title: Case T-174/99: Action brought on 30 July 1999 by Ana Caprile and Others against the Commission of the European Communities

text:
C 281/26               EN                     Official Journal of the European Communities                                     2.10.1999
— order the selection board to pay compensation for the                  — annul any recruitments made by the Commission in
    damage caused, in such amount as the Court shall consider                consequence of competition No COM/A/15/98 and on the
    fair and reasonable;                                                     basis of the lists of suitable candidates published in the
                                                                             Official Journal on 3 July 1999;
— order the selection board to pay the costs, pursuant to
    Article 87 of the Rules of Procedure.                                — order the defendant to pay the costs.
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant contests the decision of the selection board in            The applicants contest, in particular, the manner in which
competition No COM A/12/98 by which it decided, on the                   competition No COM/A/15/98 was conducted and the results
ground that she allegedly lacked the minimum requisite                   thereof. They maintain in that connection that the competition
professional experience, as provided for in the competition              notice provided for two options, namely ‘fraud prevention’
notice, not admit her to the written tests.                              and ‘justice and home affairs’. According to the applicants, the
                                                                         tests in respect of the ‘justice and home affairs’ option related
In support of her claims, the applicant advances the following           very extensively to the combatting of fraud, with the result
pleas:                                                                   that there was discrimination in favour of candidates who had
                                                                         chosen the first option.
— infringement and misapplication of Article III(3) of the
    notice of competition;                                               In support of their claims, the applicants plead:
— breach of the obligation to provide a statement of reasons;            — infringement of the terms of the competition notice;
    and
                                                                         — contravention of the principle of equality between candi-
— failure to have regard to the general principle of sound                   dates;
    administration and transparency.
                                                                         — failure to observe the principle of sound administration;
According to the applicant, the competition notice recognised                and
as valid evidence of professional experience periods of appren-          — misuse of powers in the present case.
ticeship, specialisation or professional training, apart from
supplementary training periods. She maintains in that regard
                                                                         In the latter regard, the applicants maintain that the defendant
that the Commission failed to take account of all the certificates
                                                                         used the procedure for pre-selection on the basis of the
and attestations contained in the competition file. At all events,
                                                                         documentation in order to attempt to eliminate the partici-
had the defendant considered that documentation was unclear,
                                                                         pation of Mr Mazuel as a candidate in the competition. In
it should at least have asked for explanatory clarification in
                                                                         addition, it is clear from a comparison between the directory
relation to it.
                                                                         of Commission staff and the names of the persons included in
                                                                         the list of suitable candidates that the competition was
                                                                         organised with a view to offering establishment to contractual
                                                                         agents of the Commission and not with a view to the
                                                                         external recruitment of true specialists possessing skills and
                                                                         qualifications corresponding to the objectives publicised in the
                                                                         notice of competition.
Action brought on 29 July 1999 by Gilbert Elkaïm and
Philippe Mazuel against the Commission of the European
                          Communities
                         (Case T-173/99)
                         (1999/C 281/49)                                 Action brought on 30 July 1999 by Ana Caprile and
                                                                         Others against the Commission of the European Com-
                                                                                munities
                   (Language of the case: French)
                                                                                (Case T-174/99)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                        (1999/C 281/50)
European Communities on 29 July 1999 by Gilbert Elkaïm
residing in Paris, and Philippe Mazuel, residing in Brussels,
represented by Nicolas Ravailhe, of the Brussels Bar, with an                               (Language of the case: French)
address for service at the latter’s Chambers, 6 Rue Hydraulique,
Brussels.                                                                An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
The applicants claim that the Court should:                              European Communities on 30 July 1999 by Ana Caprile,
— annul open competition No COM/A/15/98;                                 residing in Belgium, Fabrizio Dell’Olio, residing in Italy, and
                                                                         Konrad Fuhrmann and Olivier Radelet, residing in Belgium,
— annul the lists of suitable candidates published, following            represented by Georges Vandersanden and Laure Levi, of the
    that competition, on 3 July 1999 in the Official Journal (OJ         Brussels Bar, with an address for service in Luxembourg at the
    C 187, p. 22);                                                       offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
 ---pagebreak--- 2.10.1999              EN                      Official Journal of the European Communities                                       C 281/27
The applicants claim that the Court should:                               In support of its claim, the applicant submits that the contested
                                                                          decision:
— annul the decisions taken by the selection board in
    competition No COM/A/10/98 excluding the applicants                   — infringes Article 253 EC, in so far as, in the circumstances
    from the tests subsequent to the pre-selection tests, the                 of the present case, it is not sufficient for the Commission
    said decisions being contained in letters sent to the                     merely to state that Article 82 EC does not prevent an
    applicants on 16 June 1999;                                               undertaking which has a monopoly from expanding into
                                                                              other areas. The applicant stresses that, to its knowledge,
— consequently, annul all of the steps taken and acts done                    the decision is the first one in which the Commission
    subsequently in the procedure relating to competition                     expresses its views on the question whether an undertaking
    No COM/A/10/98;                                                           enjoying an exclusive right to perform a service of general
— order the Commission to pay the costs.                                      interest can use the profits deriving from the reserved
                                                                              market to acquire control of an undertaking in a neigh-
                                                                              bouring liberalised country.
Pleas in law and main arguments                                           — ignores the fact that the use of profits deriving from an
                                                                              exclusive right which is granted solely in order to ensure
The pleas in law and main arguments are the same as in Case                   performance of a service of general economic interest
T-172/99 Pentericci v Commission (1).                                         would constitute an abuse of a dominant position, pro-
                                                                              hibited under Article 82 EC.
(1) Not yet published in the Official Journal.
                                                                          (1) OJ C 340, of 7.11.98, p. 25.
Action brought on 2 August 1999 by UPS Europe NV/SA
  against the Commission of the European Communities                      Action brought on 4 August 1999 by Colette Jemaa
                                                                                against the Council of the European Union
                          (Case T-175/99)
                                                                                (Case T-176/99)
                         (1999/C 281/51)
                                                                                (1999/C 281/52)
                   (Language of the case: English)
                                                                                (Language of the case: French)
An action against the Commission of the European Union was
brought before the Court of First Instance of the European                An action against the Council of the European Union was
Communities on 2 August 1999 by UPS Europe NV/SA,                         brought before the Court of First Instance of the European
represented by T.R. Ottervanger and D. Arts, with an address              Communities on 4 August 1999 by Colette Jemaa, residing
for service in Luxembourg at the Chambers of Loeff Claeys                 in Geneva (Switzerland), represented by Jean-Noël Louis,
Verbeke, 5 rue Charles Martel.                                            Greta-Françoise Parmentier and Véronique Peere, of the Brus-
                                                                          sels Bar, with an address for service in Luxembourg at the
                                                                          offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
The applicant claims that the Court should:
— annul the Commission’s decision of 10 June 1999 rejecting               The applicant claims that the Court should:
    the applicant’s complaint;
                                                                          — annul the decision rejecting the applicant’s request for
— order the Commission to pay the costs incurred by the                       authorisation to rent and occupy, from 1 April 1998, an
    applicant in the present proceedings;                                     apartment corresponding to the needs of her family at a
                                                                              monthly rent of CHF 4 800 plus service charges;
— take such further action as the Court may deem appro-
    priate.                                                               — order the defendant to pay an allowance corresponding to
                                                                              the amount of that rent plus service charges from 1 April
                                                                              1998 and interest at the annual rate of 6 % from the date
Pleas in law and main arguments                                               on which the rental payments in question fell due;
                                                                          — order the defendant in addition to pay, by way of
The applicant in the present case, which is also the applicant                compensation for the material damage suffered, the sum
in Case T-127/98 UPS Europe v Commission, (1) challenges the                  of CHF 100 216, plus the sum of 50 000 euro by way of
Commission’s decision rejecting its complaint, but only that                  compensation for the non-material damage suffered by the
part of it which concerns Article 82 EC and relates to the                    applicant and her family;
concentration by means of which Deutsche Post AG (DPAG)
intends to acquire control of DHL International Ltd.                      — order the defendant to pay the costs.


title: Case T-217/16: Action brought on 10 May 2016 — Internacional de Productos Metálicos v Commission

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/38

         Action brought on 10 May 2016 — Internacional de Productos Metálicos v Commission
   (Case T-217/16)
   (2016/C 251/44)
   Language of the case: Spanish

      Parties

      Applicant: Internacional de Productos Metálicos, S.A. (Vitoria-Gasteiz, Spain) (represented by: C. Cañizares Pacheco, E. Tejedor de la Fuente, A. Monreal Lasheras, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               uphold the grounds for annulment put forward and annul Article 2 of Commission Implementing Regulation (EU) 2016/278 of 26 February 2016 repealing the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not;

               —

               expressly acknowledge that Article 1 of Commission Implementing Regulation (EU) 2016/278 of 26 February 2016 repealing the definitive anti-dumping duty imposed on imports of certain iron or steel fasteners originating in the People’s Republic of China, as extended to imports of certain iron or steel fasteners consigned from Malaysia, whether declared as originating in Malaysia or not, has retroactive effects.

      Pleas in law and main arguments

   The applicant challenges the abovementioned regulation in so far as, notwithstanding the fact that the latter repealed the anti-dumping duties initially imposed on the imports of certain iron or steel fasteners originating in the People’s Republic of China and Malaysia, as a result of the decisions adopted by the relevant WTO authorities, Article 2 of that regulation restricts the possible reimbursement of the duties paid by refusing to make the repeal retroactive, allowing the continued existence in law of anti-dumping duties contrary to the regulatory rules of the WTO, without there being an objective public policy justification for such a decision.
   In support of its action, the applicant relies on three pleas in law.

               1.

               First plea in law, based on the unlawfulness of Article 2 of the contested regulation, on the ground that it was contrary to the Anti-Dumping Agreement.

                           —

                           The applicant submits in that regard that since the Commission itself acknowledges in the contested regulation that the anti-dumping duties have been repealed because of the infringement of the Anti-Dumping Agreement by the Council, the lawfulness of the contested article has to be assessed having regard to the obligations assumed by the European Union in entering into the Anti-Dumping Agreement.

                           —

                           In addition, as may be seen from the Anti-Dumping Agreement, the European Union, as a contracting party to that agreement, could only impose anti-dumping duties by observing the procedure laid down in that international agreement. Since the Council infringed several provisions of that agreement when imposing the anti-dumping duties repealed, as is expressly acknowledged in Regulation (EU) 2016/278, the European Union was never entitled to impose the duties repealed, so that the effects of the repeal can in no case be limited.

               2.

               Second plea in law, based on legal certainty and the principle of unjust enrichment

                           —

                           The applicant submits in that regard that the need to acknowledge that the repeal of the anti-dumping duties has retroactive effect stems from the purpose of the regulation in question, since that regulation acknowledges the infringement of the Anti-Dumping Agreement by the Council when it imposed the anti-dumping duties.

                           —

                           In addition, in the same way as the Court of Justice has required Member States to return those amounts collected in breach of Community law, the same conclusion applies to the amounts collected by the European Union in breach of its own law such as the Anti-Dumping Agreement. To deny that the repeal has retroactive effect would mean that individuals must bear the effects of unlawful conduct without the possibility of any form of remedy for the unlawful damage that they ought never to have sustained.

               3.

               Third plea in law, based on the principle of the protection of legitimate expectations

                           —

                           In the applicant’s view, the acknowledgement that the international obligations assumed by the European Union had been infringed, by the imposition of the anti-dumping duties contrary to the Anti-Dumping Agreement, gave rise to well-founded expectations that the Commission would adopt a regulation consistent with the infringement acknowledged by it, without allowing the continued existence of the unlawful effects caused by unlawful anti-dumping duties.


title: Action brought on 14 September 1998 by Dino Cantoreggi against the European Parliament (Case T-144/98)

text:
C 340/28             EN                 Official Journal of the European Communities                                     7.11.98
As regards the person ultimately appointed to the post in          Pleas in law and main arguments adduced in support:
issue by the appointing authority, the applicant argues that
that person lacked professional experience in the field in         The applicant contests the refusal of the appointing
question, and that the appointment of that person resulted         authority to accept his application for the post referred to
from the application of political pressure at the highest          above. He maintains in that regard that, according to the
level.                                                             information brought to his notice, it would have been
                                                                   clear from an examination of the personal files of those
The applicant puts forward the following pleas in support          who applied for the post at issue in response to an initial
of his claim:                                                      notice of vacancy concerning that post that the applicant
                                                                   fulfilled the requirements of the post in question and that
Ð illegality of the decision fixing the level of the post to
                                                                   his appointment to that post would have been in the
    be filled at grade A 5/A 4, inasmuch as that decision
                                                                   interests of the service. Moreover, his application had the
    was adopted having regard not to the importance of
                                                                   unconditional support of the Director-General then
    the tasks performed by the unit but to the grade of the
                                                                   competent in the matter and of the Secretary-General at
    official appointed;
                                                                   the time. However, the applicant was appointed to the
Ð infringement of Article 27(3) of the Staff Regulations;          post in issue only on a temporary basis, with effect from
                                                                   1 February 1997. On 9 January 1998 the appointing
Ð absence, alternatively inadequacy, of consideration of           authority terminated that temporary appointment.
    the comparative qualifications and merits of the               Meanwhile, a notice of vacancy had been published
    candidates by the Advisory Committee on                        pursuant to Article 29(1)(c) of the Staff Regulations,
    Appointments, which did not examine their personal             which repeated the requirements as to qualifications and
    files;                                                         knowledge contained in the initial notice of vacancy.
Ð disregard of the criteria of professional experience and
                                                                   In support of his claims, the applicant pleads, first,
    competence referred to in the notice of vacancy in
                                                                   infringement of Articles 4 and 29 of the Staff Regulations,
    issue;
                                                                   breach of the principle of equal treatment and dereliction
Ð inadequacy of the statement of reasons for the                   on the part of the defendant of its duty to have regard for
    contested decision;                                            the welfare and interests of officials, in that it decided to
                                                                   resort to the transfer procedure provided for by
Ð misuse of powers in present case, together with a                Article 29(1)(c) of the Staff Regulations without first
    manifest error of assessment.                                  considering whether to hold a competition internal to the
                                                                   institution.
                                                                   He also pleads infringement of Article 7(1) and of the
                                                                   third paragraph of Article 27 of the Staff Regulations and
Action     brought on 14 September 1998 by             Dino        breach of the principles of non-discrimination and of the
         Cantoreggi against the European Parliament                protection of legitimate expectations, together, in the
                      (Case T-144/98)                              present case, with misuse of powers, inasmuch as the
                        (98/C 340/53)                              appointing authority appointed a person to the post in
                                                                   question without being guided solely by the interests of
               (Language of the case: French)                      the service; the appointment in issue was made on the
                                                                   basis of a nationality quota and with a view to reserving
An action against the European Parliament was brought              the post for a person who, it appears, is of the same
before the Court of First Instance of the European                 nationality as the President of the European Parliament,
Communities on 14 September 1998 by Dino Cantoreggi,               the latter having acted as the appointing authority in that
residing in Brussels, represented by Eric Boigelot, of the         context.
Brussels Bar, with an address for service in Luxembourg at
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim.           Lastly, the applicant considers that he fulfilled all the
                                                                   conditions for appointment to the post in issue, and that
The applicant claims that the Court should:                        the contested decision was adopted on the basis of
Ð annul the appointing authority's decision of                     incorrect considerations, alternatively without taking into
    12 February 1998 by which it appointed another                 account the interests of the service alone. Consequently, it
    person to the post of head of division (in grade A 3,          is vitiated by reasoning which is based on incorrect
    step 1) in the Directorate-General for Administration,         criteria and infringes Article 7, the second paragraph of
    based in Brussels, pursuant to Notice of Vacancy               Article 25 and Articles 29(1) and 45 of the Staff
    No 8045 (post No VI/A/1297) and Notice of Transfer             Regulations; it also breaches certain general legal
    No PE/A/208;                                                   principles, such as the principles of the protection of
                                                                   legitimate expectations and of non-discrimination. The
Ð annul the appointing authority's decision rejecting the          applicant states in that regard that, for the purposes of his
    applicant's application for that post, which was               possible appointment to the post, he possessed, in addition
    contained in Note No 6006 drawn up by HeÂleÁne                 to his specific qualifications, the advantage of being
    Puech, Head of the Recruitment and Personnel                   familiar with the history of the buildings concerned and
    Management Department and sent to the applicant on             with the institution itself, and of being extremely highly
    25 February 1998;                                              qualified in technical managment.
Ð order the defendant to pay all the costs in any event.


title: Case T-344/08: Action brought on 25 August 2008 — EnBW Energie Baden-Württemberg v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/42

         Action brought on 25 August 2008 — EnBW Energie Baden-Württemberg v Commission
   (Case T-344/08)
   (2008/C 272/83)
   Language of the case: German
   Parties

      Applicant: EnBW Energie Baden-Württemberg AG (Karlsruhe, Germany) (represented by: A. Bach and A. Hahn, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear);

               —

               in the alternative, annul Commission Decision D(2008) 4931 of 16 June 2008 concerning a request for access to the administrative files in Case COMP/F/38.899 (Gas insulated switchgear) in so far as the Commission also refused the applicant partial access to the documents on the file;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant objects to the Commission's decision of 16 June 2008 rejecting the applicant's second request for access to documents on the Commission's file in Case COMP/F/38.899 — Gas insulated switchgear.
   The applicant advances three pleas in support of its application.
   First of all, the applicant alleges an infringement of the first and third indents of Article 4(2) of Regulation (EC) No 1049/2001 (1), since the exceptions laid down in those provisions were misinterpreted or misapplied. Further, the applicant claims that the Commission infringed the last clause of Article 4(2) of Regulation No 1049/2001, since it wrongly denied that the applicant has an overriding public interest in access to the file in Case COMP/F/38.899. Finally, the applicant submits that there was an infringement of Article 4(6) of Regulation No 1049/2001, since the applicant ought to have been allowed to consult at least part of the documentation included in the file in Case COMP/F/38.899.

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


title: Case C-184/00: Reference for a preliminary ruling from the Tribunal de Première Instance, Charleroi, (Second Civil Chamber), Belgium, by judgment of that court of 11 May 2000 in the case of ASBL Office des Produits Wallons v Belgian State

text:
8.7.2000            EN                    Official Journal of the European Communities                                      C 192/15
Reference for a preliminary ruling from the Tribunal de              For the purposes of applying Article ll(A) of the Sixth Council
Première Instance, Charleroi, (Second Civil Chamber),                Directive 77/388/EEC of 17 May 1977 on the harmonisation
Belgium, by judgment of that court of 11 May 2000 in the             of the laws of the Member States relating to turnover taxes (1),
case of ASBL Office des Produits Wallons v Belgian State             do operating subsidies covering part of a taxable person’s
                                                                     running costs (investment aid, contribution to general or
                                                                     current expenses, staff costs) and affecting the final cost price
                      (Case C-184/00)                                of its goods or services, but without being able to be
                                                                     distinguished from a transaction price, constitute a taxable
                                                                     amount?
                      (2000/C 192/26)
                                                                     Is their taxable nature conditional on the existence of a distinct
                                                                     service to the body paying the subsidy and on the benefit
                                                                     derived by that body being equivalent to the consideration
Reference has been made to the Court of Justice of the
                                                                     supplied?
European Communities by a judgment of the Tribunal de
Première Instance (Court of First Instance), Charleroi (Second
Civil Chamber), of 11 May 2000, which was received at the            If yes, how is the value of the benefit derived by the body
                                                                     paying the subsidy to be determined?
Court Registry on 16 May 2000, for a preliminary ruling in
the case of ASBL Office des Produits Wallons v Belgian State,
on the following questions:                                          (1) OJ 1977 L 145 of 13.6.1977, p. 1.


title: Case F-98/10: Action brought on 7 October 2010 — Cervelli v Commission

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/42

         Action brought on 7 October 2010 — Cervelli v Commission
   (Case F-98/10)
   ()
   2011/C 13/83
   Language of the case: French

      Parties

      Applicant: Francesca Cervelli (Brussels, Belgium) (represented by: J. R. García-Gallardo Gil-Fournier and M. Arias Díaz, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the Commission’s decision refusing to grant the applicant the expatriation allowance.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               declare the Commission's rejection decision of 30 June 2010 null and void;

               —

               order the European Commission to pay the costs.


title: Case C-313/99: Reference for a preliminary ruling by the High Court, Dublin, by order of that court of 30 July 1999, in the case of Gerard Mulligan, Tim O'Sullivan, Tom Power and Hugh Duncan against the Minister for Agriculture and Food, Ireland and the Attorney General

text:
C 299/18               EN                     Official Journal of the European Communities                                    16.10.1999
Reference for a preliminary ruling by the High Court,                    Action brought on 23 August 1999 by the Kingdom of
Dublin, by order of that court of 30 July 1999, in the case              the Netherlands against the Commission of the European
of Gerard Mulligan, Tim O’Sullivan, Tom Power and Hugh                                             Communities
Duncan against the Minister for Agriculture and Food,
               Ireland and the Attorney General
                                                                                (Case C-314/99)
                                                                                (1999/C 299/21)
                         (Case C-313/99)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 23 August 1999 by the Kingdom of the
                         (1999/C 299/20)                                 Netherlands, represented by Marc Fierstra, Head of the Euro-
                                                                         pean Law Department, and Nynke Wijmenga, a member of
                                                                         the Legal Service of the European Law Department of the
                                                                         Ministry of Foreign Affairs, The Hague.
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court, Dublin,
                                                                         The applicant claims that the Court should:
of 30 July 1999, which was received at the Court Registry on
18 August 1999, for a preliminary ruling in the case of Gerard
Mulligan, Tim O’Sullivan, Tom Power and Hugh Duncan                      (1) annul Commission Directive 1999/51/EC (1) of 26 May
against the Minister for Agriculture and Food, Ireland and the                1999 adapting to technical progress for the fifth time
Attorney General, on the following questions:                                 Annex I to Council Directive 76/769/EEC (2) on the
                                                                              approximation of the laws, regulations, and administrative
                                                                              provisions of the Member States relating to restrictions on
                                                                              the marketing and use of certain dangerous substances and
1. Is Article 7(1) of Council Regulation No 3950/92 (1) to be                 preparations (tin, PCP and cadmium), in so far as point 3
     interpreted as meaning that a Member State may provide                   in the Annex to Directive 1999/51/EC relates to cadmium;
     that a part of the reference quantity available on a holding
     shall not in the case of sale or lease be transferred with the      (2) order the Commission to pay the costs.
     holding to producers taking it over but shall instead be
     added to the national reserve by means of a ‘claw back’ or
     ‘siphoning off’ or some similar deduction mechanism?                Pleas in law and main arguments
                                                                         1. Misuse of powers.
2. If the answer to 1 above is in the affirmative is the
     procedure chosen by the Member State to make such                        — Point 3 in the Annex to Directive 1999/51/EC does
     provision subject only to principles of national law or is                   not concern an amendment within the meaning of
     the said procedure subject to the fundamental principles                     Article 2a of Directive 76/769/EEC; instead, it concerns
     of Community Law including a principle of legal certainty?                   a specific scheme relating to the use of cadmium in
                                                                                Austria and Sweden in respect of the application of
                                                                                Annex I to Directive 76/769/EEC. The contested
                                                                                addition does not result from any scientific and/or
3. If the answer to 1 above is in the affirmative and the                         technical developments, particularly in the field of
     national procedure is subject to Community Law is a                          substitutes for cadmium.
     national procedure whereby the Member State by Statutory
     Instrument empowers the Competent Authority to make a                    — Point 3 in the Annex to Directive 1999/51/EC provides
     determination of the cases of transfers referred to in                       for a derogation from the application of Directive
     Article 7(1) of Council Regulation No 3950/92 where any                      76/769/EEC and, in particular, of Directive
     part of the Milk Quota is not to be transferred with the                     91/338/EEC (3). The contested derogation concerns a
     holding but added to the national reserve and provides                       provision which is designed to achieve the fundamental
     that such determination be made by administrative notice                     aims of the policy of the Community. Like the
     to be published in a national newspaper contrary to the                      1995 Accession Treaty, which laid down special
     principle of legal certainty in Community Law?                               arrangements with regard to the application of Direc-
                                                                                tive 91/338/EEC to Austria and Sweden until 1 January
                                                                                1999, it provides for an exception to the acquis
                                                                                communautaire. This involves a policy decision which
                                                                                requires a strategy assessment to be carried out.
(1) of 28 December 1992, establishing an additional levy in the milk              The implementation of Directive 76/769/EEC is not
    and milk products sector (OJ L 405, 31.12.1992, p. 1).                        involved. That means that it is the European Parliament
                                                                                and the Council that have the competence to adopt,
                                                                                on a proposal from the Commission, a special position
                                                                                with regard to Austria and Sweden in respect of the
                                                                                period commencing on 1 January 1999, in accordance
                                                                                with Article 95 EC in conjunction with Article 251
                                                                                EC. Consequently, the Commission has exceeded its
                                                                                powers.


title: Case T-264/00: Action brought on 14 September 2000 by Compagnia Generale delle Acque against Commission of the European Communities

text:
C 355/28               EN                      Official Journal of the European Communities                                   9.12.2000
Action brought on 16 September 2000 by Hotel Cipriani                     va San Marco fra lavoratori della piccola pesca — Burano
    against Commission of the European Communities                        s.c.r.l. and Others, represented by Alessio Vianello, of the
                                                                          Venice Bar.
                         (Case T-254/00)
                                                                          The applicants claim that the Court should:
                         (2000/C 355/61)
                                                                          —      annul Commission Decision 2000/394/EEC;
                   (Language of the case: Italian)                        —      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                Pleas in law and main arguments
European Communities on 16 September 2000 by Hotel
Cipriani, represented by Marina Marinoni, of the Venice Bar,              The pleas in law and main arguments are those relied upon in
and Gian Michele Roberti and Francesco Sciaudone, of the                  Cases T-234/00 Fondazione Opera S. Maria della Carità v
Naples Bar.                                                               Commission and T-235/00 Codess Sociale and Others (1).
The applicant claims that the Court should:
                                                                          (1) Not yet published.
—     annul Commission Decision 2000/394/EC;
—     in the alternative, annul Article 5 of that decision;
—     order the Commission to pay the costs.
Pleas in law and main arguments                                           Action brought on 14 September 2000 by Compagnia
                                                                          Generale delle Acque against Commission of the Euro-
                                                                                pean Communities
The pleas in law and main arguments are similar to those put
forward in Case T-234/00 Fondazione Opera S. Maria della
Carità v Commission and in Case T-235/00 Codess Sociale                                           (Case T-264/00)
and Others v Commission (1).
                                                                                (2000/C 355/63)
The applicant alleges infringement of Article 87(1) and 3(c)
and (d) of the Treaty, and breach of the principles of
proportionality and equal treatment in the decision to recover                               (Language of the case: Italian)
the aid in question.
                                                                          An action against the Commission of the European Communi-
(1) Not yet published.                                                    ties was brought before the Court of First Instance of the
                                                                          European Communities on 14 September 2000 by Compagnia
                                                                          Generale delle Acque, represented by Alfredo Biagini, Andrea
                                                                          Bortoluzzi and Paolo Pettinelli, of the Venice Bar.
                                                                          The applicant claims that the Court should:
Action brought on 16 September 2000 by Cooperativa                        —      annul Commission Decision 2000/394/EEC;
San Marco fra lavoratori della piccola pesca — Burano
s.c.r.l. and Others against Commission of the European                    —      order the Commission to pay the costs.
                           Communities
                                                                          Pleas in law and main arguments
       (Case T-260/00, T-261/00, T-262/00 e T-263/00)
                         (2000/C 355/62)                                  The pleas in law and main arguments are those relied upon in
                                                                          Cases T-234/00 Fondazione Opera S. Maria della Carità v
                                                                          Commission and T-235/00 Codess Sociale and Others (1).
                   (Language of the case: Italian)
                                                                          (1) Not yet published.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 16 September 2000 by Cooperati-


title: Joined Cases T-246/08 and T-332/08: Judgment of the Court of First Instance of 9 July 2009 — Melli Bank v Council (Common foreign and security policy — Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation — Freezing of funds — Actions for annulment — Judicial review — Proportionality — Equal treatment — Obligation to state reasons — Plea of illegality — Article 7(2)(d) of Regulation (EC) No 423/2007)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/37

         Judgment of the Court of First Instance of 9 July 2009 — Melli Bank v Council
   (Joined Cases T-246/08 and T-332/08) (1)

   (Common foreign and security policy - Restrictive measures against the Islamic Republic of Iran to prevent nuclear proliferation - Freezing of funds - Actions for annulment - Judicial review - Proportionality - Equal treatment - Obligation to state reasons - Plea of illegality - Article 7(2)(d) of Regulation (EC) No 423/2007)
   2009/C 205/67
   Language of the case: English

      Parties

      Applicant: Melli Bank plc (London, United Kingdom) (represented initially by R. Gordon QC, J. Stratford and M. Hoskins, Barristers, R. Gwynne and T. Din, Solicitors, and subsequently by D. Anderson, QC, M. Hoskins, S. Gadhia, D. Murray and M. Din, Solicitors)

      Defendant: Council of the European Union (represented by M. Bishop and E. Finnegan, Agents)

      Interveners in support of the defendant: French Republic (represented by G. de Bergues, E. Belliard and L. Butel, Agents); United Kingdom of Great Britain and Northern Ireland (represented by V. Jackson, Agent, assisted by S. Lee, Barrister); and Commission of the European Communities (represented by S. Boelaert and P. Aalto, Agents)

      Re:

   Application in Joined Cases T-246/08 and T-332/08, for annulment of paragraph 4 of Table B of the Annex to Council Decision 2008/475/EC of 23 June 2008 implementing Article 7(2) of Regulation (EC) No 423/2007 concerning restrictive measures against Iran (OJ 2008 L 163, p. 29) in so far as it relates to Melli Bank plc, and, in Case T-332/08, if necessary, a declaration that Article 7(2)(d) of Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Melli Bank plc to pay, in addition to its own costs, those incurred by the Council of the European Union, including those incurred in the proceedings for interim measures;

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland, the French Republic and the Commission of the European Communities to bear their own costs, including those incurred in the proceedings for interim measures.

      (1)  OJ C 197, 2.8.2008.


title: Case C-166/06: Order of the Court (Fourth Chamber) of 13 July 2006 (reference for a preliminary ruling from the Tribunale civile di Bolzano — Italy) — Eurodomus srl v Comune di Bolzano (Reference for a preliminary ruling — Manifest inadmissibility)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/22

         Order of the Court (Fourth Chamber) of 13 July 2006 (reference for a preliminary ruling from the Tribunale civile di Bolzano — Italy) — Eurodomus srl v Comune di Bolzano
   (Case C-166/06) (1)

   (Reference for a preliminary ruling - Manifest inadmissibility)
   (2006/C 294/37)
   Language of the case: Italian
   Referring court
   Tribunale civile di Bolzano
   Parties to the main proceedings

      Applicant: Eurodomus srl

      Defendant: Comune di Bolzano
   Re:
   Reference for a preliminary ruling — Tribunale civile di Bolzano — Interpretation of Article 6(2) of the Treaty on European Union — Provincial administration adopting regulations capable of impeding the application of a decision of an administrative court that is res judicata — Compatibility with Community law
   Operative part of the order
   The reference for a preliminary ruling made by the Tribunale civile di Bolzano, by decision of 4 January 2006, is inadmissible.

      (1)  OJ C 154, 01.07.2006


title: Case C-460/06: Judgment of the Court (Third Chamber) of 11 October 2007 (reference for a preliminary ruling from the Tribunal du travail de Brussels, Belgium) — Nadine Paquay v Société d'architectes Hoet + Minne SPRL (Social policy — Protection of pregnant women — Directive 92/85/EEC — Article 10 — Prohibition on dismissal from the beginning of pregnancy to the end of maternity leave — Period of protection — Decision to dismiss a female worker during that period of protection — Notification and implementation of the decision to dismiss after the expiry of that period — Equal treatment for male and female workers — Directive 76/207/EEC — Articles 2(1), 5(1) and 6 — Direct discrimination on grounds of sex — Sanctions)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/16

         Judgment of the Court (Third Chamber) of 11 October 2007 (reference for a preliminary ruling from the Tribunal du travail de Brussels, Belgium) — Nadine Paquay v Société d'architectes Hoet + Minne SPRL
   (Case C-460/06) (1)

   (Social policy - Protection of pregnant women - Directive 92/85/EEC - Article 10 - Prohibition on dismissal from the beginning of pregnancy to the end of maternity leave - Period of protection - Decision to dismiss a female worker during that period of protection - Notification and implementation of the decision to dismiss after the expiry of that period - Equal treatment for male and female workers - Directive 76/207/EEC - Articles 2(1), 5(1) and 6 - Direct discrimination on grounds of sex - Sanctions)
   (2007/C 297/24)
   Language of the case: French
   Referring court
   Tribunal du travail de Bruxelles
   Parties to the main proceedings

      Applicant: Nadine Paquay

      Defendant: Société d'architectes Hoet + Minne SPRL
   Re:
   Reference for a preliminary ruling — Tribunal du travail de Bruxelles — Interpretation of Articles 2(1), 5(1) and 6 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), and Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breast feeding (OJ 1992 L 348, p. 1) — Prohibition of dismissal — Dismissal of an employee decided on, because of her pregnancy or the birth of a child, during the period of protection provided for by the directive, but notified to that employee and implemented after the expiry of that period.
   Operative part of the judgment

               1.

               Article 10 of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) must be interpreted as prohibiting not only the notification of a decision to dismiss on the grounds of pregnancy and/or of the birth of a child during the period of protection set down in paragraph 1 of that article but also the taking of preparatory steps for such a decision before the end of that period.

               2.

               A decision to dismiss on the grounds of pregnancy and/or child birth is contrary to Articles 2(1) and 5(1) of Council Directive 76/207/EEC, of 9 February 1976, on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions irrespective of the moment when that decision to dismiss is notified and even if it is notified after the end of the period of protection set down in Article 10 of Directive 92/85. Since such a decision to dismiss is contrary to both Article 10 of Directive 92/85 and Articles 2(1) and 5(1) of Directive 76/207, the measure chosen by a Member State under Article 6 of that latter directive to sanction the infringement of those provisions must be at least equivalent to the sanction set down in national law implementing Articles 10 and 12 of Directive 92/85.

      (1)  OJ C 326, 30.12.2006.


title: Case T-246/05: Action brought on 4 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/47

         Action brought on 4 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-246/05)
   (2005/C 217/102)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 4 July 2005 by The Black & Decker Corporation, established in Towson, Maryland (USA), represented by P. Harris, Solicitor.
   Atlas Copco Aktiebolag established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the contested decision of the First Board of Appeal of the OHIM of 19 April 2005 (Case R 730/2004-1);

               —

               declare opposition proceedings B498 717 inadmissible;

               —

               order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant

               Community trade mark concerned:

               Colour figurative mark in black and yellow, in the form of a tool for goods in Class 7 (manually operated portable electric power tools etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               Atlas Copco Aktiebolag

               Trade mark or sign cited in opposition:

               Non-registered trade marks and signs, used in the course of trade in all Member States for power tools

               Decision of the Opposition Division:

               Rejects opposition as inadmissible

               Decision of the Board of Appeal:

               Annuls the contested decision and remits the case to the Opposition Division for further prosecution

               Pleas in law:

               The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No. 2868/1995 (1).

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995, p. 1


title: Case T-164/03: Action brought on 8 May 2003 by Ampafrance SA against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
C 184/38               EN                           Official Journal of the European Union                                          2.8.2003
—     order the Defendant to pay the costs of the proceedings.              the Court of First Instance of the European Communities on
                                                                            8 May 2003 by Ampafrance SA, established in Cholet (France),
                                                                            represented by C. Bercial Arias, lawyer.
Pleas in law and main arguments                                             Johnson & Johnson GmbH was also a party to the proceedings
                                                                            before the First Board of Appeal.
The applicant is a truck and bus manufacturer. By means of
the contested decisions, the Commission refused to enforce an               The applicant claims that the Court should:
immediate divestiture of the shareholding of AB Volvo in                    —     annul or vary those parts of the decision given by the
Scania AB and refused to communicate to the applicant the                         First Board of Appeal of the defendant on 4 March 2003
confidential terms of the divestiture of the Shareholding of AB                   in Case R 220/2002-1 in which the applicant's claims
Volvo in Scania AB as stipulated in the AB Volvo/Renault                          were not upheld and, consequently, rule that ‘babies'
Véhicule Industriel (VI) decision. On the basis of these                          napkins of absorbent cotton’ are not similar to the goods
Commission Decisions, AB Volvo has been able to maintain a                        covered by the German trade mark ‘bebe’
dominant position vis-à-vis Scania for almost 4 years.                            (No 1 168 346), that there are no similarities liable to
                                                                                lead to a likelihood of confusion between the marks
In support of its claim, the applicant invokes Articles 8 (4), 6                  ‘bebe’ and ‘monBeBé’ (logo) and that Community trade
and 18(3) of the Merger Regulation (1).                                           mark application No 297 309 is to be registered in its
                                                                                entirety;
According to the applicant, the Commission infringed Article 8              —     order the defendant to pay the costs.
(4) of the Merger Regulation by refusing to enforce an
immediate divestiture at the applicant's request. The applicant             Pleas in law and main arguments
argues that the minority shareholding of AB Volvo constitutes
de jure and de facto, sole or joint control with investor AB                Applicant for Community        Ampafrance SA
over Scania which should have been stopped by the Commis-                   trade mark:
sion.
Furthermore, the applicant invokes Article 6 of the Merger
Regulation. The applicant submits that the Commission should                Community       trade  mark    Mixed word and figurative mark
have revoked the Volvo/Renault decision and reviewed the                    sought:                        ‘monbebé’      —      Application
terms of the divestiture. The applicant alleges that Volvo                                                 No 297 309, lodged in respect
infringed its undertaking pertaining to the divestiture when                                               of goods in Classes 3, 5, 8, 10,
participating in the decision-making process of Scania.                                                    11, 12, 18, 20, 21, 22, 24, 25
                                                                                and 28.
The applicant also claims that the Commission should have
disclosed to Scania the information relating to the confidential
approved terms of the divestiture as stipulated in the Volvo/               Proprietor of mark or sign     Johnson & Johnson GmbH
Renault (VI) decision. The applicant claims to be a directly                cited in the opposition pro-
involved party to whom the Commission should have granted                   ceedings:
access to the information contained in the Volvo/Renault
decision.
Finally, the applicant argues that any prolongation for the                 Mark or sign cited in op-      National trade mark ‘bebe’, re-
accomplishment of the divestiture from 2003 to 2004 is not                  position:                      gistered for goods in Classes 3,
automatic but should have been assessed and justified by the                                               16 and 24.
Commission.
(1) Council Regulation (EEC) No 4064/89 of 21.12.1989 on the                Decision of the Opposition     Rejection of the opposition.
    control of concentrations between undertakings (JO L 257, p. 13).       Division:
                                                                            Decision of the Board of       Partial annulment of the deci-
                                                                            Appeal:                        sion of the Opposition Division
Action brought on 8 May 2003 by Ampafrance SA against                                                      and partial rejection of the ap-
the Office for Harmonisation in the Internal Market                                                        plication for registration as re-
               (Trade Marks and Designs) (OHIM)                                                            gards certain goods such as
                                                                                soaps etc; dismissal of the re-
                                                                                mainder of the appeal
                           (Case T-164/03)
                           (2003/C 184/86)
                                                                            Pleas in law:                  Misapplication of Article 8(1)(b)
                    (Language of the case: French)                                                         of Regulation (EC) No 40/94
                                                                                (likelihood of confusion).
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) (OHIM) was brought before


title: Case F-77/14: Action brought on 7 August 2014 — ZZ v Council

text:
               10.11.2014

               EN

               Official Journal of the European Union

               C 395/68

      Action brought on 7 August 2014 — ZZ v Council
      (Case F-77/14)
      (2014/C 395/84)
      Language of the case: French

         Parties

         Applicant: ZZ (represented by: S. Pappas, lawyer)

         Defendant: Council of the European Union

         Subject-matter and description of the proceedings

      Declaration of the inapplicability of Article 8 of Annex VII to the Staff Regulations of Officials, as amended by Article 1(67)(d) of Regulation No 1023/2013, in that it establishes a link between the grant of the benefits provided for in that article and expatriate status, and the annulment of the General Implementing Provisions relating to the travel expenses between the place of employment and the place of origin adopted by the Council on 1 January 2014 applying the same link.

         Form of order sought

                  —

                  Declare that, by virtue of Article 277 TFEU, Article 1(67)(d) of Regulation No 1023/2013 must be disapplied in that it links the reimbursement of annual travel expenses provided for in Article 7 of Annex VII to the Staff Regulations to expatriate status;

                  —

                  Annul Article 1 of the GIPs of 1 January 2014 in that it links the reimbursement of annual travel expenses provided for in Article 7 of Annex VII to the Staff Regulations to expatriate status;

                  —

                  Order the Council to pay the costs.


title: Case T-236/02: Action brought on 8 August 2002 by Luigi Marcuccio against the Commission of the European Communities

text:
C 233/34              EN                       Official Journal of the European Communities                                        28.9.2002
The applicant claims that the Court should:                                                              —     Registration of the Scala Inc’s
                                                                                Community trade mark
                                                                                application is an infringe-
—     annul the First Board of Appeal’s decision of 27 May                                                     ment of Article 8(1) of
      2002 in Case R 830/2001-1;                                                                               Council Regulation No 40/
                                                                                94, as the applicant is the
—     remit the case to the First Board of Appeal;                                                             owner of two earlier and
                                                                                identical trade marks which
                                                                                are registered for identical or
—     order each party to bear its own costs.                                                                  similar goods.
Pleas in law and main arguments
                                                                          Action brought on 8 August 2002 by Luigi Marcuccio
Applicant for the Com-         Scala Inc., USA                              against the Commission of the European Communities
munity trade mark:
                                                                                (Case T-236/02)
The Community trade            Word mark SCALA for ‘computer
mark concerned:                software’ in class 9.                                               (2002/C 233/60)
Proprietor to the right to     The Applicant                                                  (Language of the case: Italian)
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                              An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 8 August 2002 by Luigi Marcuccio,
Trade mark or sign             Danish trade mark registration no.
asserted by way of oppo-       VR 1300 1989 SCALA (word                   represented by Luciano Garofalo, lawyer.
sition in the opposition       mark), registered on 17 March
proceedings:                   1989, and German trade mark                The applicant claims that the Court should:
                               registration no. 2059843 SCALA
                               (Word mark), registered on                 —    annul the decision changing the ‘affectation de l’emploi
                               15 March 1994. These two marks                  A7/A6 et de son titulaire M. Luigi Marcuccio (n. Personnel
                               are registered for a range of goods             048092), fonctionnaire de grade A7’ (‘transferring the
                               in classes 9 and 16. The appli-                 A6/A7 post and its holder, Mr Luigi Marcuccio (Staff
                               cant’s opposition was based on                  No 048092), a grade A7 official’) from the Directorate-
                               some of the goods for which                     General for Development, Commission’s Delegation in
                               the earlier mark was registered,                Luanda (Angola) to the Directorate-General for Develop-
                               specifically ‘counterprograms sto-              ment in Brussels; the said decision was adopted by the
                               red on datacarriers’ and ‘date pro-             Director-General for Development, Mr Koos Richelle, on
                               cessing programs stored on data                 18 March 2002;
                               carriers’ in class 9, and was direct-
                               ed against all the goods specified         —    order the defendant:
                               in Scala Inc’s application
                                                                               —     to pay compensation for the non-material, existen-
Decision of the Oppo-          Refusal of the application                            tial, biological, physical, psychological and material
sition Division:                                                                     damage suffered by the applicant as a result of the
                                                                                decision contested in these proceedings, in the sum
                                                                                of 100 000 (one hundred thousand) euros or such
Decision of the Board of       Refusal of he application                             greater or lesser sum as the Court may think fair and
Appeal:                                                                              equitable;
Grounds of claim:              —     The documents submitted by                —     to pay all the salary-related allowances connected
                                     the Applicant to the Oppo-                      with the performance by the said Marcuccio of his
                                     sition Division did comply                      duties in Angola, with effect from the date on which
                                     with Rule 16(2) of Regu-                        his transfer took effect (1 April 2002), together with
                                     lation (EC) No. 2868/95,                        interest thereon at the rate of 10 % per annum,
                                     implementing Council Regu-                      compounded annually;
                                     lation No 40/94, on the
                                     Community Trade Mark                      —     to pay the costs.
 ---pagebreak--- 28.9.2002              EN                     Official Journal of the European Communities                                       C 233/35
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant in the present case is contesting the decision to          By application of 15 April 2002 the applicant, a manufacturer
transfer him from the Commission’s delegation in Luanda to               of special glass, requested, pursuant to Article 6(1) of Regu-
the Directorate-General for Development in Brussels. That                lation (EC) No 1049/2001 of the European Parliament and of
decision is allegedly connected with illness caused by personal          the Council (1), access to documents relating to various State
conflicts in which he was involved within the said delegation            aid procedures. Two of those procedures concerned the
in Luanda.                                                               applicant itself as a presumed recipient of State aid; the others
                                                                         concerned one of its competitors on the special glass markets,
In support of his claims, the applicant pleads:                          the firm Schott Glass. The applicant’s action is directed at the
                                                                         Commission’s decision of 28 May 2002 in so far as it refuses
—     failure to provide a statement of reasons, inasmuch as the         to grant access to the documents in the aid procedures
      mere reference to the interests of the service cannot be           concerning the applicant itself and in procedures concerning
      regarded as satisfactory in that respect;                          Schott Glass and are already completed.
—     infringement of the principle of proper administration,            The applicant submits that the Commission’s refusal manifestly
      alternatively failure to discharge the duty to have regard         infringes Article 2(1) and (4) of Regulation (EC) No 1049/
      for the welfare and interests of officials;                        2001. The applicant had a right to access which was not
                                                                         restricted by Article 4 of the regulation. In particular, the
—     non-compliance with the principle that the interested
                                                                         Commission had not proved the existence of any specific
      party should be heard in advance of the adoption of a
                                                                         impairment of the protected interests set out in Article 4(2) of
      decision, inasmuch as the contested decision was taken
                                                                         the regulation.
      without any prior notice to the person concerned;
—     the decision at issue is indicative in several respects of a       Furthermore, the applicant submits that the Commission
      misuse of powers, since it is apparent from the overall            wrongly relied on the exception relating to the protection of
      circumstances of the case that the objective actually              the purpose of inspections, investigations and audits. Referring
      pursued was not of a merely organisational nature but              to Article 4(7) of the regulation, the applicant submits that it
      was to distance the applicant from Angola and from the             has at the very least the right to access to documents in
      functions which he was responsible for performing there.           examination procedures which have already been completed.
                                                                         Moreover, it ought to have been possible for the Commission
                                                                         to grant the applicant access to a document in which business
                                                                         secrets had been obscured and thus to grant partial access in
                                                                         accordance with Article 4(6) of the regulation.
Action brought on 8 August 2002 by Technische Glaswer-                   Finally, the Commission infringed its obligation to state
ke Ilmenau GmbH against the Commission of the Euro-                      reasons in accordance with Article 253 EC, since it had merely
                        pean Communities                                 given a general statement of reasons.
                         (Case T-237/02)
                                                                         (1 ) Regulation (EC) No 1049/2001 of the European Parliament and
                                                                              of the Council of 30 May 2001 regarding public access to
                         (2002/C 233/61)                                      European Parliament, Council and Commission documents (OJ
                                                                              2001 L 145 p. 43).
                   (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 August 2002 by Technische                      Action brought on 9 August 2002 by José Barbosa
Glaswerke Ilmenau GmbH, whose registered office is at                    Gonçalves against Commission of the European Com-
Ilmenau (Germany), represented by G. Schohe and Ch. Arhold,                                           munities
lawyers, acting as agents, with an address for service in
Luxembourg.                                                                                (Case T-238/02)
The applicant claims that the Court should                                                        (2002/C 233/62)
—     annul the Commission’s decision of 28 May 2002
                                                                                (Language of the case: Portuguese)
      concerning the applicant’s application for access to
      documents — D(2002) 330168 — except for the part in
      which access is refused to documents directly connected
      with the pending aid procedure concerning Schott;                  An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
—     order the defendant to pay the costs.                              European Communities on 9 August 2002 by José Barbosa


title: Case C-292/00: Reference for a preliminary ruling by the Bundesgerichtshof, by judgment of that court of 27 April 2000, in the case of Davidoff & Company and Zino Davidoff SA v GOFKID Ltd

text:
C 302/16                 EN                     Official Journal of the European Communities                                   21.10.2000
Does the standard fee applicable under Council Directive                   Reference for a preliminary ruling by the Corte Suprema
85/73/EEC (1) of 29 January 1985, in conjunction with Council              di Cassazione (Sezione Terza Civile) (Supreme Court of
Decision 88/408/EEC (2) of 15 June 1988, for the inspection                Cassation, Third Civil Chamber) by interlocutory order
of fresh meat intended for the domestic market in accordance               of that court of 18 April 2000 in the case of the Prefect of
with Council Directive 64/433/EEC (3) of 26 June 1964, as                  the Province of Cuneo against Silvano Carbone as sole
amended by Directive 89/662/EEC (4) of 11 December 1989,                   director of the private limited company ‘Expo Casa Manta
applicable pursuant to Council Directive 88/409/EEC (5) of                                                Srl’
15 June 1988, also cover the costs involved in carrying out a
bacteriological inspection required in an individual case?
                                                                                (Case C-296/2000)
( 1) OJ 1985 L 32, p. 14.                                                                          (2000/C 302/31)
( 2) OJ 1988 L 194, p. 24.
( 3) OJ, English Special Edition 1963-1964, p. 185.
( 4) OJ 1989 L 395, p. 13.                                                 Reference has been made to the Court of Justice of the
( 5) OJ 1988 L 194, p. 28.                                                 European Communities by order of the Corte Suprema di
                                                                           Cassazione (Sezione Terza Civile) of 18 April 2000, received
                                                                           at the Court Registry on 1 August 2000, for a preliminary
                                                                           ruling in the case of the Province of Cuneo against Silvano
                                                                           Carbone as sole director of the private limited company ‘Expo
                                                                           Casa Manta Srl’ on the following question:
Reference for a preliminary ruling by the Bundesgerichts-                  ‘Does a provision of national law which requires prior approval
hof, by judgment of that court of 27 April 2000, in the                    of cordless telephones coming from third countries for the
case of Davidoff & Company and Zino Davidoff SA v                          purposes of their being placed on the market only and not
                             GOFKID Ltd                                    also of their importation fall within the scope of Council
                                                                           Regulation (EC) No 519/94 (1) of 7 March 1994 and Council
                                                                           Regulation (EC) No 3285/94 (2) of 22 December 1994 on
                           (Case C-292/00)                                 common rules for imports from certain third countries?’
                           (2000/C 302/30)
                                                                           (1) OJ L 67 of 10 March 1994, p. 89.
                                                                           (2) OJ L 349 of 31 December 1994, p. 53.
Reference has been made to the Court of Justice of the
European Communities by judgment of the Bundesgerichtshof
(Federal Court of Justice) of 27 April 2000, received at the
Court Registry on 31 July 2000, for a preliminary ruling in the
case of Davidoff & Company SA and Zino Davidoff SA v
GOFKID Ltd on the following questions:
1.    Are the provisions of Article 4(4)(a) and Article 5(2) of
      First Council Directive 89/104/EEC of 21 December                    Reference for a preliminary ruling by the Tribunale
      1988 to approximate the laws of the Member States                    Amministrativo Regionale per il Lazio (Regional Adminis-
      relating to trade marks (1) to be interpreted (and where             trative Court for Lazio) by judgment of that court of
      appropriate so applied) as also entitling the Member                 31 May and 6 July 2000 in the case of M. Balestreri and
      States to retain rules protecting well-known marks in                          L. Maura against the Regione Lombardia
      cases where the later mark is used or to be used for goods
      or services identical with or similar to those in respect of                                 (Case C-303/00)
      which the earlier mark is registered?
2.    Are the grounds mentioned in Articles 4(4)(a) and 5(2) of                                    (2000/C 302/32)
      the Trade Mark Directive (use which without due cause
      takes unfair advantage of, or is detrimental to, the                 Reference has been made to the Court of Justice of the
      distinctive character or repute of the earlier mark) exhaus-         European Communities by judgment of the Tribunale Ammini-
      tive in regulating when it is permissible for provisions             strativo Regionale per il Lazio of 31 May and 6 July 2000,
      protecting well-known marks to be retained under                     received at the Court Registry on 8 August 2000, for a
      national law, or may those articles be supplemented by               preliminary ruling in the case of M. Balestreri and L. Maura
      national rules protecting well-known marks against later             against the Regione Lombardia on the following questions:
      signs which are used or to be used in respect of identical
      or similar goods or services?
                                                                           (1) Do the provisions contained in Articles 1, 4, 6 and 7 of
                                                                                Council Regulation (EEC) No 3950/92 of 28 December
(1) OJ 1989 L 40, p. 1.                                                          1992 (1) and Articles 3 and 4 of Commission Regulation
                                                                                (EEC) No 534/92 of 9 March 1993 (2) permit derogation
                                                                                from the time-limits for the allocation of quotas, and thus
                                                                                for adjustments and levies, where it is found, when


title: Case T-237/03: Action brought on 13 June 2003 by Eileen Oglesby against the Commission of the European Communities

text:
4.10.2003                 EN                          Official Journal of the European Union                                        C 239/17
Action brought on 13 June 2003 by Eileen Oglesby                              The applicant claims that the Court should:
   against the Commission of the European Communities
                                                                              —      annul the decision contained in Article 2 of Commission
                             (Case T-237/03)                                         Decision of 4 April 2003 on the requests received by the
                                                                                Commission to increase in MAGP IV objectives to take
                                                                                into account improvements on safety, navigation at sea,
                            (2003/C 239/32)
                                                                                hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
                      (Language of the case: English)                                under document number C(2003) 1113 to reject a safety
                                                                                capacity application for a proposed new RSW vessel An
                                                                                Capall Oir to replace the MFV An Capall Ban;
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                    —      order the Commission to pay the costs of these proceed-
European Communities on 13 June 2003 by Eileen Oglesby,                              ings.
Kincasslagh, (Ireland), represented by P. Gallagher and A. Col-
lins, Barristers, and D. Barry, Solicitor.
                                                                              Pleas in law and main arguments
The applicant claims that the Court should:
—      annul the decision contained in Article 2 of Commission                The applicant invokes the same pleas in law as in Case T-218/
       Decision of 4 April 2003 on the requests received by the               03 (1).
       Commission to increase in MAGP IV objectives to take
       into account improvements on safety, navigation at sea,
                                                                              (1 ) See p. 9 of this Official Journal.
       hygiene, product quality and working conditions for
       vessels of more than 12 m in length overall notified
       under document number C(2003) 1113 to reject a safety
       capacity application for a proposed new RSW vessel to
       replace the MFV Neptune;
—      order the Commission to pay the costs of these proceed-
       ings.                                                                  Action brought on 13 June 2003 by Paul O’Neill against
                                                                                the Commission of the European Communities
Pleas in law and main arguments                                                                           (Case T-239/03)
The applicant invokes the same pleas in law as in Case T-218/                                             (2003/C 239/34)
03 (1).
                                                                                (Language of the case: English)
( 1) See p. 9 of this Official Journal.
                                                                              An action against the Commission of the European Communi-
                                                                              ties was brought before the Court of First Instance of the
                                                                              European Communities on 13 June 2003 by Paul O’Neill,
                                                                              Killybegs, (Ireland), represented by P. Gallagher and A. Collins,
                                                                              Barristers, and D. Barry, Solicitor.
Action brought on 13 June 2003 by Patrick O’Malley
   against the Commission of the European Communities
                                                                              The applicant claims that the Court should:
                             (Case T-238/03)
                                                                              —      annul the decision contained in Article 2 of Commission
                            (2003/C 239/33)                                          Decision of 4 April 2003 on the requests received by the
                                                                                Commission to increase in MAGP IV objectives to take
                      (Language of the case: English)                                into account improvements on safety, navigation at sea,
                                                                                hygiene, product quality and working conditions for
                                                                                vessels of more than 12 m in length overall notified
                                                                                under document number C(2003) 1113 to reject a safety
An action against the Commission of the European Communi-                            capacity application for a proposed new RSW vessel, the
ties was brought before the Court of First Instance of the                           MFV Paraclete;
European Communities on 13 June 2003 by Patrick O’Malley,
Galway, (Ireland), represented by P. Gallagher and A. Collins,                —      order the Commission to pay the costs of these proceed-
Barristers, and D. Barry, Solicitor.                                                 ings.


title: Case C-283/01: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that court of 13 July 2001 in the case of Shield Mark B.V. against Joost Kist, trading as Memex

text:
29.9.2001             EN                    Official Journal of the European Communities                                         C 275/7
Action brought on 16 July 2001 by the Commission of                    Reference for a preliminary ruling by the Hoge Raad der
the European Communities against the Council of the                    Nederlanden by judgment of that court of 13 July 2001 in
                       European Union                                  the case of Shield Mark B.V. against Joost Kist, trading as
                                                                                Memex
                        (Case C-281/01)
                                                                                (Case C-283/01)
                        (2001/C 275/13)
                                                                                (2001/C 275/14)
An action against the Council of the European Union was                Reference has been made to the Court of Justice of the
brought before the Court of Justice of the European Communi-           European Communities by judgment of the Hoge Raad der
ties on 16 July 2001 by the Commission of the European                 Nederlanden (Netherlands Supreme Court) of 13 July 2001,
Communities, represented by Mr Hendrik van Lier and                    received at the Court Registry on 18 July 2001, for a
Mr Bernd Martenczuk, acting as agents, with an address for             preliminary ruling in the case of Shield Mark B.V. v Joost Kist,
service in Luxembourg.                                                 trading as Memex — on the following questions:
                                                                       1.   (a)   Must Article 2 of the First Council Directive
                                                                                89/104/EEC (1) of 21 December 1988 to approxi-
The Applicant requests that the Court should:                                     mate the laws of the Member States relating to trade
                                                                                marks be interpreted as precluding sounds or noises
—     annul decision 2001/469/EC of the Council of 14 May                         from being regarded as trade marks?
      2001, concerning the conclusion on behalf of the Euro-
      pean Community of the Agreement between the Govern-                   (b) If the answer to question 1(a) is in the negative, does
      ment of the United States of America and the European                       the system established by the Directive require that
      Community on the coordination of energy-efficient label-                    sounds or noises should be regarded as trade marks?
      ling programs for office equipment (1);
                                                                       2.   (a)   If the answer to question 1(a) is in the negative,
—     order the Council to pay the costs.                                         what requirements does the Directive lay down for
                                                                                sound marks as regards the reference in Article 2 to
                                                                                the need for the sign to be capable of being
                                                                                represented graphically and, in conjunction there-
                                                                                with, as regards the way in which the registration of
Pleas in law and main arguments                                                   such a trade mark must take place?
                                                                            (b) In particular, are the requirements referred to in (a)
The proposal submitted by the Commission to the Council for                       satisfied if the sound or the noise is registered in the
the conclusion of the Energy Star Agreement was based on                          form of:
Article 133 EC in conjunction with Article 300 EC. Amending
the Commission’s proposal, the Council decided to base its                        —     musical notation;
decision concerning the conclusion of the aforementioned
Agreement not on Article 133, but on Article 175(1) in                            —     an onomatopoeic description in words;
conjunction with Article 300 EC.
                                                                                —     a description in words in some other way;
The Commission considers that, given its aims and content,                        —     a graphical representation such as a spectro-
the Energy Star Agreement falls entirely within the scope of                            gram or sonogram;
the Community’s common commercial policy and that its
conclusion should have been based on Article 133. The                             —     a sound recording medium annexed to the
decision concerning the conclusion of the Agreement should                              registration form;
not, therefore, have been based on Article 175(1), which
concerns measures adopted in the field of the Community’s
                                                                                —     a digital recording that may be listened to on
environmental policy. The Commission considers the choice
                                                                                the internet;
of the legal basis by the Council for the conclusion of the
Agreement to be erroneous, and the attached decision to be
illegal.                                                                          —     a combination of those methods;
                                                                                —     some other method, and if so, which?
(1) OJ L 172, 26.06.2001, p. 1.
                                                                       (1) OJ 1989 L 40, p. 1.