title: Action brought on 12 April 1996 by Miwon Co., Ltd against the Council of the European Communities (Case T-51/96)

text:
22 . 6 . 96            EN                   Official Journal of the European Communities                                No C 180/33
— the contested regulation is not adequately reasoned in so            Second plea:
     far as the Council did not consider the applicant's
     argument based on the cooperating Thai producer's                 The Commission wrongly assumed that the criteria for
     request that the normal value for Thailand be                     remission of import duties under Article 13 of the remission
     established on the basis of the sales made by that                regulation were not fulfilled. In monitoring and supervising
     producer's related company on the Japanese market,                imports falling within the Hilton quota, the Commission
                                                                       committed serious errors, and it was solely as a result of
— infringement of the basic Regulation, by making a                    those errors that it was possible for imports to be effected, in
     comparison between the normal value and the export                the quantities now determined and over a period of two
     price which infringes Article 2.9.a(ii ) of that                  years, on the basis of the submission of falsified certificates
     Regulation.                                                       of authenticity. In the contested decision, the Commission
                                                                       misjudged the extend of its misconduct and the legal
                                                                       consequences arising therefrom.
                                                                       Third plea:
Action brought on 12 April 1996 by Primex Produkte
Import-Export GmbH & Co. KG, Gebr. Kruse GmbH and                      The Commission breached essential rules of procedure, by
Interporc Im- und Export GmbH against the Commission of                denying Germany's representative at the meeting of experts
                  the European Communities                             of the Member States, held on 4 December 1995 , any
                                                                       opportunity to submit oral comments .
                          ( Case T-50/96 )
                            ( 96/C 180/83 )                            Fourth plea:
               (Language of the case: German)                          The Commission breached the applicants' right to a fair
                                                                       hearing, since it did not grant them any direct hearing in
An action against the Commission of the European                       accordance with the law . The Commission was under an
Communities was brought before the Court of First                      obligation to do so, despite the fact that the procedural rules
Instance of the European Communities on 12 April 1996 by               laid down by the Regulation implementing the Community
Primex Produkte Import-Export GmbH & Co. KG, of                        Customs Code did not provide for direct participation by
Hamburg ( Federal Republic of Germany), Gebr. Kruse                    the applicants in the proceedings before the Commission .
GmbH, of Hamburg ( Federal Republic of Germany ), and
Interporc Im- und Export GmbH, of Hamburg ( Federal                    Fifth plea:
Republic of Germany ), represented by Georg M. Berrisch,
Rechtsanwalt, Brussels, with an address for service in                 Lastly, the contested decision infringes Article 190 of the EC
Luxembourg at the Chambers of Guy Harles of Messrs                     Treaty, since it is inadequately reasoned .
Arendt & Medernach, 8— 10 Rue Mathias Hardt.
The applicants claim that the Court should :
— annul the decision of the Commission of 26 January
     1996 in case REM 8/95 , 11 /95 and 12/95 ( COM Doc .              Action brought on 12 April 1996 by Miwon Co., Ltd
     C( 96 ) 180 final ), addressed to the Federal Republic of             against the Council of the European Communities
     Germany, in so far as it concerns the applicants,                                         ( Case T-51/96 )
— order the Commission to pay the costs.                                                         96/C 180/84 )
Pleas in law and man agruments:                                                       (Language of the case: English)
By the contested decision, the Commission decided that                 An action against the Council of the European Union was
import duties are not to be remitted in respect of                     brought before the Court of First Instance of the European
applications made by the applicants and submitted by                   Communities on 12 April 1 996 by Miwon Co . Ltd,
Germany pursuant to Article 13 of Council Regulation                   represented by Jean-François Bellis, of Van Bael & Bellis,
( EEC ) No 1430/79 of 2 July 1979 . Those applications                 with an address for service in Luxembourg at the Chambers
related to the import of high-grade beef, known as 'Hilton             of Loesch & Wolters, 11 rue Goethe, Luxembourg.
quality' beef, from Argentina, in respect of which falsified
certificates of authenticity, purporting to be issued by the
Argentine authorities, had been submitted to the customs               The applicant claims that the Court should:
authorities .
                                                                       — annul Council Regulation ( EC ) No 81/96 of 19 January
First plea:                                                                1996 imposing definitive anti-dumping duties on
                                                                           imports of monosodium glutamate originating, inter
The decision was founded on the wrong legal basis . The                    alia, in the Republic of Korea in so far as it imposes a
correct legal basis was Article 239 of the Community                       definitive anti-dumping duty on the applicant and orders
Customs Code and not Article 13 of the Regulation relating                 the collection of provisional anti-dumping duties with
to remission .                                                             respect to products exported by the applicant; and
 ---pagebreak--- No C 180/34                EN                 Official Journal of the European Communities                                    22 . 6 . 96
— order        the      Council     to   bear the   costs     of this        and the Tribunal de Defensa de la Competencia de
       proceeding.                                                           Espana ( Spanish Court for the Defence of Competition )
                                                                             respectively, and made public by way of a statement of
Pleas in law and main arguments:                                             the spokesperson for the Commissioner responsible for
                                                                             Competition Policy on 8 February 1996, in which
                                                                             the Commission concluded that the concentration
The applicant, a limited company established under the laws
of the Republic of Korea , produces a wide range of food and                 by which Cablevision SA was taken under joint
chemicals products, including monosodium glutamate                           control constitutes a concentration operation with a
 (' MSG'), a product used as a flavour enhancer in food                      Community dimension;
 products . On 3 November 1 995 , it lodged an application for
annulment against Commission Regulation ( EC )                           — order the defendant to pay the costs .
No 1754/95 imposing a provisional anti-dumping duty on
 imports of monosodium glutamate originating in Indonesia ,
the Republic of Korea , Taiwan and Thailand ( 1 ). The act               Pleas in law and main arguments:
challenged in the present application is Council Regulation
 ( EC ) No 8 1 /96 ( 2 ), imposing definitive anti-dumping duties        The applicant submits that, on 26 July 1995 , Telefonica de
on imports of monosodium glutamate originating in Korea,                 Espana, SA and its subsidiary Telecartera , SA, on the one
Indonesia and Taiwan .                                                   hand, and Sociedad de Gestion de Cable, SA and Sociedad
                                                                         de Television Canal Plus, SA ( two companies which, since
The grounds, on the basis of which the legality of the                  January 1 996 , constitute a single company known from
contested Regulation is challenged, can be summarized as                 March 1996 as Sogecable ) on the other, signed agreements
follows :                                                                which involved the transformation of Sociedad General de
                                                                         Cablevision, SA into a joint venture of a concentrated nature
 1 , the Council has wrongly determined the applicant's                  and intended to provide multimedia services, not including
       dumping margin, and hence the applicant's                         telecommunications, to local cable operators . Since those
       anti-dumping duty, in that it has determined the                  agreements implied the existence of an economic
       applicant's export price on the basis of Articles 2 ( 8 ) ( b )   concentration, the signatory undertakings considered
       and 7 ( 7 ) ( b ) of the anti-dumping Regulation whilst it        whether it had a Community dimension within the meaning
       should have exclusively applied Article 2 ( 8 ) ( a );            of Article 1 ( 2 ) of Regulation ( EEC ) No 4064/89 . After
                                                                         considering the relevant factors, those undertakings arrived
2 , the Council's finding that the imports from the countries            at the conclusion that the concentration had a national
       subject to investigation had, taken in isolation,                 dimension, so that it was excluded from the scope of the
       continued to cause material injury to the Community               regulation . The Commission, on the contrary, found that
       industry is vitiated by fundamental contradictions .              the establishment of Cablevision was a concentration with
                                                                         Community dimension .
f 1 ) Case T-208/95 , OJ No C 351 , 30 . 12 . 1995 , p . 19 .
( 2 ) OJ No L 15 , 20 . 1 . 1996 , p . 20 .                             That     decision   of     the   Commission    constitutes    the
                                                                         subject-matter of the present action based on the
                                                                        infringement of Article 5 ( 4 ) of Regulation ( EEC )
                                                                        No 4064/89 .
                                                                        According to the applicant, the argument of the
Action brought on 16 April 1996 by Sogecable SA against                 Commission is essentially the following: Sogecable is jointly
         the Commission of the European Communities                     controlled by two of its shareholders, Prisa ( Promotora de
                             ( Case T-52/96                             Informaciones, SA ) and Canal Plus Francia ( Canal Plus,
                                96/C 180/85                             Société Anonyme ); consequently, pursuant to Article 5 (4 )
                                                                        of Regulation ( EEC ) No 4064/89, Sogecable's turnover
                                                                        must be added to the turnover of Prisa and Canal Plus
                  (Language of the case: Spanish)                       Francia . The Community dimension results from that
                                                                        aggregate .
An action against the Commission of the European
Communities was brought before the Court of First                       The applicant claims that, vis-à-vis Sogecable, only Prisa is
Instance of the European Communities on 16 April 1 996 by               in any of the situations contemplated by Article 5 ( 4 ) of the
Sogecable SA, whose registered office is in Madrid,                     regulation, namely, that laid down in Article 5 ( 4 ) ( e ) ( has
represented by Santiago Martinez Lage and Rafael                        the right to manage the undertaking's affairs ), although that
Allendesalazar Corcho, of the Madrid Bar, with an address               is not the case so far as Canal Plus Francia is concerned . The
for service in Luxembourg at the Chambers of Aloyse May,                fact of the matter is that the Commission, by its decision,
31 Grand-Rue .
                                                                        seeks in essence to replace the clear, exhaustive and formal
                                                                        criteria of Article 5 ( 4 ) with the vaguer, more imprecise and
The applicant claims that the Court should :                            practical criteria of Article 3 ( 3 ) which is not intended to
                                                                        determine whether a concentration has a Community
— annul the decision of the Commission contained in the                 dimension but merely to define whether an operation
      letters of 6 and 7 February 1996 sent to the applicant            constitutes a concentration. Thus, the Commission infringes


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 21 June 1996 in Case T-41/95: Andrew Macrae Moat v. Commission of the European Communities (Officials - Action for damages - Implemention of a judgment annulling an appointment - Late completion of staff report)

text:
10 . 8 . 96            EN                    Official Journal of the European Communities                               No C 233/7
                                                       COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 19 June 1996                                                          of 21 June 1996
in Case T-573/93 : Manuel Francisco Caballero Montoya v.                in Case T-226/94: Paul Dischamp SA v. Commission of the
        Commission of the European Communities (')                                        European Communities (')
(Officials — Person treated as a dependent child —                       (Suspension of the buying-in of butter by the intervention
Article 2 (4) of Annex VII to the Staff Regulations —                                 agencies — Action for damages)
General implementing provisions — Unlawfulness —                                                  ( 96/C 233/ 13 )
            Misapplication — Retroactive effect)
                         ( 96/C 233 / 12 )
                                                                                (Language of the case: French)
               (Language of the case: Spanish)                          In Case T-226/94 : Paul Dischamp SA, established at Sayat
                                                                        ( France ), represented by François Vignancour, of the
                                                                        Clermont-Ferrand Bar, and Louis Schiltz, of the
                                                                        Luxembourg Bar, with an address for service in
In Case T-573/93 : Manuel Francisco Caballero Montoya ,
                                                                        Luxembourg at the latter's Chambers v . Commission of the
an official of the Commission of the European
                                                                        European Communities ( Agent : Gérard Rozet ) —
Communities, represented by Juan Ramon Iturriagagoitia
                                                                        application for compensation for the damage allegedly
Bassas, of the Madrid Bar, with an address for service in
                                                                        suffered by the applicant following suspension of the
Luxembourg at the Chambers of Marc Loesch, 8 Rue Zithe ,                arrangements for the buying-in of butter by the intervention
v . Commission of the European Communities ( Agents : Ana               agencies from 1 1 January 1991 to 26 February 1991 — the
Maria Alves Vieira and Blanca Rodriguez Galindo ) —
                                                                        Court of First Instance ( Fifth Chamber ), composed of: R.
application, primarily, for a declaration that the general              Schintgen , President, R. García-Valdecasas and J. Azizi ,
implementing provisions relating to persons treated as                  Judges; H. Jung, Registrar, has given a judgment on 21 June
dependent children , adopted by the Commission on                       1996 , in which it:
28 September 1989 , in particular Article 6 thereof and the
connected rules , are illegal and, in the alternative, for
annulment      of  the   decision   of     the   Commission    of
                                                                        1 , dismisses the application;
2 September 1993 rejecting the complaint lodged by the
applicant against the decision partially rejecting his request          2 , orders the applicant to pay the costs.
of 3 December 1992 for his two sons, M. J. and J. J. , to be
treated as dependent children — the Court of First Instance             (>) OJ No C 218 , 6 . 8 . 1994 .
( Second Chamber ), composed of: H. Kirschner, President,
and C. W. Bellamy and A. Kalogeropoulos, Judges; H. Jung,
Registrar, has given a judgment on 19 June 1996 , in which
it :
1 , annuls the decision of the Commission of 2 September                 JUDGMENT OF THE COURT OF FIRST INSTANCE
     1993 , notified to the applicant by letter of 6 September                                   of 21 June 1996
     1993 , rejecting his complaint against the decision of
                                                                        in Case T-41 /95 : Andrew Macrae Moat v . Commission of
     12 February 1993 , together with the latter decision ,
     inasmuch as, whilst those decisions acknowledged the                               the European Communities (')
     applicant's entitlement to the allowance for a person              (Officials — Action for damages — Implemention of a
     treated as a dependent child as regards the first of his           judgment annulling an appointment — Late completion of
     two sons, they refused to grant him that allowance in                                          staff report)
     respect of his second son;                                                                   ( 96/C 233/ 14 )
                                                                                (Language of the case: English)
2 , dismisses the remainder of the action;
                                                                        In Case T-41 /95 : Andrew Macrae Moat, a former official of
3 , orders the Commission to pay the costs.                             the Commission of the European Communities, represented
                                                                        initially by Jacques Verhaegen , of the Brussels Bar, and
                                                                        subsequently by Mark Clough, Barrister, of the Bar of
(') OJ No C 27, 28 . 1 . 1994 .                                         England and Wales, against Commission of the European
                                                                        Communities ( Agents : Thomas F. Cusack and Julian
                                                                        Currall ) — application for compensation for harm allegedly
                                                                        suffered by the applicant as a result of the failure to
                                                                        implement or delay in implementing the judgment of the
 ---pagebreak---  No C 233/8              EN                 Official Journal of the European Communities                                  10 . 8 . 96
 Court     of First   Instance    in  Case   T-58/92   Moat    v.       1 , annuls the decisions of the Council of 9 and 15 June
 Commission [ 1993 ] ECR 11-1443 , the delay in completing                   1994 rejecting the applicants ' requests foi
 his 1991 to 1993 staff report, and the failure to give a                    compensation of 9 February 1994 , together with the
 reasoned reply to a memorandum of 30 March 1994                            decision of 4 January 1995 rejecting the applicants '
 described as a request and/or complaint — the Court of First               complaint of 6 September 1 994 ;
 Instance ( Fifth Chamber ), composed of: R. Schintgen ,
 President, R. Garcia-Valdecasas and J. Azizi , Judges; J.             2 , orders the Council to pay each of the applicants the sum
 Palacio Gonzalez, Administrator, for the Registrar, gave a                 of Bfrs 500 000 by way of compensation for the
 judgment on 21 June 1996 , in which it :                                   combined material and non-material damage;
  1 . dismisses the action -,
                                                                       3 , dismisses the remainder of the application;
 2 , orders each party to bear its own costs.                          4 , orders the Council to pay the costs.
 (') OJ No C 87 , 8 . 4 . 1995 .                                       C ) Ol No C 137, 3 . 6 . 1995 .
                                                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                                      of 28 June 1996
                          of 26 June 1996                             in Case T-500/93 : Y v . Court of Justice of the European
 in Case T-91 /95 : Lieve de Nil and Christiane Impens v.                                      Communities ( 1 )
              Council of the European Union (')                        (Officials — Actions for annulment of measures —
 (Officials — Internal 'upgrading' competition — Measures              Disciplinary proceedings — Right to a fair hearing —
 taken to comply with a judgment declaring an act void —              Evidence of witnesses — 'Legitimate defense ' — 'Exceptio
Article 1 76 of the EC Treaty — New tests — Regrading —               veritatis ' — Mitigating circumstances — Statement of
Non-retroactive — Material and non-material damage —                    reasons — Action for damages —Non-material damage)
                           Compensation)                                                         ( 96/C 233 / 16 )
                           ( 96/C 233/ 15 )
                                                                                (Language of the case: Portuguese)
                (Language of the case: French)
                                                                      In Case T-500/93 : Y v . Court of Justice of the European
                                                                      Communities ( Agents : Timothy Millett and, initially, Carlos
In Case T-91 /95 : Lieve de Nil , an official of the Council of       Pinto Correia , and Isabel Jalles ) — application for
the European Union , residing at Wolvertem ( Belgium ), and           annulment of the decision of the Court of Justice of
Christiane Impens, an official of the Council of the                  28 September 1992 imposing on the applicant the
European Union, residing at Brussels , represented by                 disciplinary measure of deferment of advancement to a
Jean-Noël Louis , Thierry Demaseure and Ariane Tornel , of            higher step for two years , and for compensation for the
the Brussels Bar, with an address for service in Luxembourg           non-material damage allegedly suffered by the applicant —
at the offices of Fiduciaire Myson Sàrl , 1 Rue Glesener, v .         the Court of First Instance ( Second Chamber ), composed
Council of the European Union ( Agents : Yves Chrétien and            of: H. Kirschner, President, and C. W. Bellamy and
Diego Canga Fano ) — application by each of the applicants,           A. Kalogeropoulos, Judges ; J. Palacio Gonzalez ,
first, for annulment of the decision of the Council of 15 June        Administrator, for the Registrar, has given a judgment on
1994 , and, in so far as may be necessary, of the decision of         28 June 1996 , in which it :
the Council of 9 June 1994 , respectively rejecting expressly
and by implication the request for compensation for the                1 , annuls the decision of the Court of Justice of
damage suffered as a result of the inadequate measures                      28 September 1992 imposing on the applicant the
taken by the Council to comply with the judgment of the                     disciplinary measure of deferment of advancement to a
Court of First Instance of 1 1 February 1 993 in Case T-22/91               higher step for two years ;
Railoa-Denti and Others v . Council 1 1 9 9 3 ] ECR 11-69 , and
of the decision of the Council of 4 January 1 995 expressly
rejecting the subsequent complaint, and, second , for an              2 , dismisses the remainder of the application;
order requiring the Council to pay each of them Bfrs
500 000 in respect of material damage and the token sum of            3 , orders the Court of Justice to pay the costs.
ECU 1 in respect of non-material damage — the Court of
First Instance ( Second Chamber ), composed of: H.
                                                                      C ) O J No C 272 , 8 . 10 . 1993 .
Kirschner, President, and C. W. Bellamy and A.
Kalogeropoulos, Judges ; H. Jung, Registrar, has given a
judgment on 26 June 1996 , in which it :


title: Judgment of the Court (Sixth Chamber) of 12 February 2004 in Case C-230/02 (Reference for a preliminary ruling from the Bundesvergabeamt): Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH & Co. KG v Republik Österreich (Public procurement — Directive 89/665/EEC — Review procedures for the award of public contracts — Articles 1(3) and 2(1)(b) — Persons to whom review procedures must be available — Definition of "interest in obtaining a public contract")

text:
C 85/8                     EN                        Official Journal of the European Union                                              3.4.2004
                    JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                             (Sixth Chamber)                                                           (Sixth Chamber)
                           of 22 January 2004                                                        of 12 February 2004
In Joined Cases C-133/02 and C-134/02 (Reference for a                       in Case C-230/02 (Reference for a preliminary ruling
preliminary ruling from the Gerechtshof te Amsterdam):                       from the Bundesvergabeamt): Grossmann Air Service,
Timmermans Transport & Logistics BV, formerly Tim-                           Bedarfsluftfahrtunternehmen GmbH & Co. KG v Repub-
mermans Diessen BV, v Inspecteur der Belastingdienst —                                                 lik Österreich (1)
Douanedistrict Roosendaal, and Hoogenboom Production
Ltd and Inspecteur der Belastingdienst — Douanedistrict                      (Public procurement — Directive 89/665/EEC — Review
                               Rotterdam (1)                                 procedures for the award of public contracts — Articles 1(3)
                                                                             and 2(1)(b) — Persons to whom review procedures must be
(Classification of goods for customs tariff purposes —                       available — Definition of ‘interest in obtaining a public
Binding tariff information — Conditions for the revocation                                                  contract’)
                            of an information)
                                                                                (2004/C 85/11)
                              (2004/C 85/10)
                                                                                (Language of the case: German)
                       (Language of the case: Dutch)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                      in the European Court Reports)
                                                                             In Case C-230/02: Reference to the Court under Article 234
                                                                             EC by the Bundesvergabeamt (Austria) for a preliminary
In Joined Cases C-133/02 and C-134/02: Reference to the                      ruling in the proceedings pending before that court between
Court under Article 234 EC by the Gerechtshof te Amsterdam                   Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH
(Netherlands) for a preliminary ruling in the proceedings                    & Co. KG and Republik Österreich, on the interpretation of
pending before that court between Timmermans Transport &                     Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
Logistics BV, formerly Timmermans Diessen BV, and Inspecte-                  21 December 1989 on the coordination of the laws, regu-
ur der Belastingdienst — Douanedistrict Roosendaal, and                      lations and administrative provisions relating to the application
between Hoogenboom Production Ltd and Inspecteur der                         of review procedures to the award of public supply and public
Belastingdienst — Douanedistrict Rotterdam, on the interpret-                works contracts (OJ 1989 L 395, p. 33), as amended by
ation of Article 9(1) and 12(5)(a)(iii) of Council Regulation                Council Directive 92/50/EEC of 18 June 1992 relating to the
(EEC) No 2913/92 of 12 October 1992 establishing the                         coordination of procedures for the award of public service
Community Customs Code (OJ 1992 L 302, p. 1), as amended                     contracts (OJ 1992 L 209, p. 1), the Court (Sixth Chamber),
by Regulation (EC) No 82/97 of the European Parliament and                   composed of: V. Skouris, acting as President of the Sixth
of the Council of 19 December 1996 (OJ 1997 L 17, p. 1, and                  Chamber, C. Gulmann, J. N. Cunha Rodrigues, J.-P. Puissochet
Corrigendum, OJ 1997 L 179, p. 11), the Court (Sixth                         and R. Schintgen (Rapporteur), Judges; L.A. Geelhoed, Advo-
Chamber), composed of: C. Gulmann (Rapporteur), acting for                   cate General; M.-F. Contet, Principal Administrator, for the
the President of the Sixth Chamber, J. N. Cunha Rodrigues, J.-               Registrar, has given a judgment on 12 February 2004, in
P. Puissochet, R. Schintgen and F. Macken, Judges; P. Léger,                 which it has ruled:
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 22 January 2004, in which it has ruled:
                                                                             1.    Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
                                                                                21 December 1989 on the coordination of the laws, regulations
Article 9(1) read in conjunction with Article 12(5)(a)(iii) of Council             and administrative provisions relating to the application of
Regulation (EEC) No 2913/92 of 12 October 1992 establishing                        review procedures to the award of public supply and public
the Community Customs Code, as amended by Regulation (EC)                          works contracts, as amended by Council Directive 92/50/EEC
No 82/97 of the European Parliament and of the Council of                          of 18 June 1992 relating to the coordination of procedures for
19 December 1996, must be interpreted as meaning that they                         the award of public service contracts, must be interpreted as not
provide the customs authorities with a legal basis for withdrawing a               precluding a person from being regarded, once a public contract
binding tariff information where those authorities change the                      has been awarded, as having lost his right of access to the
interpretation given therein of the legal provisions applicable to the             review procedures provided for by the Directive if he did not
tariff classification of the goods concerned.                                      participate in the award procedure for that contract on the
                                                                                ground that he was not in a position to supply all the services
                                                                                for which bids were invited, because there were allegedly
(1) OJ C 144 of 15.6.2002.                                                         discriminatory specifications in the documents relating to the
                                                                                invitation to tender, but he did not seek review of those
                                                                                specifications before the contract was awarded.
 ---pagebreak--- 3.4.2004                 EN                            Official Journal of the European Union                                                C 85/9
2.    Article 1(3) of Directive 89/665, as amended by Directive 92/            The first sentence of Article 7(1) and Article 7(1)(f) of Commission
      50, must be interpreted as precluding a person who has                   Regulation (EEC) No 536/93 of 9 March 1993 laying down
      participated in a contract award procedure from being regarded           detailed rules on the application of the additional levy on milk and
      as having lost his interest in obtaining the contract on the             milk products should be interpreted as meaning that the stock
      ground that, before seeking the review provided for by the               accounts which producers are required to keep need state only the
      Directive, he failed to refer the case to a conciliation committee       quantities, per month and per product, of milk and/or milk products
      such as Bundes-Vergabekontrollkommission (Federal Public                 sold.
      Procurement Review Commission, established by the Bundesge-
      setz über die Vergabe von Aufträgen (Bundesvergabegesetz)
      1997 (1997 Federal Law on Public Procurement).                           (1) OJ C 202 of 24.8.2002.
(1) OJ C 219 of 14.9.2002.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                                                                                of 5 February 2004
                  JUDGMENT OF THE COURT
                                                                               in Case C-265/02 (Reference for a preliminary ruling from
                                                                               the Corta suprema di cassazione): Frahuil SA v Assitalia
                          (Sixth Chamber)
                                                                                SpA (1)
                        of 12 February 2004                                    (Brussels Convention — Special jurisdiction — Article 5(1)
                                                                               — Meaning of ‘matters relating to a contract’ — Contract
                                                                               of guarantee entered into without the knowledge of the
in Case C-236/02 (Reference for a preliminary ruling from                      principal debtor — Subrogation of the guarantor to the
the College van Beroep): J. Slob v Productschap Zuivel (1)                     rights of the creditor — Right of recourse of the guarantor
                                                                                against the principal debtor)
(Milk and milk products — Direct sales — Reference
quantity — Overruns — Additional levy on milk — Obli-                                                     (2004/C 85/13)
gation on producer to keep stock accounts — Contents —
Interpretation of Article 7(1)(f) of Regulation (EEC) No 536/                                      (Language of the case: Italian)
                                   93)
                                                                               (Provisional translation; the definitive translation will be published
                            (2004/C 85/12)                                                        in the European Court Reports)
                     (Language of the case: Dutch)                             In Case C-265/02: Reference to the Court under the Protocol
                                                                               of 3 June 1971 on the interpretation by the Court of Justice of
(Provisional translation; the definitive translation will be published         the Convention of 27 September 1968 on jurisdiction and the
                    in the European Court Reports)                             enforcement of judgments in civil and commercial matters by
                                                                               the Corte suprema di cassazione (Italy) for a preliminary ruling
                                                                               in the proceedings pending before that court between Frahuil
                                                                               SA and Assitalia SpA, on the interpretation of Article 5(1) of
                                                                               the abovementioned Convention of 27 September 1968 (OJ
In Case C-236/02: Reference to the Court under Article 234                     1978 L 304, p. 36), as amended by the Convention of
EC by the College van Beroep voor het bedrijfsleven (Nether-                   9 October 1978 on the accession of the Kingdom of Denmark,
lands) for a preliminary ruling in the proceedings pending                     Ireland and the United Kingdom of Great Britain and Northern
before that court between J. Slob and Productschap Zuivel, on                  Ireland (OJ 1978 L 304, p. 1 and — amended version —
the interpretation of Article 7(1)(f) of Commission Regulation                 p. 77), by the Convention of 25 October 1982 on the
(EEC) No 536/93 of 9 March 1993 laying down detailed rules                     accession of the Hellenic Republic (OJ 1982 L 388, p. 1) and
on the application of the additional levy on milk and milk                     by the Convention of 26 May 1989 on the accession of the
products (OJ 1993 L 57, p. 12), the Court (Sixth Chamber),                     Kingdom of Spain and the Portuguese Republic (OJ 1989
composed of: C. Gulmann, acting for the President of the Sixth                 L 285, p. 1), the Court (Fifth Chamber), composed of: P. Jann
Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, F. Macken                     (Rapporteur), acting for the President of the Fifth Chamber,
and N. Colneric (Rapporteur), Judges; F.G. Jacobs, Advocate                    C. W. A. Timmermans and S. von Bahr, Judges; P. Léger,
General; M.-F. Contet, Principal Administrator Registrar, has                  Advocate General; R. Grass, Registrar, has given a judgment
given a judgment on 12 February 2004, in which it has ruled:                   on 5 February 2004, in which it has ruled:


title: Case C-624/10: Judgment of the Court (Eighth Chamber) of 15 December 2011 — European Commission v French Republic (Failure of a Member State to fulfil obligations — Taxation — Directive 2006/112/EC — Articles 168, 171, 193, 194, 204 and 214 — Legislation of a Member State obliging a seller or provider established outside the national territory to designate a tax representative and to identify him or herself for VAT purposes in that Member State — Legislation allowing deductible VAT paid by the seller or provider established outside the national territory to be offset against the VAT collected by him or her in the name and on behalf of his or her customers)

text:
               11.2.2012

               EN

               Official Journal of the European Union

               C 39/7

         Judgment of the Court (Eighth Chamber) of 15 December 2011 — European Commission v French Republic
   (Case C-624/10) (1)

   (Failure of a Member State to fulfil obligations - Taxation - Directive 2006/112/EC - Articles 168, 171, 193, 194, 204 and 214 - Legislation of a Member State obliging a seller or provider established outside the national territory to designate a tax representative and to identify him or herself for VAT purposes in that Member State - Legislation allowing deductible VAT paid by the seller or provider established outside the national territory to be offset against the VAT collected by him or her in the name and on behalf of his or her customers)
   2012/C 39/10
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: M. Afonso, acting as Agent)

      Defendant: French Republic (represented by: G. de Bergues and N. Rouam, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Infringement of Articles 168, 171, 193, 194, 204 and 214 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — National legislation imposing the designation of a tax representative by a seller or provider established outside the national territory — Duty to identify oneself for VAT purposes — Nature and scope of the right to deduct

      Operative part of the judgment

   The Court:

               1.

               Declares that, by providing in Title IV of Administrative Instruction 3 A-9-06 No 105 of 23 June 2006 for an administrative concession derogating from a value added tax reverse charge scheme and necessitating, among other things, the designation of a tax representative by a seller or provider established outside of France, that the seller or provider identifies him or herself for value added tax purposes in France and the offsetting of deductible value added tax that he or she has paid against that which he or she has collected in the name and on behalf of his or her customers, the French Republic has failed to fulfil its obligations under Council Directive of 28 November 2006 on the common system of value added tax, and, in particular, Articles 168, 171, 193, 194, 204 and 214 thereof;

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 72, 5.3.2011.


title: Case C-598/14 P: Appeal brought on 22 December 2014 by Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) against the judgment delivered on 21 October 2014 in Case T-453/11 Szajner v OHIM

text:
               23.3.2015

               EN

               Official Journal of the European Union

               C 96/4

         Appeal brought on 22 December 2014 by Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM) against the judgment delivered on 21 October 2014 in Case T-453/11 Szajner v OHIM
   (Case C-598/14 P)
   (2015/C 096/06)
   Language of the case: French

      Parties

      Appellant: Office for Harmonisation in the Internal Market (trade marks and designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Other parties to the proceedings: Gilbert Szajner, Forge de Laguiole

      Form of order sought

               —

               set aside the judgment under appeal,

               —

               order the applicant before the General Court to pay the costs incurred by the Office.

      Pleas in law and main arguments

   The appellant puts forwards to grounds in support of its appeal, namely, the infringement of Article 65 of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (1) and the infringement of Article 8(4) of that regulation read in conjunction with Article L 711-4 of the French Intellectual Property Code.
   According to the appellant, the General Court may annul or amend the decision only where, at the time it was adopted, it was vitiated by one of the grounds for annulment or amendment set out in Article 65(2) of Regulation (EC) No 207/2009. The General Court infringed Article 65(2) of that regulation by misconstruing the scope of its review of legality, which must be restricted to matters of law (including the case-law existing at the time when the decision was adopted) and of fact put forward before the Board of Appeal. The General Court failed to establish that the Board of Appeal had committed an error at the time when the contested decision was adopted. The General Court substituted its own assessment for that of the Board of Appeal and carried out an assessment of the judgment of the French Court of Cassation of 10 July 2012 about which that Board was unable to take a position.
   Furthermore, the General Court distorted the judgment of the French Court of Cassation of 10 July 2012 by declaring that it was ‘devoid of any ambiguity regarding the scope of protection afforded to a company name and which may be applied generally’ and by granting it a scope that it clearly did not have in relation to the other documents in the file, in the context of Article L 711-4 of the French Intellectual Property Code.
   Finally, the General Court committed an error by assessing the areas of activity of Forge de Laguiole in the light of the criteria of trade mark law. The General Court should have assessed the areas of activity of Forge de Laguiole with reference to the purpose and use of the goods sold by that company, and not only in the light of the criterion of the nature of the product.

      (1)  OJ 2009 L 78, p. 1.


title: Case C-276/06: Order of the Court (Fifth Chamber) of 17 April 2007 (reference for a preliminary ruling from the Tribunal du Travail, Verviers (Belgium)) — Mamate El Youssfi v Office National des Pensions (ONP) (Article 104(3), first subparagraph, of the Rules of Procedure — Euro-Mediterranean Agreement EC-Morocco — Article 65 — Principle of non-discrimination in matters of social security — Statutory Guaranteed Income for Elderly Persons)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/25

         Order of the Court (Fifth Chamber) of 17 April 2007 (reference for a preliminary ruling from the Tribunal du Travail, Verviers (Belgium)) — Mamate El Youssfi v Office National des Pensions (ONP)
   (Case C-276/06) (1)

   (Article 104(3), first subparagraph, of the Rules of Procedure - Euro-Mediterranean Agreement EC-Morocco - Article 65 - Principle of non-discrimination in matters of social security - Statutory Guaranteed Income for Elderly Persons)
   (2007/C 96/45)
   Language of the case: French
   Referring court
   Tribunal du Travail, Verviers
   Parties

      Applicant: Mamate El Youssfi

      Defendant: Office National des Pensions (ONP)
   Re:
   Reference for a preliminary ruling — Tribunal du Travail de Verviers — Interpretation of Article 41 of the Cooperation Agreement between the EEC and the Kingdom of Morocco, approved by Council Regulation (EEC) No 2211/78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement the European Economic Community and the Kingdom of Morocco (OJ 1978 L 264, p. 1), as amended by Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part (OJ 2000 L 70, p. 2) and Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1) and Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (OJ 2004 L 166, p. 1) — Principle of non discrimination — Refusal to grant statutory guaranteed income to elderly persons to a Moroccan national resident in Belgium
   Operative part of the order
   The first subparagraph of Article 65(1) of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, signed in Brussels on 26 February 1996 and approved on behalf of the Communities by Decision No 2000/204/EC, ECSC of the Council and the Commission of 24 January 2000 must be interpreted as meaning that the host Member State may not refuse to grant the statutory guaranteed income for elderly persons to a Moroccan national who has reached the age of 65 and resides legally in that State as long as she comes within the scope of that provision

               —

               either because she herself has been employed in the Member State concerned,

               —

               or she is a member of the family of a worker of Moroccan nationality who has been employed in that State.

      (1)  OJ C 224 of 16.9.2006.


title: Case C-84/10 P: Appeal brought on 12 February 2010 by Longevity Health Products, Inc against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2009 in Case T-484/08 Longevity Health Products, Inc v OHIM — Merck (Kids Vids)

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/29

         Appeal brought on 12 February 2010 by Longevity Health Products, Inc against the judgment of the General Court (Eighth Chamber) delivered on 9 December 2009 in Case T-484/08 Longevity Health Products, Inc v OHIM — Merck (Kids Vids)
   (Case C-84/10 P)
   2010/C 100/44
   Language of the case: German

      Parties

      Appellant: Longevity Health Products, Inc (represented by: J. Korab, lawyer)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Merck KGaA

      Form of order sought

   By its appeal, the appellant claims that the Court should:

               1.

               Declare the appeal of Longevity Health Products, Inc admissible,

               2.

               annul judgment of the General Court of 19 December 2009 in Case T-484/08 and

               3.

               order the defendant to pay all the costs.

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the General Court, dismissing the appellant’s action for annulment of the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) of 28 August 2008 on the dismissal of the application for registration as a Community trade mark of the sign ‘Kids Vits’. The Court delivered a ruling confirming the decision of the Board of Appeal, according to which there was a likelihood of confusion with the earlier Community word mark ‘VITS4KIDS’.
   The grounds of appeal relied upon are a breach of procedure and the infringement of Article 8(1)(b) of Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.
   The appellant asserts that the General Court committed a procedural error by not setting a time-limit for lodging a response to the defence submitted by the respondent despite the reasoned request by the appellant. In breach of Community law rules applicable to proceedings before the General Court and the Court of Justice, the applicant’s right to a fair hearing was infringed and its right to legal protection impaired.
   The appellant submits that the General Court infringed Article 8(1)(b) of Regulation No 40/94 by wrongly failing to undertake in its assessment of the likelihood of confusion an overall appraisal of all factors. The Court wrongly held that the noticeable similarities of the opposing marks were sufficient to find that there was a likelihood of confusion for the purposes of trade mark law.
   In particular the Court did not take sufficient account of the fact that the marks at issue predominantly concern goods and services broadly connected to human health, and therefore a high level of attention can be expected from the relevant class of persons. Consumers are perfectly aware, that in the case of trade mark names derived from and based on chemical nomenclature, even slight differences play a role. Furthermore the attentiveness of consumers is further increased by the fact that confusion of the goods may have very unpleasant consequences. That mere fact alone calls for a higher level of attention.
   The Court did not take account of the fact that, the terms of the marks ‘Kids’‘Vits’ und ‘VITS4KIDS’ are substantially different, as the phonetic reproductions of the brand names show appreciable differences. The pronunciation of brand names contribute largely to the memory that a consumer has of a trade mark and on this ground alone there is no likelihood of confusion. Although there is visual similarity, the words ‘Kids’ and ‘Vits’ are nevertheless placed differently in the marks at issue and in the case of the intervener’s mark supplemented by a further sign, (namely a number ‘4’, which should be pronounced as ‘for’ in the sense of ‘intended for’). Furthermore both marks follow as a whole two separate schemes of construction of composite terms, which is of itself sufficient to ensure their distinctiveness.


title: Judgment of the Court (Fifth Chamber) of 13 November 2003 in Case C-209/01 (Reference for a preliminary ruling from the Bundesfinanzhof): Theodor Schilling, Angelika Fleck-Schilling v Finanzamt Nürnberg-Süd (Free movement of workers — Officials and servants of the European Communities — Maintenance of domicile for tax purposes in the Member State of origin — Income tax — Deduction of expenditure in respect of a household assistant)

text:
10.1.2004                 EN                          Official Journal of the European Union                                                  C 7/5
                   JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                            (Fifth Chamber)                                                             (Fifth Chamber)
                        of 20 November 2003
                                                                                of 13 November 2003
in Case C-152/01 (Reference for a preliminary ruling from
the Bundesfinanzhof): Kyocera Electronics Europe GmbH                         in Case C-209/01 (Reference for a preliminary ruling from
                     v Hauptzollamt Krefeld (1)                               the Bundesfinanzhof): Theodor Schilling, Angelika Fleck-
                                                                                Schilling v Finanzamt Nürnberg-Süd (1)
(Common Customs Tariff — Customs value — Determi-
nation of the transaction value — Interest payable under a                    (Free movement of workers — Officials and servants of the
financing arrangement — Exclusion — Conditions — Inter-                       European Communities — Maintenance of domicile for tax
est distinguished from the price actually paid or payable —                   purposes in the Member State of origin — Income tax —
     Declaration not mentioning the interest due or paid)                     Deduction of expenditure in respect of a household assistant)
                             (2004/C 7/06)
                                                                                (2004/C 7/07)
                     (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-152/01: Reference to the Court under Article 234 EC
by the Bundesfinanzhof (Germany) for a preliminary ruling in
the proceedings pending before that court between Kyocera                     In Case C-209/01: Reference to the Court under Article 234 EC
Electronics Europe GmbH and Hauptzollamt Krefeld, on the                      by the Bundesfinanzhof (Germany) for a preliminary ruling in
interpretation of Article 3(2)(a) of Commission Regulation                    the proceedings pending before that court between Theodor
(EEC) No 1495/80 of 11 June 1980 implementing certain                         Schilling, Angelika Fleck-Schilling and Finanzamt Nürnberg-
provisions of Council Regulation (EEC) No 1224/80 on the                      Süd, on the interpretation of Article 48 of the EC Treaty (now,
valuation of goods for customs purposes (OJ 1980 L 154,                       after amendment, Article 39 EC) and of the first paragraph of
p. 14), as amended by Commission Regulation (EEC) No 220/                     Article 14 of the Protocol on the Privileges and Immunities
85 of 29 January 1985 (OJ 1985 L 25, p. 7), the Court (Fifth                  of the European Communities, the Court (Fifth Chamber),
Chamber), composed of: P. Jann, acting for the President of                   composed of: D.A.O. Edward, acting for the President of the
the Fifth Chamber, C.W.A. Timmermans (Rapporteur) and                         Fifth Chamber, A. La Pergola and S. von Bahr (Rapporteur),
S. von Bahr, Judges; F.G. Jacobs, Advocate General; R. Grass,                 Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
Registrar, has given a judgment on 20 November 2003, in                       given a judgment on 13 November 2003, in which it has
which it has ruled:                                                           ruled:
Article 3(2)(a) of Commission Regulation (EEC) No 1495/80 of                  Article 48 of the EC Treaty (now, after amendment, Article 39 EC),
11 June 1980 implementing certain provisions of Council Regulation            in conjunction with Article 14 of the Protocol on the Privileges and
(EEC) No 1224/80 on the valuation of goods for customs purposes,              Immunities of the European Communities, precludes a situation in
as amended by Commission Regulation (EEC) No 220/85 of                        which officials of the European Communities who are of German
29 January 1985, is to be interpreted as meaning that payments of             origin and are resident in Luxembourg, where they work as officials,
interest are distinguished from the price of the goods even if, at the        and who have incurred expenditure in respect of a household assistant
time when the customs declaration is accepted, the customs authorities        in the latter Member State cannot deduct that expenditure from their
are in possession only of the invoice for the net price of the goods and      taxable income in Germany by reason of the fact that the contributions
neither that invoice nor the declaration of customs value reveal              paid for the household assistant were made to the Luxembourg
expressly or by implication that the buyer paid or must pay interest          statutory pension insurance scheme and not to the German scheme.
to the seller in the context of the import transaction in question.
                                                                              (1) OJ C 212 of 28.7.2001.
(1) OJ C 186 of 30.6.2001.


title: Case C-89/12: Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 February 2012 — Rose Marie Bark v Galileo Joint Undertaking, in liquidation

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/18

         Reference for a preliminary ruling from the Hof van Cassatie van België (Belgium) lodged on 17 February 2012 — Rose Marie Bark v Galileo Joint Undertaking, in liquidation
   (Case C-89/12)
   2012/C 133/32
   Language of the case: Dutch

      Referring court

   Hof van Cassatie (Belgium)

      Parties to the main proceedings

      Appellant in cassation: Rose Marie Bark

      Respondent in cassation: Galileo Joint Undertaking, in liquidation

      Question referred

   Should Article 11(2) of the Statutes of the Galileo Joint Undertaking, annexed to Council Regulation (EC) No 876/2002 (1) of 21 May 2002 setting up the Galileo Joint Undertaking, in conjunction with Article 2 of that regulation be interpreted as meaning that the conditions of employment of other servants of the European Union, and more specifically the pay conditions of those conditions of employment, are applicable to staff of the Galileo Joint Undertaking who are employed on fixed-term contracts?

      (1)  OJ 2002 L 138, p. 1.


title: Case T-297/16 P: Appeal brought on 9 June 2016 by Valéria Anna Gyarmathy against the judgment of the Civil Service Tribunal of 18 May 2015 in Case F-79/13 Gyarmathy v EMCDDA

text:
               3.10.2016

               EN

               Official Journal of the European Union

               C 364/13

      Appeal brought on 9 June 2016 by Valéria Anna Gyarmathy against the judgment of the Civil Service Tribunal of 18 May 2015 in Case F-79/13 Gyarmathy v EMCDDA
      (Case T-297/16 P)
      (2016/C 364/09)
      Language of the case: English

         Parties

         Appellant: Valéria Anna Gyarmathy (Györ, Hungary) (represented by: A. Véghely, lawyer)

         Other party to the proceedings: European Monitoring Centre for Drugs and Drug Addiction

         Form of order sought by the appellant

      The appellant claims that the Court should:

                  —

                  repeal and overturn the contested judgment brought by the Civil Service Tribunal on 18 May 2015 in Case F-79/13, Gyarmathy v EMCDDA;

                  —

                  annul the (former) EMCDDA Director’s decision of 11 September 2012 rejecting the appellant’s request for assistance;

                  —

                  annul the (former) EMCDDA Director’s decision of 14 September 2012 not to renew the appellant’s employment contract;

                  —

                  annul the (former) Chairman of the EMCDDA Management Board’s decision of 13 May 2013 and the (former) EMCDDA Director’s decision of 25 June 2013 respectively.

         Pleas in law and main arguments

      In support of the appeal, the appellant relies on two pleas in law.

                  1.

                  First plea in law: The claim for annulment of the EMCDDA Director’s decision of 11 September 2012 rejecting the appellant’s request for assistance:
                  The appellant contends that in its first-instance judgment brought in Case F-79/13 on 18 May 2015, The Civil Service Tribunal, by stating that the appellant's grievances were properly handled by the Agency administration, distorts the facts and contradicts the ample documentary evidence available in the case-file. The (former) EMCDDA Director rejected the appellant's request for assistance, first and foremost, her transfer request to relieve her from the long-term and extensive bullying and harassment she was suffering from her immediate superior. The (former) Director violated his obligation to provide assistance and his duty of solicitude and good administration (judgments of 27 November 2008, Klug v EMEA, F-35/07, EU:F:2008:150, paragraph 74; and of 12 July 2011, Commission v Q, T-80/09 P, EU:T:2011:347, paragraph 84) . Based on facts and evidence, available in the case-file, Article 24 of the Staff Regulations, and the relevant, settled case-law, the (former) EMCDDA Director, acting in his capacity as Appointing Authority, did not provide the appellant with the requested assistance and did not take the necessary measures to protect the tranquility of the service in general, and the appellant from the mistreatment she became victim of in particular. Consequently, the first-instance judgment of the Civil Service Tribunal, with regard to the first plea, is factually incorrect, and furthermore it is contrary to the Community legislation and the settled case-law. As such, it must be repealed and overturned, and the contested decision must be annulled.

                  2.

                  Second plea in law: The claim for annulment of the decision of 14 September 2012 not to renew the appellant’s employment contract:
                  The contested first-instance judgment of the Civil Service Tribunal relied on the reasoning that the (former) EMCDDA Director's decision of 19 December 2012 is one aimed at the appellant's formal complaint of 10 December 2012, challenging — including but not limited to — the (former) Director's decision of 14 September 2012 not to renew the appellant's employment contract. However, as it is obvious from the mere wording of the referred letter, it is impossible to interpret it as such. Instead, it is a decision about initiating an administrative inquiry based on the appellant's complaint. In addition, in this very same letter the (former) Director denies having made a decision at all with regard to the appellant's employment contract. Furthermore, even if the manifestly wrong interpretation of the contested decision were to be upheld, it is still against the law and illegal, since the appellant had not been heard before (judgment of 12 December 2013, CH v Parliament, F-129/12, EU:F:2013:203) and it is constituted a mere preparatory act (judgment of 16 March 2009, R v Commission, T-156/08 P, EU:T:2009:69) and as such, could not be independently challenged (judgment of 10 November 2009, N v Parliament, F-71/08, EU:F:2009:150; and order of 23 October 2012, Possanzini v Frontex, F-61/11, EU:F:2012:146) . The contested decision also constituted a misuse of powers (judgments of 19 October 1995, Obst v Commission, T-562/93, EU:T:1995:181; of 12 December 2000, Dejaiffe v OHIM, T-223/99, EU:T:2000:292; and judgment of 25 September 2012, Bermejo Garde v EESC, F-41/10, EU:F:2012:135) based on evidence available in the case-file. It is even questionable whether the (former) EMCDDA Director had the power of authority at the time of making the contested decision (order of 25 October 1996, Lopes v Court of Justice, T-26/96, EU:T:1996:157). It must be reminded that the Defendant failed to lodge a defence, which in turn led to a judgment by default. In the reasoning of the contested first-instance judgment, the Tribunal relied on an argument of the Defendant's defence lodged in a different case (F-22/14, Gyarmathy v EMCDDA), and thereby violated procedural boundaries. The Civil Service Tribunal's first-instance judgment with regards to the second plea is also contrary to the facts and evidence, available in the case-file. It constitutes a manifest violation of procedural boundaries. As such, it must be repealed and overturned, and the contested decision must be annulled.


title: Case C-485/15: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 September 2015 — Aeroporto Valerio Catullo di Verona Villafranca SpA v Società per l’Aeroporto Civile di Bergamo-Orio al Serio SpA (SACBO SpA)

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/16

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 September 2015 — Aeroporto Valerio Catullo di Verona Villafranca SpA v Società per l’Aeroporto Civile di Bergamo-Orio al Serio SpA (SACBO SpA)
   (Case C-485/15)
   (2015/C 414/19)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Appellant: Aeroporto Valerio Catullo di Verona Villafranca SpA

      Respondent: Società per l’Aeroporto Civile di Bergamo-Orio al Serio SpA (SACBO SpA)

      Question referred

   Do the principles of the Treaty on European Union of non-discrimination, equal treatment, transparency, advertising and competition preclude provisions of national legislation such as the combined provisions of Article 10 of Law No 537/93, Articles 6, 7, 8 and 17 of Ministerial Decree No 521/1997, Article 17 of Decree Law No 67/97, Article 3(2) of Legislative Decree No 96/2005 and Article 11 of Decree Law No 216/2011 in conjunction with Article 6 of Decree Law No 78/2010, in so far as those national provisions may allow the grant of a forty-year concession for full airport operation to escape award by means of a public tendering procedure?


title: JUDGMENT OF THE COURT of 17 October 1995 in Case C-44/94 (reference for a preliminary ruling from the Divisional Court of the Queen's Bench Division of the High Court of Justice): The Queen v. Minister of Agriculture, Fisheries and Food, ex-parte National Federation of Fishermen's Organizations and Others, Federation of Highlands and Islands Fishermen and Others (Common fisheries policy - Multiannual guidance programmes - Limitation of the number of days at sea)

text:
25 . 11 . 95           EN                  Official Journal of the European Communities                                  No C 315/3
pending before that court between Eckhard Kalanke and                 Communities ( Agents : E. de March and T. van Rijn ) —
Freie Hansestadt Bremen , supported by Heike Glifimann —              application for the annulment of Commission Regulation
on the interpretation of Article 2 ( 1 ) and ( 4 ) of Council         ( EEC ) No 2920/93 of 22 October 1993 fixing the uniform
Directive 76/207/EEC of 9 February 1976 on the                        reduction coefficient for determining the quantities of
implementation of the principle of equal treatment for men            bananas to be allocated to each operator in Categories A and
and women as regards access to employment, vocational                 B in the context of the tariff quota for the second half of
training and promotion , and working conditions ( OJ 1976             1993 ( OJ 1993 L 264 , p. 40 ) — the Court, composed of:
L 39 , p. 40 ) — the Court, composed of: G. C. Rodriguez              G. C. Rodriguez Iglesias , President, C. N. Kakouris , D. A. O.
Iglesias , President, C. N. Kakouris, D. A. O. Edward, J. -P.         Edward and G. Hirsch ( Presidents of Chambers ), G. F.
Puissochet and G. Flirsch ( Presidents of Chambers ), G. F.           Mancini , F. A. Schockweiler ( Rapporteur ), J. C. Moitinho
Mancini , F. A. Schockweiler, J. C. Moitinho de Almeida , P.          de Almeida , P. J. G. Kapteyn, C. Gulmann, J. L. Murray and
J. G. Kapteyn ( Rapporteur ), C. Gulmann and J. L. Murray,            L. Sevon , Judges; M. B. Elmer, Advocate-General ; H. von
Judges ; G. Tesauro , Advocate-General ; H. A. Ruhl ,                 Holstein , Deputy Registrar, for the Registrar, has given a
Principal Administrator, for the Registrar, gave a judgment           judgment on 17 October 1995 , in which it :
on 17 October 1995 , the operative part of which is as
follows :
                                                                      1 . Dismisses the action ;
Article 2 (\) and (4) of Council Directive 76/207/EEC of
9 February 1976 on the implementation of the principle of             2 . Orders the Kingdom of the Netherlands to pay the
equal treatment for men and women as regards access to                     costs .
employment, vocational training and promotion, and
working conditions precludes national rules such as those in
the present case which , where candidates of different sexes          (') O J No C 43 , 12 . 2 . 1994 .
shortlisted for promotion are equally qualified,
automatically give priority to women in sectors where they
are under-represented, under-representation being deemed
to exist when women do not make up at least halfofthe staff
in the individual pay brackets in the relevant personnel
group or in the function levels provided for in the
organization chart.
(') O J No C 27 , 28 . 1 . 1994 .
                                                                                JUDGMENT OF THE COURT
                                                                                of 17 October 1995
                                                                      in Case C-44/94 ( reference for a preliminary ruling from the
                                                                      Divisional Court of the Queen 's Bench Division of the High
                                                                      Court of Justice ): The Queen v. Minister of Agriculture,
                                                                      Fisheries and Food, ex-parte National Federation of
                                                                      Fishermen 's Organizations and Others , Federation of
                                                                            Highlands and Islands Fishermen and Others (')
                                                                       (Common fisheries policy — Multiannual guidance
                                                                       programmes — Limitation of the number of days at sea)
               JUDGMENT OF THE COURT                                                             (9 SIC 315 /06 )
                       of 17 October 1995
in Case C-478/93 : Kingdom of the Netherlands v.
       Commission of the European Communities (')                                    (Language of the case: English)
 (Bananas — Import system — Category A and Category B
                              operators)                              In Case C-44/94 : reference to the Court under Article 1 77 of
                           ( 95/C 315/05 )                            the EC Treaty from the Divisional Court of the Queen 's
                                                                       Bench Division of the High Court of Justice ( United
                                                                      Kingdom ) for a preliminary ruling in the proceedings
                 (Language of the case: Dutch)                        pending before that court between The Queen and the
                                                                       Minister of Agriculture, Fisheries and Food , ex-parte
                                                                      National Federation of Fishermen 's Organizations and
                                                                       Others , Federation of Highlands and Islands Fishermen and
 (Provisional translation ; the definitive translation will be         Others on the interpretaton of Articles 6 , 34 , 39 and 40 ( 3 )
          published in the European Court Reports)                     of the EC Treaty, Council Regulation ( EEC ) No 3759/92 of
                                                                       17 December 1992 on the common organization of the
                                                                       market in fishery and aquaculture products ( OJ 1992 L 388 ,
 In Case C-478/93 : Kingdom of the Netherlands ( Agents : A.           p. 1 ), Council Regulation ( FTC ) No 3760/92 of
 Bos and f . W. de Zwaan ) v. Commission of the European               20 December 1992 establishing a Community system for
 ---pagebreak--- No C 315/4              EN               Official Journal of the European Communities                                    25 . 11 . 95
fisheries and aquaculture ( OJ 1992 L 389, p. 1 ) and                             JUDGMENT OF THE COURT
Commission Decision 92/593/EEC of 21 December 1992 on
                                                                                ( Second Chamber)
a multiannual guidance programme for the fishing fleet of
the United Kingdom for the period 1993 to 1996 pursuant                                  of 17 October 1995
to Council Regulation ( EEC ) No 4028/86 ( OJ 1992 L 401 ,          in Joined Cases C-59/94 and C-64/94 ( references for a
p. 33 ), as well as certain general principles of Community         preliminary ruling from the Cour d'Appel, Pau ): Ministre
law, the Court, composed of: G. C. Rodriguez Iglesias,              des Finances v. Societe Pardo & Fils and Camicas Sari f 1 )
President, D. A. O. Edward, J. -P. Puissochet and G. Hirsch
                                                                    (Common Customs Tariff — Tariffheadings — Beverages
( Presidents of Chambers ), F. A. Schockweiler, J. C.                   — Preparations of wines of fresh grapes — Sangria)
Moitinho de Almeida , P. J. G. Kapteyn ( Rapporteur ),
C. Gulmann, J. L. Murray, P. Jann and H. Ragnemalm,                                           ( 95/C 315/07 )
Judges; G. Tesauro, Advocate-General; Lynn Hewlett,
Administrator, for the Registrar, has given a judgment on
17 October 1995 , in which it ruled that:
                                                                                (Language of the case: French)
1 . Commission Decision 92/593/EEC of 21 December
     1992 on a multiannual guidance programme for the               (Provisional translation; the definitive translation will be
     fishing fleet of the United Kingdom for the period 1 993                published in the European Court Reports)
     to 1996 pursuant to Council Regulation (EEC)
     No 4028/86 must be interpreted as enabling the United
     Kingdom to limit the number of days a year that vessels
     over 1 0 metres in length may spend at sea in so far as a      In Joined Cases C-59/94 and C-64/94 : reference to the
     maximum of 45 % of the overall target set in that              Court under Article 177 of the EEC Treaty from the Cour
     decision may be achieved by measures other than                d'Appel ( Court of Appeal ), Pau , for a preliminary ruling in
     reductions in the capacity of the fishing fleet. The           the proceedings pending before that court between Ministre
     decision does not preclude that Member State from              des Finances and Societe Pardo et Fils ( Case C-59/94 ) and
     adopting technical conservation measures, provided             between Ministre des Finances and Camicas Sari ( Case
     that they have been approved by the Commission .               C-64/94 ) on the interpretation of headings 2205 and 2206
                                                                    of the combined nomenclature of the Common Customs
                                                                    Tariff, in the versions laid down by Council Regulation
                                                                    ( EEC ) No 2658/87 of 23 July 1987 on the tariff and
2 . The answers to the first question are not affected by the       statistical nomenclature and on the Common Customs
     fact that the Member State concerned did not achieve the       Tariff ( OJ 1987 L 256 , p. 1 ) and Commission Regulation
     targets set by the previous MAGP.                              ( EEC ) No 3174/88 of 21 Sepember 1988 amending Annex I
                                                                    to Council Regulation ( EEC ) No 2658/87 on the tariff and
                                                                    statistical nomenclature and on the Common Customs
3 . Articles 6, 34, 39 and 40 (3) of the Treaty, Council            Tariff ( OJ 1988 L 298 , p. 1 ), the Court ( Second Chamber ),
     Regulation (EEC) No 3759/92 ofl 7 December 1 992 on            composed of: G. Hirsch ( Rapporteur ), President of the
     the common organization of the market in fishery and           Chamber, G. F. Mancini and F. A. Schockweiler, Judges;
     aquaculture products, Council Regulation (EEC)                 F. G. Jacobs, Advocate-General; R. Grass, Registrar, gave a
     No 3760/92 of 20 December 1992 establishing a                  judgment on 17 October 1995 , in which it rules :
     Community system for fisheries and aquaculture, the
     principle of equal treatment, the right to property, the
     freedom to pursue a trade or professional activity and
     the principle of proportionality do not preclude the           Heading 2205 of the combined nomenclature for the
     adoption by a Member State of measures of the kind             Common Customs Tariff, in the versions laid down in
     referred to in the first question.                             Council Regulation (EEC) No 2658/87 of 23 July 1987 on
                                                                    the tariff and and statistical nomenclature and on the
                                                                    Common Customs Tariff and Commission Regulation
4 . The answers given to the other questions can be affected        (EEC) No 3174/88 of 21 September 1988 amending
     by neither the nature of the stock caught by a vessel, nor     Annex I to Council Regulation (EEC) No 2658/87 on the
     the extent to which the restrictions in question affect        tariff and statistical nomenclature and on the Common
     normal fishing, other operations ofindividual fishermen        Customs Tariff, is to be interpreted as covering a beverage
     and the market in fish, nor the opportunity given to a         described as 'sangria ' consisting of more than 50 % wine of
     national authority to make derogations in favour of            fresh grapes together with water, sugar and fruit
                                                                    extracts .
     particular sectors of the United Kingdom fishing
     fleet.
                                                                    (') OJ No C 90 , 26 . 3 . 1994 and OJ No C 103 , 11 . 4 . 1994 .
(') OJ No C 90 , 26 . 3 . 1994 .


title: Action brought on 11 April 1995 by Jean-Pierre Aubineau against the Commission of the European Communities (Case T-102/95)

text:
24 . 6 . 95          LEN                  Official Journal of the European Communities                                    No C 159/27
( d ) The rejection of the price undertaking proposed by the         Jean-Pierre Aubineau, residing in Brussels (Belgium ),
       applicant is based on invalid grounds .                       represented by Georges Vandersanden, of the Brussels Bar,
                                                                     with an address for service in Luxembourg at the offices of
C ) OJ No L 15, 21 . 1 . 1995 , p . 11 .                             Fiduciaire Myson Sari, 1 Rue Glesener.
                                                                     The applicant claims that the Court should :
                                                                     — annul the decision of J. P. Contzen, contained in his note
                                                                           of 27 February 1995 , compulsorily transferring the
Action brought on 10 April 1995 by Hans-Günter vom Endt                    applicant to the post of Adviser to the Head of the ISEI
against the Council of the European Union and the                          ( Institute for Systems Engineering and Informatics ),
         Commission of the European Communities                           Ispra ,
                        ( Case T-100/95 )
                                                                     — award the applicant one ecu by way of token
                          ( 95/C 159/55 )
                                                                          compensation for the non-material damage suffered by
                                                                           him,
                (Language of the case: German)
                                                                     — reimburse to the applicant the whole of such personal
An action against the Council of the European Union and                   expenses as he may incur in moving to Ispra and
the Commission of the European Communities was brought                    installing himself there,
before the Court of First Instance of the European
Communities on 10 April 1995 by Hans-Günter vom Endt,                — order the Commission to pay all of the costs .
Wuppertal ( Federal Republic of Germany ), represented by
Bernd Meisterernst, Mechtild Düsing, Dietrich Manstetten,
Frank Schulze and Winfried Haneklaus , Rechtsanwälte,                Pleas in law and main arguments adduced in support:
Munster, with an address for service in Luxembourg at the
Chambers of Dupong & Associés, 14a Rue des Bains .                   The applicant contests the decision of the appointing
                                                                     authority of the Joint Rersearch Centre (JRC ) compulsorily
The applicant claims that the Court should :                         transferring him to Ispra as Adviser to the Head of the
                                                                     Institute for Systems Engineering and Informations (ISEI)
                                                                     with effect from 1 April 1995 , which was subsequently
1 , order the defendants jointly to pay to the applicant             deferred to 1 May 1995 .
      SLOM I compensation for the period from 20 May 1 984
      to 29 March 1989 in the amount of DM 100 965,13
      together with interest thereon at 8 % from 19 May 1992         The applicant was engaged by the JRC as a member of the
      and jointly to pay the costs of the proceedings ;              temporary staff pursuant to a contract of three years'
                                                                     duration, which was subsequently changed to a contract for
2 , join the present action to that already pending in Case          an indefinite period from 1 March 1993 .
      T-77/93 Hülseberg and Others v. Council and
      Commission and also stay the proceedings .                     The applicant disputes the legality of the contested decision
                                                                     on the grounds that it contravenes :
Pleas in law and main arguments adduced in support:
                                                                     ( a ) the contract of employment concluded between the
The pleas in law and main arguments are similar to those in                  Commission and the applicant, as amended by the
Case T-20/94 .                                                               transaction referred to above, in that it fixes Brussels as
                                                                             the place of employment;
                                                                     ( b ) Article 7 of the Staff Regulations, according to which
                                                                             the appointing authority may compulsorily transfer an
                                                                             official or a member of the temporary staff solely in the
                                                                             interest of the service;
Action brought on 11 April 1995 by Jean-Pierre Aubineau
   against the Commission of the European Communities                (c ) the principle of the protection of legitimate
                        ( Case T-102/95 )                                    expectations , in that the defendant failed to comply
                          ( 95/C 159/56 )                                    with the provisions of the settlement terminating the
                                                                             proceedings in Case T-91 /91 ; and
                 (Language of the case: French)                      (d ) the principle of good management and sound
                                                                             administration .
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 11 April 1995 by