the             the First Chamber of the Court of First Instance of the
European Communities on 12 July 1999 by Karola Gluiber,                European Communities in Joined Cases T-34/96 and T-163/96
represented by Jean-Claude Schöninger, Rechtsanwalt, of                between Mr B. Connolly and the Commission of the European
Mühlgasse 6, D-77933 Lahr.                                             Communities was brought before the Court of Justice of the
                                                                       European Communities on 20 July 1999 by Mr Connolly,
The appellant claims that the Court should:                            represented by Jacques Sambon and Pierre-Paul van Gehuch-
                                                                       ten, both of the Brussels Bar, with an address for service in
(1) set aside the order made by the Court of First Instance of         Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort
    the European Communities on 5 May 1999 in Case                     Rheinsheim.
    T-190/98;
(2) order the respondent to pay the appellant compensation             The appellant claims that the Court should:
    in the sum of DM 25 700 .32 for the costs incurred by her
    in unsuccessful legal proceedings before the German courts
    and the Court of Justice;
                                                                       Set aside the judgment of the Court of First Instance of the
(3) order the respondents to pay the appellant damages in              European Communities of 19 May 1999 in Joined Cases
    respect of non-contractual liability;                              T-34/96 and T-163/96
(4) order the respondent to pay the costs of the present
    proceedings;
                                                                       and uphold the actions by the applicant in which he sought:
(5) declare that the Community is required to pay compen-
    sation, even in the future, for the damage caused by illegal
    acts perpetrated hitherto;                                         — annulment in so far as necessary of the opinion of the
                                                                           Disciplinary Board of 7 December 1995, notified on
(6) alternatively, stay the proceedings pursuant to Article                15 December, recommending that the applicant be penal-
    82a(1)(b) of the Rules of Procedure of the Court of Justice            ised by removal from his post without reduction or
    in order to enable a preliminary ruling to be obtained from            withdrawal of pension rights;
    the European Court of Human Rights concerning the
    finding that the incomplete transposition into German law
    of Council Directive 76/207/EEC infringes, as regards the          — annulment of the Commission’s decision of 16 January
    appellant;                                                             1996 imposing upon the applicant the penalty of removal
                                                                           from his post without reduction or withdrawal of pension
    (a) Article 6 of the European Convention on Human                      rights;
         Rights (‘ECHR’);
    (b) Article 11 of the ECHR;                                        — annulment of the express rejection of 12 July 1996,
                                                                           notified to the applicant by letter of 18 July 1996, of his
    (c) Article 14 of the ECHR; and                                        pre-litigation action of 7 March 1996 against the opinion
                                                                           of the Disciplinary Board and the decision of the Com-
    (d) Article 50 of the ECHR.                                            mission referred to above;
Pleas in law and main arguments                                        — an order that the Commission pay him, subject to increase
— failure to observe the appellant’s right to     a fair hearing,          or decrease in the course of the proceedings, the sum of
    since the application was dismissed           as manifestly            FB 7 500 000 for material damage and the sum of FB
    unfounded pursuant to Article 111 of           the Rules of            1 500 000 for non material damage by way of compen-
    Procedure of the Court of First Instance      without being            sation for the damage suffered by reason of the illegalities
    served on the respondents;                                             and irregularities complained of.
— infringement of substantive law.
                                                                       And order the Commission to pay the whole of the costs of
                                                                       the two sets of proceedings.
 ---pagebreak--- 16.10.1999             EN                    Official Journal of the European Communities                                       C 299/9
Pleas in law and main arguments                                            The grounds relied on under Article 12 of the Staff
                                                                           Regulations are not sufficient to justify the removal of the
                                                                           applicant from his post from the standpoint of Article 10
                                                                           ECHR. To penalise the expression of a ‘fundamental
— Infringement of Article 6(2) (ex Article F) of the Treaty on             opposition’ to the policy of the Commission amounts to
    European Union, of Article 10 of the European Convention               prosecution for one’s beliefs. It is obvious that the mere
    for the Protection of Human Rights and Fundamental                     removal of the applicant from his post was not enough,
    Freedoms (ECHR), of freedom of expression as laid down                 on the Commission’ argument, to defend the interests of
    by the constitutional traditions common to the Member                  the institutions and the persons challenged in his work, if
    States, of Articles 2, 220 (ex 164), 236 (ex 179) and                  not accompanied by measures aimed at preventing the
    225 (ex 168a) of the Treaty establishing the European                  distribution of the work itself. It does not appear that any
    Community, of Articles 12, 17, 86 and 91 of the Staff                  such measures have been adopted by the Commission in
    Regulations, and of the prohibition on the substitution of             the form, for example, of legal proceedings to prevent the
    reasoning: The restrictions which Article 17 of the Staff              sale of the work in Member States in whole or in part,
    Regulations permits to be placed upon officials’ exercise of           and to seize the stock already published. Nor did the
    their freedom of expression must still be subject to a                 Commission consider that it needed to bring an action
    balancing of the interests at stake and comply with the                under Article 22 or 23 of the Staff Regulations.
    principles in the above provisions. The contested judgment
    merely stases that censorship before the event under
    Article 17 is to the advantage of a public servant since it
    shelters him from a penal disciplinary measure afterwards.             Finally, by not taking into consideration the fact that the
    That argument not only misrepresents the scope of                      Commission expressly recognises that it did not at any
    Article 10 ECHR, but it also conflicts with the shared                 time rely on one of the exceptions mentioned in Article
    constitutional traditions (and infringes Article 6, ex Article         10(2) and that none of the situations to which that
    F, of the TEU), which, on the contrary, see in the penal               provision might apply existed in the present case, the
    system after the event an essential guarantee of freedom               Court of First Instance disregards the fact that the Com-
    of expression in relation to the system of censorship                  mission did not examine the admissibility of the decision
    beforehand. Therefore, in so far as that system of a priori            taken in the light of the criteria in Article 10 ECHR, with
    censorship is upheld by the Court of First Instance, the               the result that the contested judgment misassesses the
    scope of the freedom of expression as laid down in the                 scope of Article 10 ECHR and infringes the obligation to
    principles referred to in the plea, in relation to Articles 17         state reasons.
    and 12, has been infringed.
                                                                        — Insufficient reasons for the judgment; misinterpretation of
    The concepts of ‘prejudicing the interests of the Communi-             the second paragraph of Article 17 and of Article 35 of
    ties’ (Article 17 of the Staff Regulations) and ‘reflecting on         the Staff Regulations; infringement of the legal rules on the
    his position’ (Article 12 of the Staff Regulations) go far             adducing and burden of proof; failure to give due weight
    beyond the scope of the objectives which are admissible                to acts; infringement of the principle of the protection
    having regard to Article 10(2) ECHR, and cannot as such                of legitimate expectations: The Court of First Instance
    attach to any of the objectives which that provision                   misassesses the scope of the second paragraph of Article
    limitatively enumerates.                                               17 and Article 35 of the Staff Regulations, inasmuch as
                                                                           Article 17 does not apply to officials on leave on personal
                                                                           grounds.
    The terms in the second paragraph of Article 17 of
    the Staff Regulations (‘dealing with the work of the
    Communities’ and ‘liable to prejudice the interests of the             The Court of First Instance has distorted the plea of the
    Communities’) are particularly general and vague and do                applicant which relied not on ‘a general practice’ of the
    not satisfy the requirement of legality and foreseeability. In         Commission, but on a practice ‘within DG II’ in offering as
    any event, that requirement cannot be brought down to                  proof a statement of the former director general in his
    the existence of precedents. Moreover, the Court of First              capacity as the appointing authority for the granting of
    Instance misassessed the scope of Article 10 ECHR by                   leave on personal grounds.
    maintaining without further elaboration that the refusal
    decision was open to legal challenge, whereas the length
    of the procedure (pre-litigation and then litigation) may
    be estimated al some 25 months and the Community                    — Insufficient reasons for the judgment; infringement of
    judicature, not having unlimited jurisdiction, can never               Article 6(2) (ex Article F) of the TEU, infringement of
    grant the authorisation requested or even direct the                   Article 30 (ex Article 36) of the Treaty establishing the
    authority to grant it.                                                 European Community; infringement of the first additional
                                                                           protocol to the ECHR; misinterpretation of Article 11
                                                                           of the Staff Regulations: Royalties do not constitute
                                                                           remuneration not being capable of being drawn, by an
    The contested judgment does not examine whether this                   official, on behalf of an external person in consideration of
    was a case of an imperative social need and whether the                a service rendered. The Court of First Instance was wrong
    disputed intervention was proportionate to that end.                   to take the view that its interpretation of Article 11 of the
 ---pagebreak--- C 299/10              EN                    Official Journal of the European Communities                                    16.10.1999
   Staff Regulations did not lead to an infringement of the                 before the Commission and the pleadings and supplemen-
   right to property. Finally, the Court of First Instance                  tary pleadings presented by the applicant before the
   misinterprets the scope of Article 11 of the Staff Regu-                 Disciplinary Board.
   lations in that it distorts the system established by that
   provision by making it subject to the system of prior               — Lack of reasoning; failure to reply to the plea for annulment;
   authorisation under Article 17.                                          misinterpretation of the second paragraph of Article 87 of
                                                                            the Staff Regulations.
                                                                       — Infringement of the legal rules governing the proof of facts
                                                                            and the burden of proof; lack of reasoning; misinterpret-
— Infringement of Article 6(2) (ex Article F) of the TEU,                   ation of Articles 3, 6 and 7 of Annex IX to the Staff
   Article 10 ECHR, Articles 116 point 3 (ex 109 E3), 177.2                 Regulations; failure to give due weight to acts, particularly
   (ex 109 F2), 121 (ex 109 J), 220 (ex 164a), 225 (ex 168a)                the minutes of the first meeting of the Disciplinary Board
   and 236 (ex 179) of the EC Treaty, and of Articles 12, 87                and the Commission’s defence.
   and 91 of the Staff Regulations and Annex IX thereto,
   more particularly in Article 1 of the latter, and of the            — Infringement of Articles 164, 168a and 179 of the
   prohibition on the substitution of reasoning, failure to give            EC Treaty and of Article 91 of the Staff Regulations;
   due weight to acts and infringement of the rules governing               infringement of the rules on the burden of proof and on
   the adducing of evidence: The Court of First Instance                    the method and admissibility of evidence; infringement of
   infringed the above provisions by taking account of certain              the rights of the defence and of the prohibition of reliance
   references in the applicant’s book on the (unjustified)                  by the court on all facts known to it personally.
   reading of them by the Commission, without having regard
   to, or giving reasons for its rejection of the objections put       — Inadequate reasoning for the judgment and failure to reply
   forward by the applicant relating to the fact that, by so                to the pleas in the action for annulment.
   doing, the Commission continues to feed the disciplinary
                                                                       — Lack of reasoning.
   inquiry in the adversarial stage of the dispute.
— Insufficient reasons for the judgment; failure to give due
   weight to acts, particularly the report of the appointing           Reference for a preliminary ruling by the Hessische
   authority and the minutes of the hearing of the applicant           Finanzgericht by order of that court of 11 March 1999 in
   before the Disciplinary Board; lack of reasoning; infringe-         the case of vauDe Sport Albrecht von Dewitz against
   ment of the rights of the defence; failure to respond to            Oberfinanzdirektion Koblenz, ZuVA-Außenstelle Frank-
   pleas; flawed logic in reasoning: The applicant argues that,                                   furt am Main
   in holding that the Commission’s report included the
   contents of the book amongst the facts of which he stood                                     (Case C-288/99)
   accused, meaning the expression of an economic argument
   at odds with the line of action adopted by the Commission                                    (1999/C 299/10)
   as an institution of the European Union, the Court of First
   Instance fails to give due weight to the Commission report
                                                                       Reference has been made to the Court of Justice of the
   which referred to ‘derogatory and unsubstantiated attacks’          European Communities by order of the Hessische Finanzge-
   and commits an error of logic in giving the term ‘contents’         richt (Finance Court, Hessen) of 11 March 1999, received at
   a variable meaning, referring sometimes to allegedly diver-         the Court Registry on 2 August 1999, for a preliminary ruling
   gent economic arguments and sometimes to derogatory
                                                                       in the case of vauDe Sport Albrecht von Dewitz against
   attacks on persons.
                                                                       Oberfinanzdirektion Koblenz, ZuVA-Außenstelle Frankfurt am
                                                                       Main on the following question:
                                                                       Is the term ‘similar containers’ in CN heading 4202 of the
— Failure to give due weight to acts, particularly the minutes         Common Customs Tariff to be interpreted as including a
   of the hearing before the Disciplinary Board and of the             product described as a child carrier consisting essentially of a
   work published by the applicant; infringement of the law            support frame made of aluminium tubing and woven fabric
   on the proof of facts, the burden of proof and the duty to          made of synthetic fibres — assembled by being sewn together
   give a fair hearing; lack of adequate and relevant reasoning        — in which a child may be carried in a seated position on a
   for the judgment; infringement of Articles 220 (ex 164),            person’s back and small items stored under the seat,
   225 (ex 168a) and 236 (ex 179) of the EC Treaty, of
   Articles 87 and 91 of the Staff Regulations and Article 1           or
   of Annex IX thereto. The Court of First Instance was not
   entitled to regard an essential element of the Commission’s         is the aforementioned product to be classified pursuant to
   disciplinary decision (the existence of a conflict of opinion)      General Rule 3(b) among other made up textile articles of
   as an established fact when it did not appear in argument           woven fabric under CN subheading 6307 9099 0990
   from the disciplinary procedure.
                                                                       or
                                                                       is the aforementioned product covered by another heading?
— Insufficient reasons for the judgment; failure to give due
   weight to acts, particularly the minutes of the hearing


title: Reference for a preliminary ruling by the Diikitiko Protodikio Thessalonikis (Fifth Chamber, Three Judges) by judgment of that court of 29 October 1998 in the case of Kapniki Mikhailidis A.E. against the Idrima Kinonikon Asfalision (Case C-441/98)

text:
C 33/4                EN                 Official Journal of the European Communities                                    6.2.1999
down in directives for their transposition. That time-limit             refund to a trader financial charges on the value of
expired on 30 November 1996 without the Italian                         exported goods which must be regarded as levied in
Republic having brought into force the necessary                        breach of Community law, on the basis that it is
provisions in order to comply with the directive referred               established that the person who was required to pay
to in the Commission's application.                                     the charges at issue in fact passed them on to other
                                                                        persons, namely the purchasers of the goods, and it
(1) OJ L 155, 6.7.1995, p. 1.                                           does not follow, nor does the trader claim, that that
(2) OJ L 374, 31.12.1990, p. 1.                                         charge caused an increase in the price of the products
(3) OJ L 183, 29.6.1989, p. 1.                                          and a reduction in the volume of his sales with the
                                                                        result that he suffered subsequent loss?
Reference for a preliminary ruling by the Diikitiko
Protodikio Thessalonikis (Fifth Chamber, Three Judges)
by judgment of that court of 29 October 1998 in the case            Reference for a preliminary ruling by the Diikitiko
of Kapniki Mikhailidis A.E. against the Idrima Kinonikon            Protodikio Thessalonikis (Fifth Chamber, Three Judges)
                           Asfalision                               by judgment of that court of 29 October 1998 in the case
                                                                    of Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                       (Case C-441/98)
                                                                                Asfalision
                        (1999/C 33/05)
                                                                                (Case C-442/98)
                                                                                (1999/C 33/06)
Reference has been made to the Court of Justice of the
European Communities by judgment of the Diikitiko
Protodikio Thessalonikis (Administrative Court of First
Instance, Thessaloniki) (Fifth Chamber, Three Judges) of            Reference has been made to the Court of Justice of the
29 October 1998, received at the Court Registry on                  European Communities by judgment of the Diikitiko
4 December 1998, for a preliminary ruling in the case of            Protodikio Thessalonikis (Administrative Court of First
Kapniki Mikhailidis A.E. against the Idrima Kinonikon               Instance, Thessaloniki) (Fifth Chamber, Three Judges) of
Asfalision (Social Security Institution) on the following           29 October 1998, received at the Court Registry on
questions:                                                          4 December 1998, for a preliminary ruling in the case of
                                                                    Kapniki Mikhailidis A.E. against the Idrima Kinonikon
                                                                    Asfalision (Social Security Institution) on the following
1. Does a charge which is levied by a Member State on               questions:
    domestic goods exported to another Member State in
    proportion to their value constitute a charge having
    equivalent effect to customs duties on exports, having          1. Does a charge which is levied by a Member State on
    regard to the fact that that charge, which is invariably            domestic goods exported to another Member State in
    imposed on a particular category of domestic goods,                 proportion to their value constitute a charge having
    in accordance with objective criteria and within the                equivalent effect to customs duties on exports, having
    framework of a general system of taxation, is not                   regard to the fact that that charge, which is invariably
    imposed on domestic products which are distributed in               imposed on a particular category of domestic goods,
    the home market or on like goods which are imported                 in accordance with objective criteria and within the
    into the country from another Member State?                         framework of a general system of taxation, is not
    Alternatively is the abovementioned proportional                    imposed on domestic products which are distributed in
    contribution payable by tobacco exporters Ð which is                the home market or on like goods which are imported
    levied and credited as income of the IKA, a social                  into the country from another Member State?
    security institution, for the benefit of the Tobacco                Alternatively is the abovementioned proportional
    Workers' Pensions Branch Ð by reason of its                         contribution payable by tobacco exporters Ð which is
    objective, that is to say boosting the financial                    levied and credited as income of the IKA, a social
    resources of the particular insurance branch, not                   security institution, for the benefit of the Tobacco
    inconsistent with Community law, in that it constitutes             Workers' Pensions Branch Ð by reason of its
    in a broader sense a contribution in favour of an                   objective, that is to say boosting the financial
    insurance body for the purpose of achieving the social              resources of the particular insurance branch, not
    security objectives in respect of the particular group of           inconsistent with Community law, in that it constitutes
    workers, who may be employed in undertakings like                   in a broader sense a contribution in favour of an
    the plaintiff's, and are in any event entitled, even by             insurance body for the purpose of achieving the social
    means of the imposition of charges such as the one in               security objectives in respect of the particular group of
    this case, to social security, in accordance with the               workers, who may be employed in undertakings like
    appropriate provisions of the constitution of the                   the plaintiff's, and are in any event entitled, even by
    particular Member State?                                            means of the imposition of charges such as the one in
                                                                        this case, to social security, in accordance with the
2. If the first part of the first question is answered in the           appropriate provisions of the constitution of the
    affirmative, is a Member State in principle obliged to              particular Member State?