title: Case C-111/05: Judgment of the Court (Third Chamber) of 29 March 2007 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — Aktiebolaget NN v Skatteverket (Sixth VAT Directive — Supply of goods — Article 8(1)(a) — Fibre-optic cable between two Member States running in part outside Community territory — Tax jurisdiction of each Member State limited to the length of cable installed on its territory — Non-taxation of the part lying in the exclusive economic zone, on the continental shelf or on the seabed)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/7

         Judgment of the Court (Third Chamber) of 29 March 2007 (reference for a preliminary ruling from the Regeringsrätten — Sweden) — Aktiebolaget NN v Skatteverket
   (Case C-111/05) (1)

   (Sixth VAT Directive - Supply of goods - Article 8(1)(a) - Fibre-optic cable between two Member States running in part outside Community territory - Tax jurisdiction of each Member State limited to the length of cable installed on its territory - Non-taxation of the part lying in the exclusive economic zone, on the continental shelf or on the seabed)
   (2007/C 96/10)
   Language of the case: Swedish
   Referring court
   Regeringsrätten
   Parties to the main proceedings

      Applicant: Aktiebolaget NN

      Defendant: Skatteverket
   Re:
   Reference for a preliminary ruling — Regeringsrätten — Interpretation of Article 8(1)(a) and 9(1) and (2) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Place of taxable transactions — Supply and laying of an underwater fibre optic cable between two Member States, partly in an area outside the territory of any State
   Operative part of the judgment

               1.

               A transaction for the supply and installation of a fibre-optic cable linking two Member States and sited in part outside Community territory must be considered a supply of goods within the meaning of Article 5(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, as amended by Council Directive 2002/93/EC of 3 December 2002, where it is apparent that, after functionality tests carried out by the supplier, the cable will be transferred to the client who will dispose of it as owner, that the price of the cable itself clearly represents the greater part of the total cost of that transaction, and that the supplier's services are limited to the laying of the cable without altering its nature and without adapting it to the specific requirements of the client.

               2.

               Article 8(1)(a) of Sixth Directive 77/388 must be interpreted as meaning that the right to tax the supply and laying of a fibre-optic cable linking two Member States and sited in part outside the territory of the Community is held by each Member State pro rata according to the length of cable in its territory with regard both to the price of the cable itself and the rest of the materials and to the cost of the services relating to the laying of the cable.

               3.

               Article 8(1)(a) of Sixth Directive 77/388, read in conjunction with Articles 2(1) and 3 of that directive, must be interpreted as meaning that the supply and laying of a fibre-optic cable linking two Member States is not subject to VAT for that part of the transaction which is carried out in the exclusive economic zone, on the continental shelf and at sea.

      (1)  OJ C 106, 30.4.2005.


title: Case T-464/16 P: Order of the General Court of 19 July 2017 — HI v Commission (Appeal — Civil service – — Project funded by the European Union — Conflict of interest — Disciplinary action — Downgrading — Dismissal of the action at first instance — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/31

         Order of the General Court of 19 July 2017 — HI v Commission
   (Case T-464/16 P) (1)

   ((Appeal - Civil service – - Project funded by the European Union - Conflict of interest - Disciplinary action - Downgrading - Dismissal of the action at first instance - Appeal in part manifestly inadmissible and in part manifestly unfounded))
   (2017/C 300/38)
   Language of the case: French

      Parties

      Appellant: HI (represented by: M. Velardo, lawyer)

      Other party to the proceedings: European Commission (represented by: C. Ehrbar and F. Simonetti, acting as Agents)

      Re:

   Appeal against the judgment of the Civil Service Tribunal of the European Union (Single Judge) of 10 June 2016, HI v Commission (F-133/15, EU:F:2016:127), seeking to have that judgment set aside.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               HI shall bear its own costs and pay those incurred by the European Commission in the context of the present proceedings.

      (1)  OJ C 371, 10.10.2016.


title: Case C-81/03: Action brought on 24 February 2003 (by fax on 21 February 2003) by the Commission of the European Communities against the Republic of Austria

text:
C 101/24               EN                        Official Journal of the European Union                                             26.4.2003
       the case and made a manifest error of assessment. The             The Commission takes the view that there are alternative
       Court of First Instance thus infringed Articles 230, 232          methods for capturing thrushes with the aim of avoiding
       and 234 EC as well as the Statute and the Rules of                damage to crops, such as hunting with rifles or employing
       Procedure.                                                        auditory or visual deterrents using flare guns, vibrating tapes
                                                                         or a combination of such methods. In other Spanish regions
                                                                         (Andalusia, Castilla-La Mancha, etc) there are extensive areas
( 1) OJ C 44 of 22.2.2003.                                               of olive groves and vineyards where hunting with lime is not
                                                                         permitted and where hunting with rifles in autumn and winter
                                                                         is considered adequate protection.
                                                                         Finally, the derogation under Article 9(1)(c) of Directive 79/
                                                                         409/EEC cannot apply in view of the fact that the parany is a
                                                                         non-selective hunting method and the high number of speci-
                                                                         mens captured.
Action brought on 21 February 2003 by Commission of
    the European Communities against Kingdom of Spain
                                                                         (1 ) OJ 1979 L 103, p. 1.
                                                                         (2 ) According to Article 4(1) of Decree 135/2000, ‘the only species
                          (Case C-79/03)                                      whose capture is permitted are the following: song thrush (Turdus
                                                                              philomenus), fieldfare (Turdus pilares), redwing (Turdus iliacus)
                                                                              and mistle thrush (Turdus viscivorus)’.
                         (2003/C 101/39)
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 21 Febru-
ary 2003 by the Commission of the European Communities,
represented by Gregorio Valero Jordana, of its Legal Service,            Action brought on 24 February 2003 (by fax on 21 Febru-
with an address for service in Luxembourg.                               ary 2003) by the Commission of the European Communi-
                                                                                ties against the Republic of Austria
The applicant claims that the Court should:                                                           (Case C-81/03)
—      declare that, by tolerating the practice of hunting with                                      (2003/C 101/40)
       birdlime in the Autonomous Community of Valencia,
       governed by Decree 135/2000 of 12 September 2000 of
       the Government of Valencia laying down conditions and
       requirements for the granting of special permits for the
       hunting of thrush with birdlime in the Community of               An action against the Republic of Austria was brought
       Valencia, the Kingdom of Spain has failed to fulfil its           before the Court of Justice of the European Communities on
       obligations under Article 8(1) and Article 9(1) of Council        24 February 2003 (by fax on 21 February 2003) by the
       Directive 79/409/EEC ( 1) of 2 April 1979 on the conser-          Commission of the European Communities, represented by
       vation of wild birds.                                             Maria Patakia, Legal Adviser in the Commission’s legal service
                                                                         and Claudia Schmidt, a member of the Commission’s legal
                                                                         service, with an address for service at the office of Luis Escobar
—      order the Kingdom of Spain to pay the costs.                      Guerrero, a member of the Commission’s legal service, Wagner
                                                                         Centre C 254, Luxembourg-Kirchberg.
Pleas in law and main arguments                                          The Commission claims that the Court should:
                                                                         1.     declare that, by prohibiting, under Paragraph 7a of
The ‘parany’ is an arrangement intended for the capture of                      the Bundesgesetz über die Regelung der gehobenen
thrush ( 2), which requires the use of small twigs impregnated                  medizinisch-technischen Dienste (Federal Law on the
with birdlime. Hunting with birdlime is a non-selective method                  Regulation of Higher Medico-Technical Services; ‘MTD-
of capture, as referred to in Annex IV(a) to Directive 79/409/                  Gesetz’), the independent exercise in Austria of certain
EEC and, accordingly, prohibited under Article 8 thereof, since                 medico-technical professions (laboratory, radiological
it cannot be guaranteed that birds of the species listed in                     and orthoptic services), the Republic of Austria has failed
Annex I to Directive 79/409/EEC or other protected migratory                    to fulfil its obligations under Articles 43 and 49 EC;
or non-hunting species are not caught in the parany and
trapped in the lime.                                                     2.     order the Republic of Austria to pay the costs.
 ---pagebreak--- 26.4.2003              EN                         Official Journal of the European Union                                       C 101/25
Pleas in law and main arguments                                           Pleas in law and main arguments
Medico-technical laboratory, radiology and orthoptic services             In 2000 the Commission received a complaint from an
may not be exercised on an independent basis in Austria. For              economic operator alleging wrongful implementation in Itali-
the exercise of those three professions, an employment                    an law of Council Directive 89/655/EEC ( 1) of 30 November
relationship is necessary. A member of those professional                 1989 concerning the minimum safety and health requirements
categories from another Member State, where the exercise of               for the use of work equipment by workers at work (second
those professions on an independent basis is entirely normal,             individual Directive within the meaning of Article 16(1) of
therefore has no opportunity to carry on his or her profession            Directive 89/391/EEC).
in Austria as an independent. That national measure therefore
undoubtedly constitutes an obstacle to the freedom of estab-
lishment and the freedom to provide services.                             Despite being contacted by the Commission on numerous
                                                                          occasions, the Italian authorities have failed to provide any
                                                                          information on the complainant’s allegations. That failure
                                                                          to communicate information repeatedly requested by the
The Commission finds the Republic of Austria’s argument to                Commission constitutes a failure to fulfil the obligation,
justify that measure unconvincing. It has not been sufficiently           imposed on Member States by Article 10 EC, to offer genuine
demonstrated that salaried employment relationships in the                cooperation to the Community institutions.
paramedical sector concerned are in themselves sufficient to
ensure, or at least better able to ensure, a higher level of health.
The prohibition under Austrian law of the exercise of those               (1 ) OJ L 393 of 30.12.1989, p. 13.
three professions on an independent basis constitutes an
unjustified restriction and therefore an infringement of the
freedom of establishment and the freedom to provide services
laid down by Articles 43 and 49 EC.
                                                                          Action brought on 26 February 2003 by the Commission
                                                                          of the European Communities against the Kingdom of
                                                                                Spain
Action brought on 25 February 2003 by the Commission                                                (Case C-84/03)
of the European Communities against the Italian Republic
                                                                                (2003/C 101/42)
                          (Case C-82/03)
                         (2003/C 101/41)                                  An action against the Kingdom of Spain was brought before
                                                                          the Court of Justice of the European Communities on 26 Febru-
                                                                          ary 2003 by the Commission of the European Communities,
                                                                          represented by G. Valero Jordana and K. Wiedner, with an
                                                                          address for service in Luxembourg.
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 25 February
2003 by the Commission of the European Communities,                       The applicant claims that the Court of Justice should:
represented by Antonio Aresu, acting as Agent.
                                                                          1.    declare that, by failing correctly to incorporate into
                                                                                national law Council Directive 93/36/EEC of 14 June
The applicant claims that the Court should:                                     1993 coordinating procedures for the award of public
                                                                                supply contracts ( 1) and Council Directive 93/37/EEC of
                                                                                14 June 1993 concerning the coordination of procedures
a)    find that the Italian Republic, by failing to offer the                   for the award of public works contracts ( 2) and, in
      Commission any genuine cooperation in a case concern-                     particular:
      ing the health and safety of workers, has failed to fulfil its
      obligations under Article 10 EC, and
                                                                                —     by excluding from the scope of Royal Legislative
                                                                                Decree 2/2000 of 16 June approving the revised
b)    order the Italian Republic to pay the costs.                                    and codified Public Contracts Law by, specifically,


title: Case F-78/11: Action brought on 1st August 2011 — ZZ v European Central Bank

text:
               29.10.2011

               EN

               Official Journal of the European Union

               C 319/30

         Action brought on 1st August 2011 — ZZ v European Central Bank
   (Case F-78/11)
   2011/C 319/64
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: L. Levi and M. Vandenbussche, lawyers)

      Defendant: European Central Bank

      The subject matter and description of the proceedings

   The annulment of the decision terminating the Appellant’s contract due to a disciplinary proceeding concluded with the issuing of a written reprimand.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               Annul the ECB Executive Board’s decision of 20 May 2011, received on 23 May 2011, terminating the Appellant’s contract with effect on 31 October 2011;

               —

               compensate the Appellant’s material prejudice as from 31 October 2011;

               —

               compensate the Appellant’s moral prejudice evaluated at 10 000 euros;

               —

               order the Defendant to pay the costs.


title: Case C-156/12: Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 30 March 2012 — Freistaat Bayern v GREP GmbH

text:
               30.6.2012

               EN

               Official Journal of the European Union

               C 194/9

         Reference for a preliminary ruling from the Landesgericht Salzburg (Austria) lodged on 30 March 2012 — Freistaat Bayern v GREP GmbH
   (Case C-156/12)
   2012/C 194/14
   Language of the case: German

      Referring court

   Landesgericht Salzburg

      Parties to the main proceedings

      Applicant: Freistaat Bayern

      Defendant: GREP GmbH

      Third Party: Revisor beim Landesgericht Salzburg

      Questions referred

               1.

               Is the first sentence of Article 51(1) of the Charter of Fundamental Rights of the European Union to be interpreted as meaning that proceedings for a declaration of enforceability of judgments given in a Member State pursuant to Article 38 et seq. of Council Regulation No 44/2001 (1) also fall within the scope of the Charter?

               2.a)

               If so, does the principle of effective judicial protection enshrined in Article 47 of the Charter cover a claim for exemption from the payment of court costs, in particular a fixed fee payable on lodging an appeal, and/or fees for the assistance of a lawyer in proceedings of the kind referred to in question 1?

               2.b)

               Does this apply also to enforcement proceedings to be conducted in accordance with national law or, at least, to simultaneous appeal proceedings concerning consent to enforcement if the court has given a decision on the application for a declaration of enforceability and consent to enforcement together in one order?

               3.

               Does a right to legal aid in the above sense arise at least in the alternative from Article 43(1) of Regulation No 44/2001 and/or Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms where national law requires a party to be represented before the court by a lawyer for the lodging of the appeal in question?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, OJ L 12, p. 1.


title: Case T-443/09: Action brought on 29 October 2009 — TTNB v OHIM — March (Tila March)

text:
               19.12.2009

               EN

               Official Journal of the European Union

               C 312/40

         Action brought on 29 October 2009 — TTNB v OHIM — March (Tila March)
   (Case T-443/09)
   2009/C 312/66
   Language in which the application was lodged: French

      Parties

      Applicant: TTNB SARL (represented by: J.-M.Moiroux, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Other party to the proceedings before the Board of Appeal of OHIM: Juan Carmen March (Madrid, Spain)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of OHIM of 20 August 2009 in Case R 1538/2008-2 and authorise the registration of the mark applied for;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Tamara Taichman, the applicant’s predecessor

      Community trade mark concerned: the word mark ‘Tila March’ for goods in Classes 3, 18 and 25 — application No 5 402 722

      Proprietor of the mark or sign cited in the opposition proceedings: Carmen March Juan

      Mark or sign cited in opposition: the Spanish word mark ‘CARMEN MARCH’ for goods and services in Classes 3, 18, 24, 25, 35 and 38. The opposition was brought against registration of the goods in Classes 3, 18 and 25

      Decision of the Opposition Division: rejection of the opposition

      Decision of the Board of Appeal: annulment of the decision of the opposition division

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009) since there is no likelihood of confusion between the conflicting marks.


title: Case C-466/03: Reference for a preliminary ruling by the Landgericht Baden-Baden by order of that Court of 20 October 2003 in the appeal brought by Albert Reiss Beteiligungsgesellschaft mbH against Land Baden-Württemberg

text:
24.1.2004              EN                        Official Journal of the European Union                                        C 21/13
3.   Inasmuch as in the (railway) transport sector it is                 Reference for a preliminary ruling by the Landgericht
     exclusively the operation of networks that is governed by           Baden-Baden by order of that Court of 20 October 2003
     Directive 93/38/EEC (affirmation of Question 1): Does a             in the appeal brought by Albert Reiss Beteiligungsge-
     review authority have to refrain from applying a national                sellschaft mbH against Land Baden-Württemberg
     provision in which, contrary to the wording of Directive
     93/38/EEC, also the ‘provision of networks providing a                                      (Case C-466/03)
     service to the public in the field of transport by railway’
     is listed as a sectoral activity?                                                            (2004/C 21/23)
(1) OJ L 199, p. 84.
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Landgericht Baden-
                                                                         Baden (Regional Court, Baden-Baden) of 20 October 2003,
                                                                         received at the Court Registry on 6 November 2003, for a
                                                                         preliminary ruling in the appeal brought by Albert Reiss
                                                                         Beteiligungsgesellschaft mbH against Land Baden-Württem-
Reference for a preliminary ruling by the Bundesverga-                   berg on the following question:
beamt (Wien) by order of that Court of 27 October 2003
in the case of Kostmann GesmbH against Österreichische                   Does Article 10(c) of Council Directive 69/335/EEC of 17 July
                          Bundesbahnen                                   1969 (1) concerning indirect taxes on the raising of capital, as
                                                                         amended by Council Directive 85/303/EEC of 10 June 1985 (2),
                         (Case C-463/03)                                 also encompass charges for the notarially attested transfer of
                                                                         shares in a private limited company?
                          (2004/C 21/22)
                                                                         (1) OJ L 249, p. 25.
                                                                         (2) OJ L 156, p. 23.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesvergabeamt
(Wien) (Federal Procurement Office, Vienna) of 27 October
2003, received at the Court Registry on 4 November 2003,
for a preliminary ruling in the case of Kostmann GesmbH                  Reference for a preliminary ruling by the Finanzgericht
against Österreichische Bundesbahnen on the following ques-              München by order of that Court of 24 June 2003 in
tions:                                                                   the case of Ikegami Electronics (Europe) GmbH against
                                                                                Oberfinanzdirektion Nürnberg
1.   Is Article 2(2)(c) of Directive 93/38/EEC (1) to be inter-
     preted as meaning that, contrary to the other factual
     situations covered by Article 2(2) of the Directive, in the                                 (Case C-467/03)
     area of transport ‘merely’ the operation of networks is to
     be considered a sectoral activity?                                                           (2004/C 21/24)
2.   Which activities fall within the scope of ‘the operation of
     networks providing a service to the public in the field of          Reference has been made to the Court of Justice of the
     transport by railway’ under Article 2(2)(c) of Directive            European Communities by order of the Finanzgericht Mün-
     93/38/EEC? To what extent are, in particular, measures              chen (Finance Court, Munich) of 24 June 2003, received at the
     in the field of infrastructure to be subsumed under this            Court Registry on 6 November 2003, for a preliminary ruling
     heading? To what extent are such measures in the field of           in the case of Ikegami Electronics (Europe) GmbH against
     infrastructure to be classified under the heading ‘provision        Oberfinanzdirektion Nürnberg on the following question:
     of networks’?
                                                                         Is note 5 E of the Combined Nomenclature in the version of
3.   Inasmuch as in the (railway) transport sector it is
                                                                         Annex 1 to Regulation (EC) No 2031/2001 (1) of [6 August]
     exclusively the operation of networks that is governed by
                                                                         2001, amending Annex I to Council Regulation (EEC)
     Directive 93/38/EEC (affirmation of Question 1): Does a
                                                                         No 2658/87 on the tariff and statistical nomenclature and on
     review authority have to refrain from applying a national
                                                                         the Common Customs Tariff (OJ 2001 L 279) to be interpreted
     provision in which, contrary to the wording of Directive
                                                                         as meaning that video monitoring apparatus which stores
     93/38/EEC, also the ‘provision of networks providing a
                                                                         signals from several video cameras compressed on hard disks
     service to the public in the field of transport by railway’
                                                                         for reproduction on monitors performs a different function
     is listed as a sectoral activity?
                                                                         from that of data processing?
(1) OJ L 199, p. 84.                                                     (1) OJ L 279, p. 1.


title: Case C-339/99: Reference for a preliminary ruling by the Verwaltungsgerichtshof, Austria, by order of that court of 1 September 1999 in the appeal proceedings brought by Energie Steiermark Holding AG against Finanzlandesdirektion für Steiermark

text:
4.12.1999              EN                   Official Journal of the European Communities                                      C 352/21
Action brought on 1 September 1999 by the Italian                      The decision is unlawful in that it infringes and misapplies
Republic against Commission of the European Communi-                   Articles 87 and 88 EC and the EEA Agreement, both substan-
                                ties                                   tively and procedurally, and there is no adequate statement of
                                                                       reasons concerning the recovery of the aid at issue.
                         (Case C-328/99)
                        (1999/C 352/30)
                                                                       Reference for a preliminary ruling by the Commissione
An action against the Commission of the European Communi-
                                                                       Tributaria di Primo Grado di Trento, Sezione No 6 by
ties was brought before the Court of Justice on 1 September
                                                                       order of that court of 29 April 1999 in the case of Hotel
1999 by the Italian Republic, represented by its Agent,
                                                                       Bellavista di Litterini and Others against Ufficio Imposte
Professor Umberto Leanza, assisted by Oscar Fiumara, Avvoca-
                                                                       Dirette di Tione di Trento and Centro di Servizio delle
to dello Stato, with an address for service in Luxembourg at
                                                                                Imposte Dirette e Indirette di Trento
the Italian Embassy, 5 Rue Marie-Adélaide.
                                                                                (Case C-330/99)
The applicant claims that the Court should:
                                                                                (1999/C 352/31)
— Annul Decision C(1999) 1524 Final of the Commission of               Reference has been made to the Court of Justice of the
     the European Communities of 2 June 1999, to the extent            European Communities by order of the Commissione Tributa-
     to which it is contested in these proceedings;                    ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
                                                                       Instance, Trento, Sixth Chamber) of 29 April 1999, received
— In the alternative, annul the part of the said decision which        at the Court Registry on 2 September 1999, for a preliminary
     directs that sums constituting unlawful aid in relation to        ruling in the case of Hotel Bellavista di Litterini and Others v
     REL action in 1996 are to be recovered from Seleco;               Ufficio Imposte Dirette di Tione di Trento and Centro di
                                                                       Servizio delle Imposte Dirette e Indirette di Trento on the
                                                                       following question:
— In the further alternative, annul the part of the said decision
     which directs that sums constituting unlawful aid are to be       ‘Is it compatible with Community law, and in particular with
     recovered from Seleco Multimedia Srl and from any other           Directive 69/335/EEC (1), to tax over a period of years at
     undertaking which has benefited from asset transfers in           the rate of 0,75 % per annum pursuant to Decree-Law
     the operations concerned;                                         No 394/1992 of 30 September 1992 that part of the net assets
                                                                       consisting solely of a company’s capital disclosed annually by
— Order the Commission to pay the costs.                               the balance sheet which has already borne the initial tax on
                                                                       contributions of 1 %?’
                                                                       (1) OJ, English Special Edition 1969 (II), p. 412.
Contentions and principal arguments adduced in support
The decision is unlawful in that it infringes and misapplies
Articles 87 and 88 EC (ex Articles 92 and 93 of the EC Treaty)
and the corresponding provisions of the EEA Agreement
because it treats as unlawful aid the assistance referred to           Reference for a preliminary ruling by the Verwaltungs-
above provided by REL (Ristrutturazione Elettronica SpA) and           gerichtshof, Austria, by order of that court of 1 September
FRIULA, despite the fact that the aid from FRIULA cannot be            1999 in the appeal proceedings brought by Energie
regarded as State aid and despite the fact that in any event the       Steiermark Holding AG against Finanzlandesdirektion für
aid in both cases is consistent with that which might have                                          Steiermark
been provided (and in fact was provided in parallel) by private
investors operating under the normal conditions of a market
economy.                                                                                (Case C-339/99)
                                                                                (1999/C 352/32)
The decision is unlawful through lack of an adequate statement
of the reasons on which it is based (the reasons given are             Reference has been made to the Court of Justice of the
inadequate, contradictory and manifestly illogical) because it         European Communities by order of the Verwaltungsgerichts-
treats the aid as unlawful without giving an appropriate and           hof (Higher Administrative Court), Austria, of 1 September
coherent explanation, taking account not only of the assistance        1999, received at the Court Registry on 13 September 1999,
given on a coordinated basis by private investors but also of          for a preliminary ruling in the appeal proceedings brought by
that from those deemed to be public investors without there            Energie Steiermark Holding AG against Finanzlandesdirektion
being any appreciable strategic differences between the two            für Steiermark (Tax Board for the Land of Styria) on the
categories.                                                            following questions:
 ---pagebreak--- C 352/22                EN                       Official Journal of the European Communities                                     4.12.1999
1.     Do payments which a new shareholder, allowed to                      (a) requires undertakings, other than that on which the
acquire the new shares on an increase in capital (where the                     monopoly to operate the universal service has been
pre-emptive right of the existing shareholders is excluded),                    conferred, to pay, even when providing ‘non-universal’ or
does not make itself but makes through its parent company                       ‘value-added’ services, the postal dues payable for the basic
amount to ‘a contribution of assets of any kind’ within the                     ordinary postal service, which in such a case is not in
meaning of Article 4(1)(c) of Council Directive 69/335/EEC of                   actual fact provided by the monopoly-holder.
17 July 1969 concerning indirect taxes on the raising of
capital? (1)
                                                                            (b) directly allocates the proceeds of those dues to the
                                                                                undertaking entrusted with the operation of the universal
2.     Do payments which a new shareholder, allowed to                          service, without there being any offsetting or control
acquire the new shares on an increase in capital (where the                     mechanism to preclude the allocation of cross-subsidies to
pre-emptive right of the existing shareholders is excluded),                    non-universal services.
makes not to the company increasing its capital but to its
subsidiary companies amount to ‘a contribution of assets of
any kind’ within the meaning of Article 4(1)(c) of Directive
69/335/EEC?
3.     Do payments which have not yet been made amount to
‘a contribution of assets of any kind’ within the meaning of
Article 4(1)(c) of Directive 69/335/EEC?
4.     Is the capital duty to be paid by the company a ‘liability’
or ‘expense’ which, in accordance with Article 5(1)(a) of
Directive 69/335/EEC, is to be deducted from the basis of                   Reference for a preliminary ruling by the Landesgericht
assessment?                                                                 Korneuburg by order of 1 September 1999 in the case of
                                                                                SEIKO Kabushiki Kaisha v Rashad Wali
(1) OJ, English Special Edition 1969 (II), p. 412.
                                                                                (Case C-341/99)
                                                                                (1999/C 352/34)
                                                                            Reference has been made to the Court of Justice of the
Reference for a preliminary ruling by the Tribunale Civile                  European Communities by order of 1 September 1999 from
di Genova by judgment of that court of 21 June 1999 in                      the Landesgericht Korneuburg (Regional Court, Korneuburg)
the case of TNT Traco SpA against Poste Italiano and                        (Republic of Austria), which was received at the Court Registry
 Michele Carbone, Raffaele Ciriolo and Clemente Marino                      on 14 September 1999, for a preliminary ruling in the case of
                                                                            SEIKO Kabushiki Kaisha v Rashad Wali on the following
                                                                            question:
                          (Case C-340/99)
                          (1999/C 352/33)                                   On a proper construction of Article 1 thereof, is Council
                                                                            Regulation (EC) No 3295/94 of 22 December 1994 laying
                                                                            down measures to prohibit the release for free circulation,
Reference has been made to the Court of Justice of the                      export, re-export or entry for a suspensive procedure of
European Communities by judgment of the Tribunale Civile di                 counterfeit and pirated goods (Official Journal of the European
Genova (Genova District Court) of 21 June 1999, received at                 Communities L 341 of 30 December 1994) also applicable to
the Court Registry on 13 September 1999, for a preliminary                  situations in which goods of the type specified therein are, in
ruling in the case of TNT Traco SpA v Poste Italiano and                    the course of transit between two countries not belonging to
Michele Carbone, Raffaele Ciriolo and Clemente Marino on the                the European Community, temporarily detained by the cus-
following questions:                                                        toms authorities in a Member State on the basis of that
                                                                            regulation, at the request of a holder of rights who claims that
Do the provisions of the EC Treaty, and in particular                       his rights have been infringed and whose undertaking has its
Articles 86 and 90 thereof, preclude a Member State, in                     registered office in a non-member country?
organising its postal service, from maintaining in force legis-
lation which, though distinguishing between so-called ‘univer-
sal’ services in respect of which exclusive rights are conferred
on a private-law undertaking and non-universal services
offered and provided under a regime of free competition:


title: Judgment of the Court (Fourth Chamber) of 8 June 2000 in Case C-264/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Articles 12 EC, 43 EC and 49 EC — Haulage by operators established in other Member States — National rules requiring enrolment on the register of undertakings)

text:
C 273/4                   EN                    Official Journal of the European Communities                                           23.9.2000
1.    Declares that, by failing to adopt within the prescribed period      1.    Declares that, by failing to adopt, within the prescribed periods,
      all the laws, regulations and administrative provisions necessary          all the laws, regulations and administrative provisions necessary
      to comply with Council Directive 93/104/EC of 23 November                  to comply with the provisions referred to in the first subpara-
      1993 concerning certain aspects of the organisation of working             graph of Article 4(1) of Council Directive 96/43/EC of 26 June
      time, the French Republic has failed to fulfil its obligations             1996 amending and consolidating Directive 85/73/EEC in
      under that directive;                                                      order to ensure financing of veterinary inspections and controls
                                                                                on live animals and certain animal products and amending
2.    Orders the French Republic to pay the costs.                               Directives 90/675/EEC and 91/496/EEC, the Portuguese
                                                                                Republic has failed to fulfil its obligations under that subpara-
                                                                                graph;
(1) OJ C 100 of 10.4.1999.
                                                                           2.    Dismisses the remainder of the action;
                                                                           3.    Orders the Portuguese Republic to pay the costs.
                                                                           (1) OJ C 160 of 5.6.1999.
                  JUDGMENT OF THE COURT
                            (First Chamber)
                                                                                JUDGMENT OF THE COURT
                             of 8 June 2000                                                           (Fourth Chamber)
in Case C-91/99: Commission of the European Communi-                                                    of 8 June 2000
                  ties v Portuguese Republic (1)
                                                                           in Case C-264/99: Commission of the European Communi-
                                                                                ties v Italian Republic (1)
(Failure by a Member State to fulfil its obligations —
Directive 96/43/EC — Failure to transpose within the
                           prescribed period)                              (Failure by a Member State to fulfil its obligations —
                                                                           Articles 12 EC, 43 EC and 49 EC — Haulage by operators
                                                                           established in other Member States — National rules requir-
                            (2000/C 273/06)                                         ing enrolment on the register of undertakings)
                                                                                (2000/C 273/07)
                   (Language of the case: Portuguese)
                                                                                (Language of the case: Italian)
(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-91/99: Commission of the European Communities
(Agent: A. M. Alves Vieira) v Portuguese Republic (Agents:                 In Case C-264/99: Commission of the European Communities
L. Fernandes and M. J. Carvalho) — application for a declar-               (Agents: A. Aresu and M. Patakia) v Italian Republic (Agent:
ation that, by failing to adopt, within the prescribed period, all         Professor Umberto Leanza, assisted by I. M. Braguglia) —
the measures necessary fully to comply with Council Directive              application for a declaration that, by maintaining rules requir-
96/43/EC of 26 June 1996 amending and consolidating Direc-                 ing that Community nationals who carry on business as
tive 85/73/EEC in order to ensure financing of veterinary                  hauliers in Italy as service providers be entered on the
inspections and controls on live animals and certain animal                professional register kept by Chambers of Commerce following
products and amending Directives 90/675/EEC and                            authorisation by the Ministry for the Interior, the Italian
91/496/EEC (OJ 1996 L 162, p. 1), the Portuguese Republic                  Republic has failed to fulfil its obligations under Articles 12
has failed to fulfil its obligations under the EC Treaty — the             EC, 43 EC and 49 EC — the Court (Fourth Chamber),
Court (First Chamber), composed of: L. Sevón, President of                composed of: D. A. O. Edward (Rapporteur), President of the
the Chamber, P. Jann (Rapporteur) and M. Wathelet, Judges;                 Chamber, A. La Pergola and H. Ragnemalm, Judges; S. Alber,
J. Mischo, Advocate General; R. Grass, Registrar, has given a              Advocate General; R. Grass, Registrar, has given a judgment
judgment on 8 June 2000, in which it:                                      on 8 June 2000, in which it:
 ---pagebreak--- 23.9.2000               EN                      Official Journal of the European Communities                                            C 273/5
1.    Declares that, by maintaining rules requiring Community              1.    Dismisses the appeal;
      nationals who pursue haulage activities in Italy as service
      providers to be entered on the professional register of the          2.    Orders Dorsch Consult Ingenieurgesellschaft mbH to pay the
      Chambers of Commerce following authorisation by the Ministry               costs.
      for the Interior, the Italian Republic has failed to fulfil its
      obligations under Articles 12 EC, 43 EC and 49 EC;
                                                                           (1) OJ C 278 of 5.9.1998.
2.    Orders the Italian Republic to pay the costs.
(1) OJ C 281 of 2.10.1999.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                 JUDGMENT OF THE COURT
                                                                                of 15 June 2000
                          (Fifth Chamber)
                                                                           in Joined Cases C-418/97 and C-419/97 (reference for a
                                                                           preliminary ruling from the Nederlandse Raad van State):
                          of 15 June 2000                                  ARCO Chemie Nederland Ltd v Minister van Volkshuis-
                                                                           vesting, Ruimtelijke Ordening en Milieubeheer (C-418/97)
                                                                           and Vereniging Dorpsbelang Hees and Others v Directeur
in Case C-237/98 P: Dorsch Consult Ingenieurgesellschaft                   van de dienst Milieu en Water van de provincie Gelder-
mbH v Council of the European Union and Commission                                                 land (C-419/97) (1)
               of the European Communities (1)
                                                                           (Environment — Directives 75/442/EEC and 91/156/EEC
(Appeal — Non-contractual liability — Embargo on trade                                           — Concept of ‘waste’)
              with Iraq — Lawful act — Damage)
                                                                                (2000/C 273/09)
                          (2000/C 273/08)
                                                                                (Language of the case: Dutch)
                   (Language of the case: German)
                                                                           (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                        in the European Court Reports)
                   in the European Court Reports)
                                                                           In Joined Cases C-418/97 and C-419/97: reference to the
In Case C-237/98 P: Dorsch Consult Ingenieurgesellschaft                   Court under Article 177 of the EC Treaty (now Article 234
mbH, established in Munich, Germany, represented by Pro-                   EC) from the Nederlandse Raad van State, The Netherlands, for
fessor K. M. Meessen, with an address for service in Luxem-                a preliminary ruling in the proceedings pending before that
bourg at the chambers of P. Kinsch, 100 Boulevard de la                    court between ARCO Chemie Nederland Ltd and Minister van
Pétrusse — appeal against the judgment of the Court of First               Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer
Instance of the European Communities (Second Chamber) of                   (C-418/97) and between Vereniging Dorpsbelang Hees, Stich-
28 April 1998 in Case T-184/95 Dorsch Consult v Council                    ting Werkgroep Weurt+, Vereniging Stedelijk Leefmilieu
and Commission [1998] ECR II-667, seeking to have that                     Nijmegen and Directeur van de dienst Milieu en Water van de
judgment set aside and the same form of order as that sought               provincie Gelderland, joined party: Elektriciteitsproductiemaat-
by the appellant at first instance, the other parties to the               schappij Oost- en Noord-Nederland NV (Epon) (C-419/97) —
proceedings being: Council of the European Union (Agents:                  on the interpretation of Council Directive 75/442/EEC of
S. Marquardt and A. Tanca and Commission of the European                   15 July 1975 on waste (OJ 1975 L 194, p. 39), as amended by
Communities (Agents: A. Rosas and J. Sack) — the Court (Fifth              Council Directive 91/156/EEC of 18 March 1991 (OJ 1991
Chamber), composed of: L. Sevón (President of the First                   L 78, p. 32) — the Court (Fifth Chamber), composed of:
Chamber), acting for the President of the Fifth Chamber,                   D. A. O. Edward, President of the Chamber, J. C. Moitinho de
P. J. G. Kapteyn (Rapporteur), P. Jann, H. Ragnemalm and                   Almeida, L. Sevón (Rapporteur), C. Gulmann and J.-P. Puisso-
M. Wathelet, Judges; A. La Pergola, Advocate General; D. Lout-             chet, Judges; S. Alber, Advocate General; D. Louterman-
erman-Hubeau, Principal Administrator, for the Registrar, has              Hubeau, Principal Administrator, for the Registrar, has given a
given a judgment on 15 June 2000, in which it:                             judgment on 15 June 2000, in which it has ruled:


title: Case C-444/99: Action brought on 22 November 1999 by the Commission of the European Communities against the Italian Republic

text:
C 34/14                EN                   Official Journal of the European Communities                                      5.2.2000
2. If Question 1 is answered in the negative:                          Action brought on 22 November 1999 by the Com-
                                                                       mission of the European Communities against the Italian
     A Member State has implemented Council Directive                                              Republic
     80/987/EEC and designated the State as being liable for
     payment of an employee’s claims against an employer who
     has been declared insolvent. In such a case, is the effect of                             (Case C-444/99)
     the Directive such that an employee may enforce a right to
     a wage guarantee without regard to a national provision
     which excludes certain groups of employees from the right                                  (2000/C 34/27)
     to a wage guarantee but which is not consistent with the
     exception to the Directive which is applicable to the
     Member State?                                                     An action against the Italian Republic was brought before the
                                                                       Court of Justice on 22 November 1999 by the Commission of
(1) OJ 1980 L 283, p. 23.                                              the European Communities, represented by Marie Wolfcarius
                                                                       and Stefania Dragone, of its Legal Service, acting as Agent,
                                                                       with an address for service in Luxembourg at the office of
                                                                       Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Reference for a preliminary ruling from the Oberlandes-                The applicant claims that the Court should:
gericht Wien by order of that court of 5 November 1999
in the case of Merck, Sharp & Dohme GmbH v Paranova                    1. Declare that, by leaving in force a system of authorization
               Pharmazeutika Handels GesmbH                                and a quota system for combined transport operations, the
                                                                           Italian Republic has failed to fulfil its obligations under
                         (Case C-443/99)                                   Council Directive 92/106/EEC (1) of 7 December 1992 on
                                                                           the establishment of common rules for certain types of
                          (2000/C 34/26)                                   combined transport of goods between Member States, in
                                                                           particular Article 2 thereof;
Reference has been made to the Court of Justice of the
European Communities by an order of the Oberlandesgericht
Wien (Higher Regional Court, Vienna) of 5 November 1999,               2. Order the Italian Republic to pay the costs.
which was received at the Court Registry on 22 November
1999, for a preliminary ruling in the case of Merck, Sharp &
Dohme GmbH v Paranova Pharmazeutika Handels GesmbH
on the following question:                                             Contentions and principal arguments adduced in support
Must Article 7(2) of the First Council Directive of 21 December
1988 to approximate the laws of the Member States relating             Article 2 of Directive 92/106/EEC requires the Member States,
to trade marks (89/104/EEC) (1) be interpreted as meaning              by 1 July 1993, to liberalise the combined transport operations
that a trade mark owner may oppose the marketing of a                  referred to in Article 1 from all quota systems and systems of
pharmaceutical product put on the market under his trade               authorization.
mark where the importer has repackaged it and reaffixed the
trade mark and has complied with the other requirements set
forth in the Court of Justice judgment in Joined Cases                 The Italian Republic has infringed that article because, despite
C-427/93, C-429/93 and C-436/93 (2) (the product inside the            having changed the system of special authorisations for
packaging must not be affected, the manufacturer and origin            combined transport operations by converting it into a system
must be clearly indicated, the reputation of the trade mark or         of general authorisations, it has nevertheless kept in force a
its owner must not be damaged as a consequence of poor                 system of authorisations for combined transport operations.
packaging, and the trade mark owner must be given notice
before the repackaged pharmaceutical product is put on sale),
but the marketability of the product would be jeopardised              Moreover, by not issuing any general authorisation in accor-
without such repackaging solely because a significant pro-             dance with Article 1 of the Decree of 27 June 1992 in order
portion of the consumers of pharmaceutical products in the             to enable carriers to undertake combined transport operations,
State of importation is suspicious of pharmaceutical products          the Italian Republic has infringed Article 2 of the directive in
which have clearly been produced for the market of another             so far as it has kept in force a quota system for combined
State (in which a different language is spoken) and are inside         transport operations.
packagings which have been adapted merely by means of
self-stick labels to the domestic provisions governing the sale
of pharmaceutical products?
                                                                       (1) OJ 1992 L 368, p. 38.
(1) OJ L 40 of 11.2.1989, p. 1.
(2) [1996] ECR I-3457.


title: Case C-295/10: Reference for a preliminary ruling from the Lietuvos Vyriausiasis Administracinis Teismas (Republic of Lithuania), lodged on 15 June 2010 — Genovaitė Valčiukienė, Julija Pekelienė, the public organisation ‘The Lithuanian Green Movement’ , Petras Girinskis and Laurynas Arimantas Lašas v Municipal Council of the District of Pakruojas, the Šiauliai Centre for Public Health and the Šiauliai Regional Department for Environmental Protection

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/29

         Reference for a preliminary ruling from the Lietuvos Vyriausiasis Administracinis Teismas (Republic of Lithuania), lodged on 15 June 2010 — Genovaitė Valčiukienė, Julija Pekelienė, the public organisation ‘The Lithuanian Green Movement’, Petras Girinskis and Laurynas Arimantas Lašas v Municipal Council of the District of Pakruojas, the Šiauliai Centre for Public Health and the Šiauliai Regional Department for Environmental Protection
   (Case C-295/10)
   ()
   2010/C 221/47
   Language of the case: Lithuanian

      Referring court

   Lietuvos Vyriausiasis Administracinis Teismas (Supreme Administrative Court of Lithuania)

      Parties to the main proceedings

      Appellants: Genovaitė Valčiukienė, Julija Pekelienė, the public organisation ‘The Lithuanian Green Movement’, Petras Girinskis and Laurynas Arimantas Lašas

      Respondents: Municipal Council of the District of Pakruojas, the Šiauliai Centre for Public Health and the Šiauliai Regional Department for Environmental Protection

      Other parties to the proceedings: the private companies ‘Sofita’ and ‘Oltas’, the office of the Governor of the Šiauliai Region, Rimvydas Gasparavičius and Rimantas Pašakinskas

      Questions referred

               1.

               Can the determination that a strategic assessment of effects on the environment need not be carried out in the case of documents relating to land planning at local level, in the detailed conclusions of which only one subject of economic activity is mentioned, as laid down in the legislation of the Republic of Lithuania, inter alia in point 3.4 of Decree No 967 of the Government of the Republic of Lithuania of 18 August 2004‘confirming the schedule governing the procedure for the strategic assessment of the environmental effects of plans and programmes’, be regarded as a specification of types of plans and programmes within the meaning of Article 3(5) of Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment? (1)

               2.

               Are the provisions of national law applicable in the present case, which provide that, in each specific case in which the potential significance of effects on the environment is not determined, a strategic assessment of the effects on the environment of land planning documents applied to small areas of land at local level, as in the present case, is not to be carried out solely on the basis that reference is made in those documents to one subject of economic activity, compatible with the requirements of Article 3(2)(a), 3(3) and 3(5) of Directive 2001/42?

               3.

               Are the provisions of Directive 2001/42, including Article 11(1) thereof, to be construed as meaning that in circumstances such as those obtaining in the present case, in which an environmental impact assessment was carried out pursuant to Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, (2) the requirements of Directive 2001/42 are not applicable?

               4.

               Does the scope of application of Article 11(2) of Directive 2001/42 encompass Directive 85/337?

               5.

               If the answer to Question 4 is in the affirmative, does the fact that an assessment has been carried out pursuant to Directive 85/337 mean that the obligation to carry out an assessment of effects on the environment pursuant to the requirements of Directive 2001/42, in a situation such as that which has arisen in the present case, would be regarded as constituting duplication of assessment within the meaning of Article 11(2) of Directive 2001/42?

               6.

               If the answer to Question 5 is in the affirmative, does Directive 2001/42, including Article 11(2) thereof, place Member States under an obligation to provide in national law for joint or coordinated requirements governing the assessment to be carried out pursuant to Directive 2001/42 and Directive 85/337 with a view to avoiding duplication of assessment?

      (1)  OJ 2001 L 197, p. 30.

      (2)  OJ 1985 L 175, p. 40.


title: Case T-24/08: Judgment of the General Court of 4 March 2010 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle with a helically formed neck) (Community trade mark — Opposition proceedings — Application for a three-dimensional Community trade mark — Shape of a bottle with a helically formed neck — Earlier three-dimensional Community trade mark consisting in the shape of a bottle with a helically formed neck — Relative ground for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/41

         Judgment of the General Court of 4 March 2010 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle with a helically formed neck)
   (Case T-24/08) (1)

   (Community trade mark - Opposition proceedings - Application for a three-dimensional Community trade mark - Shape of a bottle with a helically formed neck - Earlier three-dimensional Community trade mark consisting in the shape of a bottle with a helically formed neck - Relative ground for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 113/64
   Language of the case: English

      Parties

      Applicant: Weldebräu GmbH & Co. KG (Plankstadt, Germany) (represented by: W. Göpfert, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: P. Bullock, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Kofola Holding a.s. (Ostrava, Czech Republic) (represented by: S. Hejdová and R. Charvát, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 15 November 2007 (Case R 1096/2006-4), relating to opposition proceedings between Weldebräu GmbH & Co. KG and Kofola Holding a.s.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Weldebräu GmbH & Co. KG to pay the costs.

      (1)  OJ C 64, 8.3.2008.


title: Case C-542/03: Reference for a preliminary ruling by the Bundesfinanzhof by order of that court of 18 November 2003 in the case of Hauptzollamt Hamburg-Jonas against Milupa GmbH & Co KG

text:
C 59/12                 EN                         Official Journal of the European Union                                           6.3.2004
Reference for a preliminary ruling by the Bundesfinanzh-                   The applicant claims that the Court should:
of by order of that court of 18 November 2003 in
the case of Hauptzollamt Hamburg-Jonas against Milupa
                         GmbH & Co KG                                      1.    declare that, by failing to observe the mandatory time-
                                                                                limits for entry in the accounts laid down by Article
                                                                                220(1) of the Community Customs Code (1) (and by
                         (Case C-542/03)
                                                                                Article 5 of Regulation No 1854/89 (2)) the Kingdom of
                                                                                Spain has failed to fulfil its obligations under those
                          (2004/C 59/20)                                         provisions of Community law;
                                                                           2.    declare, furthermore, that inasmuch as late establishment
                                                                                caused delays to the making available of own resources,
Reference has been made to the Court of Justice of the
                                                                                by not paying default interest in accordance with
European Communities by order of the Bundesfinanzhof
                                                                                Article 11 of Regulation 1552/89 (3) up until 31 May
(Federal Finance Court, Germany) of 18 November 2003,
                                                                                2000 and in accordance with Article 11 of Regulation
received at the Court Registry on 23 December 2003, for a
                                                                                No 1150/2000 (4) from 31 May 2000, the Kingdom of
preliminary ruling in the case of Hauptzollamt Hamburg-Jonas
                                                                                Spain has failed to fulfil its obligations under the relevant
against Milupa GmbH & Co KG on the following question:
                                                                                provision of Community law;
Are the second sentence of the first subparagraph of
                                                                           3.    order the Kingdom of Spain to pay the costs.
Article 7(1), the first subparagraph of Article 7(2) and
Article 7(5) of Regulation (EC) No 1222/94, as amended by
Regulation (EC) 229/96, (1) to be interpreted as meaning that
the party concerned is not entitled to grant of an export refund
if, in the production of the exported goods, it was not the
product declared by him, which under the first indent of
Article 1(2)(c) of Regulation (EC) No 1222/94 (2) is assimilated
to skimmed milk powder of the type described in Annex A                    Pleas in law and main arguments
(PG 2), that was used but another product which, in respect of
the non-fat part of its dry matter content, is also assimilated to
skimmed milk powder of the type described in Annex A (PG 2)
by virtue of the first indent of Article 1(2)(f) of Regulation (EC)        The Community rules on own resources are clear in that they
No 1222/94?                                                                refer to the time when the Spanish authorities are obliged to
                                                                           establish such resources: that moment is when the national
                                                                           authorities are in a position to calculate the amount due and
(1) OJ 1996 L 30, p. 24.                                                   to notify the chargeable person that all the relevant Community
(2) OJ 1994 L 136, p. 5.                                                   provisions have been complied with. In the event of a failure
                                                                           to enter duties deriving from a customs debt in the accounts,
                                                                           those rules do not allow the national administration to apply
                                                                           time-limits provided for in their national legislation, which are
                                                                           different from the compulsory time-limits laid down by
                                                                           Community law. Such time-limits must be observed once the
                                                                           debtor is identified and the amount of the debt can be
                                                                           calculated.
Action brought on 23 December 2003 by the Commission
of the European Communities against the Kingdom of
                               Spain
                                                                           The time at which establishment of own resources must take
                                                                           place is independent of notification to the debtor or of a
                         (Case C-546/03)                                   definitive decision adopted by the national authorities. Those
                                                                           circumstances are relevant only to the relationship between the
                          (2004/C 59/21)                                   national authorities and the debtor, whereas the relationship
                                                                           between the Member State and the Community, as regards
                                                                           own resources, is governed exclusively by compliance with
                                                                           objective conditions concerning entry in the accounts. The
                                                                           obligation to establish own resources and subsequently the
An action against the Kingdom of Spain was brought before the              obligation to make them available is independent of the
Court of Justice of the European Communities on 23 December                additional time-limits provided for by the national legislation
2003 by the Commission of the European Communities,                        in order to allow the debtor to submit his observations.
represented by M. Díaz-Llanos La Roche and G. Wilms, acting                Therefore, the practice followed by the Spanish authorities
as Agents, with an address for service in Luxembourg.                      does not comply with Community rules.


title: Case F-27/10: Action brought on 5 May 2010 — Begue and Others v Commission

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/58

         Action brought on 5 May 2010 — Begue and Others v Commission
   (Case F-27/10)
   2010/C 179/101
   Language of the case: French

      Parties

      Applicants: Christian Begue (Marcy, France) and Others (represented by: A. Woimant, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision refusing the applicants payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations.

      Form of order sought

   The applicants claim that the Tribunal should:

               —

               Annul the decision (No R/467/09) of the authority authorised to conclude contracts rejecting the applicants ‘complaints’ against the rejection of 3 September 2009 concerning the application for payment with retroactive effect of the allowance for standby duty referred to in Article 56b of the Staff Regulations of Officials;

               —

               Order the European Commission to pay the costs.


title: Case T-198/03: Judgement of the Court of First Instance of  30 May 2006  — Bank Austria Creditanstalt AG v Commission of the European Communities (Competition — Administrative procedure — Publication of a decision finding an infringement of Article 81 EC and imposing fines — Fixing of deposit and borrowing rates by Austrian banks ( Lombard Club ) — Rejection of a request to omit certain passages)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/31

         Judgement of the Court of First Instance of 30 May 2006 — Bank Austria Creditanstalt AG v Commission of the European Communities
   (Case T-198/03) (1)

   (Competition - Administrative procedure - Publication of a decision finding an infringement of Article 81 EC and imposing fines - Fixing of deposit and borrowing rates by Austrian banks (‘Lombard Club’) - Rejection of a request to omit certain passages)
   (2006/C 178/57)
   Language of the case: German
   Parties

      Applicant: Bank Austria Creditanstalt AG, established in Vienna (Austria) (represented by: C. Zschocke and J. Beninca, lawyers)

      Defendant: Commission of the European Communities (represented initially by: S. Rating and subsequently by A. Bouquet, acting as Agents, and by D. Waelbroeck and U. Zinsmeister, lawyers)
   Re:
   Annulment of the decision of the Commission's Hearing Officer of 5 May 2003 to publish the non-confidential version of the Commission decision of 11 June 2002 in Case COMP/36.571/D-1 — Austrian banks (‘Lombard Club’)
   Operative part of the judgement
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs.

      (1)  OJ C 213, 6.9.2003.


2 . 3 . 96           1 EN 1                Official Journal of the European Communities                             No C 64/25
which the Court of First Instance held that amending                        Removal from the register of Case T-84/95 ( )
Regulations which, after 3 October 1990, fixed a weighting                                       ( 96/C 64/49 )
for Germany by reference to the cost of living in Bonn were
unlawful; the Commission applied Regulation ( ECSC, EC,                             (Language of the case: French)
Euratom ) No 3161 /94, thereby remedying the illegality
which had been established only as from 1 July 1994 .                 By order of 12 January 1996 the President of the First
The applicants also allege an infringement of the principle of        Chamber of the Court of First Instance of the European
                                                                      Communities ordered the removal from the register of Case
equal treatment, since, as from 1 October 1990, they did not
enjoy a purchasing power equivalent to that of other                  T-84/95 : Rene Bebin v. Commission of the European
                                                                      Communities .
officials who did not transfer part of their remuneration to
Germany.                                                              0 ) OJ No C 208 , 12 . 8 . 1995 .
Finally, the Commission failed to ensure that the weighting
for Germany was fixed, in accordance with the Staff
Regulations, at the level of the capital, Berlin, thereby
infringing its duty to have due regard for the interests of
                                                                           Removal from the register of Case T-138/95 ( ] )
officials. Nor did it bring any action for the annulment of the
Regulation in question, even though it was clearly unlawful;                                     ( 96/C 64/50 )
it thereby failed in its task of ensuring the observance of
Community law, a task which also falls within the duty to                          (Language of the case: German)
have due regard for the interests of officials, when the
persons towards whom the unlawful provision and                       By order of 16 January 1996 the President of the First
secondary legislation is directed are officials and other             Chamber of the Court of First Instance of the European
servants .
                                                                      Communities ordered the removal from the register of Case
                                                                      T-138/95 : Friedrich Engelking v. Council of the European
                                                                      Union and Commission of the European Communities .
                                                                      (!) OJ No C 208 , 12 . 8 . 1995 .
        Removal from the register of Case T-276/94 (')
                            ( 96/C 64/48 )
               (Language of the case: French)                               Removal from the register of Case T-2 13/95 R
                                                                                ( 96/C 64/51 )
By order of 23 January 1996 the President of the Third
Chamber of the Court of First Instance of the European
Communities ordered the removal from the register of Case                            (Language of the case: Dutch)
T-276/94 : Adam Buick v. Commission of the European
Communities .
                                                                      By order of 24 January 1996 the President of the First
                                                                      Chamber of the Court of First Instance of the European
( J ) OJ No C 304 , 29 . 10 . 1994 .                                  Communities ordered the removal from the register of Case
                                                                      T-213/95 R: Stichting Certificatie Kraanverhuurbedrijf v.
                                                                      Commission of the European Communities.


title: Case C-658/16: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2016 — Elliot International Lp and Others v Commissione Nazionale per le Società e la Borsa (Consob)

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/12

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 19 December 2016 — Elliot International Lp and Others v Commissione Nazionale per le Società e la Borsa (Consob)
   (Case C-658/16)
   (2017/C 121/17)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Elliot International Lp, The Liverpool Limited Partnership, Elliot Associates L.P.

      Defendant: Commissione Nazionale per le Società e la Borsa (Consob)

      Question referred

   Is the proper application of the first and second subparagraphs of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, (1) in the light of the general principles laid down in Article 3(1) thereof, and in the light of the proper application of the general principles relating to the protection of legitimate expectations, proportionality, reasonableness, transparency and non-discrimination, prevented by a provision of national law such as Article 106(3)(d)(2) of Legislative Decree No 58 of 24 February 1998 (consolidating all provisions in the field of financial intermediation within the meaning of Articles 8 and 21 of Law No 52 of 6 February 1996), as subsequently amended, and Article 47 octies of the Decision of the Commissione Nazionale per le Società e la Borsa — Consob No 11971 of 14 May 1999 (Order implementing Legislative Decree No 58 of 24 February 1998 laying down rules applicable to offerees), as subsequently amended, in so far as those provisions, in authorising Consob to increase the price of the takeover bid as referred to in Article 106 where collusion is found to have taken place between the offeror or the persons acting in concert with it, on the one hand, and one or more sellers, on the other hand, simply refer to the criterion of the ‘price ascertained’ without specifying the parameters and criteria for such a finding?

      (1)  OJ 2004 L 142, p. 12.


title: Case F-26/07: Order of the Civil Service Tribunal of 9 July 2010 — Potoms and Scillia v Parliament

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/76

      Order of the Civil Service Tribunal of 9 July 2010 — Potoms and Scillia v Parliament
      (Case F-26/07) (1)

      ()
      (2010/C 288/146)
      Language of the case: French
      The President of the First Chamber has ordered that the case be removed from the register.

         (1)  OJ C 117, 26.5.2007, p. 37.


title: Case C-26/00: Action brought on 29 January 2000 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
27.5.2000               EN                  Official Journal of the European Communities                                        C 149/13
The applicant claims that the Court should:                            to the full authorisation procedure — entailing an inquiry by
                                                                       the Conseil Supérieur d’Hygiène Publique de France and in
                                                                       some cases by the Académie Nationale de Médecine — which
— Declare that the French Republic has failed to fulfil its            does not set any deadline for the handling of applications,
     obligations under Article 30 of the EC Treaty (now, after         which, in practice, is not completed within a reasonable
     amendment, Article 28 EC) in so far as:                           period. Lastly, the French legislation does not satisfy the
                                                                       requirement that any refusal to grant authorisation must entail
                                                                       certain procedural steps so as to ensure that the trader
     — French legislation fails to provide for the free move-          concerned can challenge that decision before the courts.
         ment of traditional foodstuffs and foodstuffs intended
         for special nutritional purposes, which are lawfully
         manufactured and/or marketed in other Member States
         but contain additives (such as vitamins, minerals and
         other ingredients) not provided for under the French
         legislation;
                                                                       Action brought on 29 January 2000 by the Kingdom of
     — in particular, French legislation fails to provide a            the Netherlands against the Commission of the European
         simplified procedure for having a substance entered on                                   Communities
         the national list of permitted additives, which is
         necessary if the above foodstuffs are to be marketed in
         France;                                                                                (Case C-26/00)
                                                                                (2000/C 149/22)
     — the French authorities have impeded the marketing of
         the above foodstuffs in France without establishing           An action against the Commission of the European Communi-
         that they would pose a danger to public health;               ties was brought before the Court of Justice of the European
                                                                       Communities on 29 January 2000 by the Kingdom of the
                                                                       Netherlands, represented by Marc Fierstra, Head of the Euro-
— Order the French Republic to pay the costs of the                    pean Law Section in the Ministry of Foreign Affairs, The
     proceedings.                                                      Hague, and Jantine van Bakel, Member of the Legal Service in
                                                                       that Ministry, acting as Agents.
                                                                       The applicant claims that the Court should:
Pleas in law and main arguments                                        1. Annul Commission Regulation (EC) No 2423/1999 (1) of
                                                                            15 November 1999 introducing safeguard measures in
                                                                            respect of sugar falling within CN code 1701 and mixtures
                                                                            of sugar and cocoa falling within CN codes 1806 10 30
Infringement of Article 28 EC: in the absence of any Com-                   and 1806 10 90 originating in the overseas countries and
munity measure harmonising the approach to additives in                     territories;
traditional foodstuffs, or in foodstuffs intended for special
nutritional purposes, which have not been the subject of a
                                                                       2. Order the Commission to pay the costs of the proceedings.
specific directive, it is for the Member States to define in their
national legislation the applicable rules, provided that these
comply with the EC Treaty, specifically with Articles 28 and
30 EC. On that point, the Commission maintains that, whereas           Pleas in law and main arguments
it is permissible for legislation pursuing a legitimate health
policy objective to set up a prior authorisation system, the           — Infringement of Article 109(1) of Council Decision
Member States have no right to require technical or chemical                91/482/EEC, as amended (‘the OCT Decision’), so far as
analyses or laboratory tests in cases where the same analyses               sugar is concerned (CN code 1701): the Commission has
and tests have already been carried out in another Member                   in this case failed to adduce the evidence necessary to
State and the results are already to hand or available upon                 establish that there are ‘serious difficulties’ and that safe-
request. The French legislation, however, makes no provision                guard measures must be taken. In particular, the quantities
for mutual recognition in this area, with a view to ensuring                of OCT sugar in question are extremely small in both
the free movement of products lawfully manufactured or                      absolute and relative terms. At no time has the Commission
marketed in another Member State and which meet standards                   been able to provide the slightest evidence whatsoever that
equivalent to those set in France for the protection of public              OCT sugar is being sold at below the intervention price.
health. Nor does the French legislation provide for a simplified            The Commission has also misused its powers inasmuch as
procedure for having a substance lawfully used in another                   the measures are clearly designed to protect European
Member State entered on the national list of permitted                      sugar producers against any potential competition from
additives. Thus, under the French rules, foodstuffs already                 imports from outside the Community that are not subject
manufactured or marketed in another Member State are subject                to quota.
 ---pagebreak--- C 149/14               EN                     Official Journal of the European Communities                                     27.5.2000
— Infringement of Article 109(1) of the OCT Decision, so far                  7 June1990 on the freedom of access to information on
     as mixtures of cocoa and sugar (CN codes 1806 10 30                      the environment (1), and in particular Article 3(1) and (4)
     and 1806 10 90) are concerned: here too, the amounts in                  thereof, for failing to ensure that, within a period of two
     question are very small; if one extrapolates from the                    months after the request, the authorities of the Land
     Eurostat figures, one arrives at the figure of 15 278 tonnes             Schleswig-Holstein either provided the information
     for the whole of 1999. The suggestion that these mixtures                requested or refused the request.
     are ‘[imported] ... at prices below those at which Com-
     munity producers can sell comparable products’ is not               (2) order the Federal Republic of Germany to pay the costs.
     supported by any evidence. The fact that the Commission
     also misused its powers with regard to the mixtures of
     cocoa and sugar is in particular also evident from the
     nature of the measure laid down in Article 2 of the                 Pleas in law and main arguments
     regulation. While it may be a relatively innocuous measure
     (provided that it is not employed by customs authorities            The Commission submits that the practice referred to in the
     for the purpose of carrying out obstructive checks), a              application does not comply with the requirements of Article
     customs surveillance mechanism such as that referred to             3 of Directive 90/313/EEC, because the word ‘respond’ in the
     in Article 2 has as its purpose to collect information in           first sentence of Article 3(4) must be interpreted as including,
     order to determine whether the imports in question may              on the one hand, the provision of the information requested
     disrupt the market. The Commission’s reasoning is based             or permission to inspect the information, and, on the other
     on false premises.                                                  hand, the refusal of a request. The time element is of crucial
                                                                         significance for the efficiency of the whole system under the
— Infringement of Article 253 EC: the reasons set out in                 directive. If an authority were merely required to give an
     recitals (1) through (5) are inadequate, internally inconsist-      interim answer within the two-month period, stating that
     ent and incomprehensible.                                           access to the information can be granted at a later date, the
                                                                         system would not be effective. The Commission maintains that
— Infringement of Article 109(2) of the OCT Decision and                 only its interpretation of Article 3(4) of the directive accords
     the principle of proportionality: should it none the less be        with the aim of the directive and the effectiveness of the
     necessary to fix a threshold price for imports of OCT               opportunities for the persons concerned to obtain legal
     sugar, it would have been much more logical to proceed              protection, which the directive seeks.
     on the basis of a minimum selling price than on that of a
     minimum cif import price.
                                                                         (1) OJ L 158, 23.6.1990, p. 56.
(1) OJ 1999 L 294, p. 11.
                                                                         Action brought on 10 February 2000 by the Kingdom of
Action brought on 1 February 2000 by the Commission                      Spain against the Commission of the European Communi-
of the European Communities against the Federal Repub-                                                   ties
                          lic of Germany
                                                                                (Case C-36/00)
                          (Case C-29/00)
                                                                                (2000/C 149/24)
                         (2000/C 149/23)
                                                                         An action against the Commission of the European Communi-
An action against the Federal Republic of Germany was                    ties was brought before the Court of Justice of the European
brought before the Court of Justice of the European Communi-             Communities on 10 February 2000 by the Kingdom of Spain,
ties on 1 February 2000 by the Commission of the European                represented by Mr Santiago Ortiz Vaamonde, acting as Agent,
Communities, represented by Götz zur Hausen, Legal Adviser,              with an address for service in Luxembourg at the Spanish
with an address for service at the office of Carlos Gómez de la         Embassy, 4-6 Boulevard E. Servais.
Cruz, a Member of the Legal Service of the European Com-
mission, Wagner Centre, Kirchberg.
                                                                         The applicant claims that the Court should:
The Commission claims that the Court should:                             1. Declare void the decision of the Commission of 26 October
                                                                              1999 declaring certain aid granted to publicly owned
(1) declare the Federal Republic of Germany in breach of                      Spanish shipyards incompatible with the common market
     its obligations under Council Directive 90/313/EEC of                    and ordering its recovery,