title: Judgment of the Court of First Instance of 14 April 1999 in Case T-50/98: Lars Bo Rasmussen v. Commission of the European Communities (Officials - Refusal of promotion - Consideration of comparative merits - Assessment criteria - Action for annulment - Action for damages)

text:
C 160/20                 EN                      Official Journal of the European Communities                                        5.6.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 SpA and Dole Fresh Fruit Europe Ltd & Co, represented by
                                                                            Bernard O’Connor and Bonefacio Garcı́a Porras, with an
                           of 14 April 1999                                 address for service in Luxembourg at the Chambers of Arsène
                                                                            Kronshagen, 22, rue Marie Adélaïde.
in Case T-50/98: Lars Bo Rasmussen v. Commission of the
                     European Communities (1)                               The applicants claim that the Court should:
(Officials — Refusal of promotion — Consideration of                        — declare void, pursuant to articles 173 and 174 of the EC
comparative merits — Assessment criteria — Action for                           Treaty, Commission Regulation (EC) No 1721/98 in so far
                 annulment — Action for damages)                                as it affects the applicants, or in the alternative to declare
                                                                                the said regulation void erga omnes,
                           (1999/C 160/38)
                                                                            — order the Commission, pursuant to articles 178 and 215
                                                                                of the EC Treaty, to make good any damage, with interest
                      (Language of the case: French)                            thereon, caused to the applicants by the wrongful adoption
                                                                                of Regulation (EC) No 1721/98, and
In Case T-50/98: Lars Bo Rasmussen, an official of the
Commission of the European Communities, residing at Dal-                    — to declare that the Commission pay the cost incurred in
heim (Luxembourg), represented by Carlo Revoldini, of the                       the making of this application.
Luxembourg Bar, with an address for service in Luxembourg
at the latter’s Chambers, 108, route de Longwy, v. Commission
of the European Communities (Agents: Christine Berardis-                    Pleas in law and main arguments
Kayser, assisted by Alberto Dal Ferro) — application, first, for
annulment of the decision of the Commission not to promote
the applicant to grade A 4 in the 1997 promotions procedure                 The present application concerns the administration by the
and instead to promote the 118 officials considered to be the               Commission of the rules governing the allocation of the annual
most deserving of promotion and, second, for compensation                   licence entitlement to the applicants for the import of bananas
for the damage alleged — the Court of First Instance (Second                within the third-country tariff rate quota established by article
Chamber), composed of: B. Vesterdorf, President, and                        18(1) of Council Regulation (EEC) No 404/93 of 13 February
A. Potocki and C. W. Bellamy, Judges; A. Mair, Administrator,               1993 (as amended), on the common organisation of the
for the Registrar, has given a judgment on 14 April 1999, in                market in bananas (1). The application arises out of the
which it:                                                                   adoption, by the Commission, of an excessively severe
                                                                            reduction coefficient based on what the applicants suppose to
1. annuls the Commission’s decision not to promote the applicant            be an incorrect figure for reference quantity which reduces
     to grade A 4 in the 1997 promotions procedure,                         their licence entitlement for the 1998 marketing year. The
                                                                            applicants claim that this reference quantity is significantly
2. dismisses the application for annulment of the Commission’s              higher than the highest possible figure for reference quantity.
     decision to promote, in the context of the same procedure, the
     officials considered to be most deserving of promotion,                They point out in this regard that the difference between the
                                                                            figures given in the licence for actual imports and the reference
3. dismisses the claim for damages,                                         quantities for the reference period 1994 to 1996 is in the
                                                                            region of 13 %.
4. orders the Commission to pay the costs.
                                                                            The applicants claim that the application of incorrect reduction
(1) OJ C 137, 2.5.1998.                                                     coefficients deprives them of their legal right to import
                                                                            bananas up to the maximum of their legal entitlement. In
                                                                            addition, the non-importation of Category A bananas in 1998
                                                                            would still mean that they are also deprived of their future
                                                                            entitlement to import Category A bananas for those marketing
                                                                            years for which 1998 is a reference year.
Action brought on 20 October 1998 by the Comafrica
SpA and Dole Fresh Fruit Europe Ltd & Co against the                        They submit in this respect that the fixing by the Commission
          Commission of the European Communities                            of the definitive reduction coefficient on the basis of such
                                                                            incorrect information is manifestly unlawful. It will give rise
                                                                            to gradual erosion of the applicant’s import rights and will
                            (Case T-174/98)                                 result in the loss of all rights to operate in the banana market.
                                                                            That erosion infringes the applicant’s fundamental rights
                           (1999/C 160/39)                                  protected by Community law, such as the right to property
                                                                            and the right to pursue a professional or trade activity.
                     (Language of the case: English)
                                                                            (1) OJ L 47, 25.2.1993, p. 1.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 20 October 1998 by Comafrica


title: Case T-251/09: Action brought on 26 June 2009 — Société des Pétroles Shell v Commission

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/32

         Action brought on 26 June 2009 — Société des Pétroles Shell v Commission
   (Case T-251/09)
   2009/C 193/50
   Language of the case: French

      Parties

      Applicant: Société des Pétroles Shell (Colombes, France) (represented by: P. Hubert, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul, in its entirety or in part, the implied negative response of the Commission of 9 May 2009 to the request for access to documents held by the Commission (reference GESTDEM 372/2009) and draw all the appropriate conclusions therefrom with regard to the applicant’s access to the documents requested;

               —

               In the alternative, should the Court consider it a decision, annul, in its entirety or in part, the letter of 7 May 2009 from the Secretariat General of the Commission stating that it is not possible to reply to the applicant’s request for access to the Commission documents (reference GESTEDEM 372/2009) and draw all the appropriate conclusions therefrom with regard to the applicant’s access to the documents requested;

               —

               Order the Commission to pay all the costs.

      Pleas in law and main arguments

   By the present action, the applicant seeks annulment of the implied decision of the Commission refusing it access to all the correspondence, relating to the enquiry into practices on the jet fuel supply market in La Réunion, held by the Commission or exchanged by the Commission and the French competition authority, in particular under Article 11(4) of Regulation No 1/2003. In the alternative, should the Court consider it an express decision of refusal, the applicant seeks annulment of the letter of the Secretariat General which states that the Commission is not in a position to reply to the request made by the applicant for access to the documents.
   In support of its action, the applicant raises pleas in law identical or similar to those raised in Case T-245/09 Shell Hellas v Commission.


title: Case C-229/11: Reference for a preliminary ruling from the Arbeitsgericht Passau (Germany) lodged on 16 May 2011 — Alexander Heimann v Kaiser GmbH

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/20

         Reference for a preliminary ruling from the Arbeitsgericht Passau (Germany) lodged on 16 May 2011 — Alexander Heimann v Kaiser GmbH
   (Case C-229/11)
   2011/C 269/38
   Language of the case: German

      Referring court

   Arbeitsgericht Passau

      Parties to the main proceedings

      Applicant: Alexander Heimann

      Defendant: Kaiser GmbH

      Questions referred

               1.

               Must Article 31(2) of the Charter of Fundamental Rights of the European Union of 12 December 2007 or Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time (1) be interpreted as meaning that they preclude national legislation or practice according to which, if there is a reduction in the days to be worked each week as a result of a lawful order specifying short-time working, the entitlement to paid annual leave of a worker on short-time working is adjusted pro rata to reflect the ratio between the number of working days each week during the period of short-time working and the number of working days each week for a full-time worker and, as a result, during the period of short-time working, the short-time worker accrues a correspondingly reduced entitlement to annual leave?

               2.

               If the first question is answered in the affirmative:
               Must Article 31(2) of the Charter of Fundamental Rights of the European Union of 12 December 2007 or Article 7(1) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time be interpreted as meaning that they preclude national legislation and practice according to which, if the number of days to be worked each week is reduced to zero as a result of a lawful order specifying ‘zero hours short-time working’, the entitlement to paid annual leave of a worker on short-time working is adjusted pro rata to nothing and, as a result, during the period of ‘zero hours short-time working’, the short-time worker does not accrue any entitlement to annual leave?

      (1)  OJ 2003 L 299, p. 9.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 12 December 1996 in Case C-104/95 (reference for a preliminary ruling from the Polimeles Protodikio, Athens): Georgios Kontogeorgas v. Kartonpak AE (Approximation of laws - Self-employed commercial agents - Entitlement to commission - Commercial transactions concluded during the period covered by the agency contract)

text:
No C 40/4            1 EN 1                 Official Journal of the European Communities                                       8 . 2 . 97
2 . Articles 30 and 36 of the EC Treaty preclude                        H. Ragnemalm ( Rapporteur ), Judges; D. Ruiz-Jarabo
     application of national legislation which grants the               Colomer, Advocate-General ; R. Grass, Registrar, has given
     holder of a patent for a pharmaceutical product the                a judgment on 5 December 1996 in which it:
     right to oppose importation by a third party of that
     product from another Member State in circumstances
                                                                        I. declares that, by failing to adopt within the prescribed
     where the holder first put the product on the market
                                                                            periods the laws, regulations and administrative
     in that State after its accession to the European
                                                                            provisions necessary to comply with, first, Council
     Community but before the product could be protected
                                                                            Directive 92/118/EEC of 17 December 1992 laying
     by a patent in that State, unless the holder of the                    down animal health and public health requirements
     patent can prove that he is under a genuine, existing                  governing trade in and imports into the Community of
     legal obligation to market the product in that Member                  products not subject to the said requirements laid
     State.
                                                                            down in specific Community rules referred to in
                                                                            Annex A (1) to Directive 89/662/EEC and, as regards
(') OJ No C 248 , 23 . 9 . 1995 , and                                       pathogens, to Directive 90/425/EEC and, second,
    OJ No C 268 , 14 . 10. 1995 .                                           Council Directive 93/S2/EEC of 24 June 1993
                                                                            amending Directive 89/556/EEC on animal health
                                                                            conditions governing intra-Community trade in and
                                                                            importation from third countries of embryos of
                                                                            domestic animals of the bovine species, the Hellenic
                                                                            Republic has failed to fulfil the obligations imposed on
                                                                            it by Articles 20 (1 ) and 2 (1 ) respectively of those
               JUDGMENT OF THE COURT                                        Directives;
                          ( Sixth Chamber)
                                                                       2 . orders the Hellenic Republic to pay the costs.
                      of 5 December 1996
in    Case    C-91/96 Commission of the European                       (') OJ No C 145 , 18 . 5 . 1996 .
            Communities v. Hellenic Republic ( 1 )
(Failure to fulfil obligations not contested — Directives
92/118/EEC and 93/52/EEC — Failure to transpose
                 within the prescribed periods)
                             ( 97/C 40/07 )                                           JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
                 (Language of the case: Greek)                                              of 12 December 1996
                                                                       in Case C-104/95 (reference for a preliminary ruling from
                                                                       the Polimeles Protodikio, Athens ): Georgios Kontogeorgas
  (Provisional translation; the definitive translation will be                                v. Kartonpak AE (')
          published in the European Court Reports)
                                                                       (Approximation of laws — Self-employed commercial
                                                                       agents — Entitlement to commission — Commercial
In Case C-91/96: Commission of the European                            transactions concluded during the period covered by the
Communities ( Agent: Maria Condou-Durande ) v. Hellenic                                          agency contract)
Republic (Agents : Ioanna Galani-Maragkoudaki and Nana                                             ( 97/C 40/08 )
Dafniou ) — application for a declaration that, by failing
to adopt within the prescribed periods the laws,
regulations and administrative provisions necessary to                                  (Language of the case: Greek)
comply with, first, Council Directive 92/ 118/EEC of
17 December 1992 laying down animal health and public
                                                                         (Provisional translation; the definitive translation will be
health requirements governing trade in and imports into
the Community of products not subject to the said                                published in the European Court Reports)
requirements laid down in specific Community rules
referred to in Annex A ( I ) to Directive 89/662/EEC and, as           In Case C-104/95 : reference to the Court under Article 177
regards pathogens, to Directive 90/425/EEC ( OJ No L 62,               of the EC Treaty by the Polimeles Protodikio, Athens, for
15 . 3 . 1993, p. 49 ) and, second, Council Directive                  a preliminary ruling in the proceedings pending before
93/52/EEC of 24 June 1993 amending Directive                           that court between Georgios Kontogeorgas and Kartonpak
89/556/EEC on animal health conditions governing intra                AE on the interpretation of Article 7 (2 ) of Council
Community trade in and importation from third countries                Directive   86/653/EEC of 18          December   1986 on the
of embryos of domestic animals of the bovine species ( OJ              coordination of the laws of the Member States relating to
No L 175 , 19 . 7. 1993 , p. 21 ), the Hellenic Republic has           self-employed commercial agents ( OJ No L 382 , 31 . 12 .
failed to fulfil the obligations imposed on it by the Treaty           1986 , p. 17 ) — the Court ( Fifth Chamber ), composed of:
and by those Directives — the Court ( Sixth Chamber),                  D. A. O. Edward, acting for the President of the Chamber,
composed of G. F. Mancini, President of the Chamber,                   C. Gulmann, J. -P. Puissochet, P. Jann ( Rapporteur ) and M.
J. L. Murray, C. N. Kakouris, P. J. G. Kapteyn and                     Wathelet, Judges; G. Cosmas, Advocate-General; H. A.
 ---pagebreak--- 8 . 2 . 97            i EN |               Official Journal of the European Communities                                     No C 40/5
Riihl, Principal Administrator, for the Registrar, has given          1 . declares that, by failing to adopt within the period
a judgment on 12 December 1996 , in which it has ruled:                    prescribed the laws, regulations and administrative
                                                                           provisions necessary to comply with Council Directive
1 . The first indent of Article 7 (2) of Council Directive                  9 1 /271 /EEC of 21 May 1991 concerning urban waste
       86/653/EEC of 18 December 1986 on the                                water treatment, the Federal Republic of Germany has
       coordination of the laws of the Member States relating              failed to fulfil its obligations under Article 1 9 of that
       to self-employed commercial agents must be                           Directive;
      interpreted as meaning that, where a commercial agent
      is responsible for a geographical area , he is entitled to      2 . orders the Federal Republic of Germany to pay the
      commission on transactions concluded with customers                   costs .
      belonging to that area, even if they were concluded
       without any action on his part.                                (') OJ No C 286 , 28 . 10 . 1995 .
2 . Article 7 (2) of Directive 86/653/EEC must be
       interpreted to the effect that the meaning of the term
       'customer belonging to that area ' must be determined,
      where the customer is a legal person, by the place
      where the latter actually carries on its commercial
      activities. Where a company carries on its commercial                            JUDGMENT OF THE COURT
      activity in various places, or where the agent operates                                  ( Fifth Chamber )
       in several areas, other factors may be taken into
                                                                                of 12 December 1996
      account to determine the centre of gravity of the
       transaction effected, in particular the place where            in     Case     C-302/95 Commission of the             European
       negotiations with the agent took place or should, in                           Communities v. Italian Republic (')
       the normal course of events, have taken place, the
      place where the goods were delivered and the place              (Failure of a Member State to fulfil its obligations —
       where the establishment which placed the order is                 Directive 91/271/EEC — Urban waste water treatment)
       located.                                                                                ( 97/C 40/ 10 )
(■) OJ No C 174 , 8 . 7. 1995 .                                                         (Language of the case: Italian)
                                                                         (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                 JUDGMENT OF THE COURT                                In Case C-302/95 : Commission of the European
                          (Fifth Chamber)                             Communities ( Agents: Dominique Maidani and Laura
                       of 12 December 1996
                                                                      Pignataro ) v. Italian Republic ( Agent: Umberto Leanza ,
                                                                      assisted by Pier Giorgio Ferri ) — application for a
in      Case C-297/95 Commission of the European                      declaration that, by not adopting the laws, regulations or
         Communities v. Federal Republic of Germany ( 1 )             administrative provisions necessary to comply with
 (Failure by a Member State to fulfil obligations —                   Council Directive 91 /271/EEC of 21 May 1991
   Directive 91/271/EEC — Urban waste water treatment)                concerning urban waste water treatment ( OJ No L 135 ,
                                                                      30 . 5 . 1991 , p. 40 ) or, in any event, by not notifying the
                            ( 97/C 40/09 )                            Commission thereof, the Italian Republic has failed to
                                                                      fulfil its obligations under that Directive and under the EC
                  (Language of the case: German)                      Treaty — the Court ( Fifth Chamber ), composed of: J. C.
                                                                      Moitinho de Almeida, President of the Chamber, L. Sevon
   (Provisional translation; the definitive translation will be        ( Rapporteur ), D. A. O. Edward, P. Jann and M. Wathelet,
            published in the European Court Reports)                  Judges; P. Leger, Advocate-General ; R. Grass, Registrar,
                                                                      gave a judgment on 12 December 1996 , in which it:
In Case C-297/95 : Commission of the European
 Communities ( Agent: Gotz zur Hausen ) v. Federal                     1 . declares that, by not adopting the laws, regulations
Republic of Germany ( Agents : Ernst Roder and Bernd                        and administrative provisions necessary to comply
Kloke ) — application for a declaration that, by failing to                 with Council Directive 91 /271 /EEC of 21 May 1991
 adopt within the period prescribed the measures necessary                  concering urban waste water treatment, the Italian
to comply with Council Directive 91 /271 /EEC of 21 May                     Republic has failed to fulfil its obligations under
 1991 concerning urban waste water treatment ( OJ No                        Article 19 of that Directive;
 L 135 , 30 . 5 . 1991 , p. 40 ), the Federal Republic of
 Germany has failed to fulfil its obligations under the EC
 Treaty — the Court ( Fifth Chamber), composed of: J. C.               2 . orders the Italian Republic to pay the costs.
 Moitinho de Almeida, President of the Chamber, L. Sevon
 ( Rapporteur ), D. A. O. Edward, P. Jann and M. Wathelet,             (■) OJ No C 286 , 28 . 10 . 1995 .
Judges; G. Tesauro, Advocate-General ; R. Grass, Registrar,
 has given a judgment on 12 December 1996 , in which it:


title: Action brought on 22 July 1996 by Dominique-François Bareth against the Committee of the Regions (Case T-110/96)

text:
No C 294/ 12          EN                  Official Journal of the European Communities                                       5 . 10 . 96
Action brought on 17 July 1996 by Gilberte Gebhard                   auxiliary staff within the meaning of the conditions of
               against the European Parliament                       employment of other servants, a status that the applicant
                                                                     cannot have in view of the terms on which she was
                       ( Case T- 109/96 )
                                                                     employed . In contrast to the conditions laid down in
                         ( 96/C 294/23 )                             Article 52 of the conditions of employment of other
                                                                     servants, she had been engaged frequently every year since
                (Language of the Case: French)                       1976 . In addition, the duties that she assumed do not fall
                                                                     within the circumstances referred to in Article 52 ( a ).
An action against the European Parliament was brought
before the Court of First Instance of the European                   Secondly, Article 78 of the conditions of employment of
Communities on 17 July 1996 by Gilberte Gebhard,                     other servants cannot in any way provide a basis for
resident in Heidelberg ( Germany ), represented by Thierry           Parliament's unilateral adoption of rules specific to
Schmitt and Pierre Soler-Couteaux, of the Strasbourg                 conference interpreters having the status»of auxiliary staff
Bar .
                                                                     for the purposes of the conditions of employment of other
                                                                     servants . It is not its task to determine unilaterally the status
The applicant claims that the Court should :                         of auxiliary staff, since that power belongs exclusively to the
                                                                     Council of Ministers under Article 212 of the Treaty as
— annul the decision of 10 June 1996 taken by the
                                                                     amended by Article 24 of the Merger Treaty.
     Secretary-General of the European Parliament rejecting
     her complaint,
                                                                     Finally, the applicant's liability to Community tax results
                                                                     solely from her accepting, by way of agreement, the
— declare income earned by her to be exempt from                     conditions laid down by Parliament. An agreement
     Community tax and order repayment of tax paid,                  constitutes a totally inadequate legal basis, in the area of
     together with interest at the rate laid down by law,            taxation, for justifying the imposition of Community tax
                                                                     and exemption from national income tax, since
— order the European Parliament to pay the costs .                   determination of the tax status of residents is pre-eminently
                                                                     an aspect of State sovereignty . A Community institution 's
                                                                     power to organize its own affairs cannot prejudice
Pleas in law and main arguments
                                                                     Article 13 of the Protocol on the privileges and immunities
                                                                     of the European Communities and the regulations giving
The applicant contests the decision of the Secretary-General         effect to it .
of the European Parliament rejecting her complaint against
the levying of Community tax on remuneration paid in
respect of her duties as a conference interpreter at the
Parliament .
The applicant was engaged from 6 to 9 November 1 995 and
from 11 to 14 December 1995 as a conference interpreter
for meetings organized by the European institutions in
Luxembourg ( in this case the European Parliament ).                 Action brought on 22 July 1996 by Dominique-Francois
According to the letters appointing her and confirming her                  Bareth against the Committee of the Regions
engagement, she was to perform her duties as an interpreter                                    ( Case T-110/96 )
pursuant to the rules on remuneration , allowances and                                           ( 96/C 294/24 )
expenses payable to conference interpreters applicable to
the institution for which she performed the services .
Parliament took the contested decision when replying to the                           (Language of the case: French)
invoices corresponding to the above dates, in which the
applicant had expressly requested payment of the
remuneration due to her without deduction of Community               An action against the Committee of the Regions was
tax . The legal basis for that decision was that the applicant       brought before the Court of First Instance of the European
was subject to the ' Rules of the European Parliament                Communities on 22 July 1996 by Dominique-Francois
applicable to auxiliary session interpreters adopted under           Bareth, residing in Brussels , represented by Jean-Noel Louis,
Article 78 of the conditions of employment of other servants         Thierry Demaseure and Ariane Tornel of the Brussels Bar,
jof the European Communities'. Since Article 78 falls within         with an address for service in Luxembourg at the office of
Title III of the conditions of employment of other servants,         Fiduciaire Myson SARL, 1 , rue Glesener .
which deals with auxiliary staff, it follows, according to the
Parliament, that staff recruited on the basis of that
provision, must, like all auxiliary staff, be liable to              The applicant claims that the Court should :
 Community tax .
                                                                     — annul the decisions not to appoint the applicant to one of
In the applicant's view, those reasons for refusal are                   the posts filled at the end of internal competition
manifestly unlawful . First, Article 78 applies only to                  A/02/95 ,
 ---pagebreak--- 5 . 10 . 96            EN                 Official Journal of the European Communities                                No C 294/ 13
— annul , in so far as is necessary, the appointment                 include 'documentary evidence relating to the candidate's
     decisions adopted at the end of internal competition            studies and vocational training and also his professional
     A/02/95 ,                                                       experience', the selection board requested some candidates
                                                                     working in the Secretariat General of the CR to supply
— order the defendant to pay the costs .                             additional supporting documents in order to regularize their
                                                                     incomplete files . Furthermore , it is not disputed that all the
                                                                     successful candidates appointed to the posts to be filled
Pleas in law and main arguments                                      came from within the CR . By contrast, none of the
                                                                     successful candidates from the organizational structure
The applicant, a Grade A 6 official of the Economic and              common to the ESC and the CR was appointed .
Social Committee ('ESC') and a successful candidate in
internal competition A/02/95 organized by the Committee
of the Regions (' CR') in order to fill eight principal
administrator posts, challenges the defendant's refusal to
appoint him to one of those posts .
First of all , he alleges breach of the competition notice in        Action brought on 26 July 1996 by Jean-Claude Seche
that Article IV ( c ) of the notice , concerning the oral tests,       against the Commission of the European Communities
refers to an examination covering, on the one hand, the
candidate's general knowledge and, on the other, his specific                                Case T-115 /96 )
knowledge relevant to the vacant posts for which he has                                       96/C 294/25
indicated a preference . The applicant notes in this respect
that at the time when the competition was started , the posts
for which the candidates could express a preference were all                        (Language of the case: French)
occupied by members of the temporary staff of the CR who
were all candidates in the competition . However, the
competition notice does not provide for the priorities               An action against the Commission of the European
indicated by candidates for vacant posts to be used for other        Communities was brought before the Court of First
purposes , and in particular as a criterion for selection by the     Instance of the European Communities on 26 July 1996 by
administration . Consequently, a factor intended for use as          Jean-Claude Seche, residing in Brussels, represented by Eric
an aid in the oral test organized by the selection board could       Boigelot, of the Brussels Bar, with an address for service in
not be used by the appointing authority to derogate from the         Luxembourg at the Chambers of Louis Schiltz, 2 rue du Fort
order of the candidates ' merits .                                   Rheinsheim .
Second, the applicant alleges infringement of Article 25 of          The applicant claims that the Court should:
the Staff Regulations in so far as the appointments decided
on as a result of the internal competition were motivated,           — annul the Commission 's decision of 1 December 1995
not by the desire to recruit the officials of the highest                rejecting his request of 30 August 1995 ,
standard of ability, efficiency and integrity, but simply by
the decision in principle to regularize the situation of
members of the temporary staff.                                      — order the Commission to reconstitute his career with
                                                                         effect from 1 June 1991 ,
According to the applicant, it is also apparent that the CR
infringed Article 25 of the Staff Regulations by failing to
                                                                     — in the alternative, order the Commission to pay him a
                                                                         differential allowance,
provide sufficient reasons for its decision to derogate from
the list of suitable candidates drawn up in accordance with
Article V of the notice of internal competition in question .        — order the Commission to pay him ECU 1 in symbolic
The obligation to provide reasons was all the more                       compensation for non-material damage,
 imperative in the circumstances since the Bureau of the CR
 departed from the Secretary-General 's proposed                     — order the Commission to pay the costs .
 appointments .
 Finally, the applicant considers that the decision to treat as a     Pleas in law and main arguments
 selection criterion the question whether a candidate
 belonged to the CR and the priorities indicated for certain          The applicant, an official in the Commission's Legal Service ,
 posts resulted in failure to ensure equal treatment for the          who has 14 years' seniority in Grade A 3 and has been
 successful candidates, which amounted to misuse of powers .          performing the duties of principal legal adviser since 1991 ,
 He notes in that regard that, after settling the criteria for        challenges the Commission 's refusal of his request to the
 admission to the competition and after the deadline had              appointing authority to upgrade his duties to A 2 , grant him,
 passed for submitting applications which were , in                   in the alternative, a temporary posting pending his
 accordance with Article V of the competition notice, to              promotion , reconstitute his career and pay him the


title: JUDGMENT OF THE COURT (Sixth Chamber) of 25 June 1997 in Case C-114/96 (reference for a preliminary ruling from the Tribunal de Police, Luxembourg): Criminal proceedings against René Kieffer and Romain Thill (Free movement of goods - Quantitative restrictions - Measures having equivalent effect - Regulation (EEC) No 3330/91 - Statistics on the trading of goods - Detailed declaration of all intra-Community trading - Compatibility with Articles 30 and 34 of the EC Treaty)

text:
No C 252/8              EN                  Official Journal of the European Communities                                      16 . 8 . 97
or recovery operations falling within the scope of the                      obligations under Article 13 B (c) of the Sixth Council
abovementioned Community rules. The fact that a                             Directive (77/388/EEC) of 17 May 1977 on the
substance is classified as a re-usable residue without its                  harmonization of the laws of the Member States
characteristics or purpose being defined is irrelevant in                   relating to turnover taxes — Common system of value
that regard. The same applies to the grinding of a waste                    added tax: uniform basis of assessment;
substance.
                                                                       2 . orders the parties to bear their own costs.
(') OJ No C 380 , 31 . 12 . 1994,
     OJ No C 392, 31 . 12 . 1994.
     OJ No C 229, 2 . 9 . 1995 .                                       H OJ No C 119, 13 . 5 . 1995 .
                JUDGMENT OF THE COURT                                                 JUDGMENT OF THE COURT
                          ( Sixth Chamber)                                                        ( Sixth Chamber)
                          of 25 June 1997                                                         of 25 June 1997
        in Case C-45/95 : Commission of the European                   in Case C- 114/96 (reference for a preliminary ruling from
               Communities v. Italian Republic ( 1 )                   the Tribunal de Police, Luxembourg): Criminal
                                                                           proceedings against Rene Kieffer and Romain Thill (')
(VAT — Exemption within the country — Supplies of
goods which were used wholly for an exempted activity or               (Free movement of goods — Quantitative restrictions —
       which were excluded from the right of deduction)                Measures having equivalent effect — Regulation (EEC)
                                                                       No 3330/91 — Statistics on the trading of goods —
                            ( 97/C 252/14 )
                                                                       Detailed declaration of all intra-Community trading —
                                                                          Compatibility with Articles 30 and 34 of the EC Treaty)
                 (Language of the case: Italian)                                                    ( 97/C 252/15 )
                                                                                (Language of the case: French)
   (Provisional translation; the definitive translation will be
           published in the European Court Reports)
                                                                          (Provisional translation; the definitive translation will be
In Case C-45/95 : Commission of the European                                      published in the European Court Reports)
Communities (Agent: Enrico Traversa ) v. Italian Republic
( Agent: Umberto Leanza, assisted by Maurizio Fiorilli,
                                                                       In Case C-l 14/96 : reference to the Court under Article 177
Avvocato dello Stato ) — Application for a declaration
that, by enacting and maintaining in force legislation                 of the EC Treaty by the Tribunal de Police, Luxembourg
which does not exempt from value added tax supplies of                 for a preliminary ruling in the criminal proceedings before
goods used wholly for an exempted activity or in any                   that court against Rene Kieffer and Romain Thill — on
event excluded from the right of deduction, the Italian                the interpretation and validity of Council Regulation
Republic has failed to fulfil its obligations under                    ( EEC ) No 3330/91 of 7 November 1991 on the statistics
Article 13 B (c ) of the Sixth Council Directive ( 77/388/             relating to the trading of goods between Member States
EEC ) of 17 May 1977 on the harmonization of the laws                  ( OJ No L 316, 16 . 11 . 1991 , p. 1 ) — the Court ( Sixth
of the Member States relating to turnover taxes —                      Chamber ), composed of: G. F. Mancini ( Rapporteur ),
Common system of value added tax: uniform basis of                     President of the Chamber, J. L. Murray and P. J. G.
assessment ( OJ No L 145 , 13 . 6 . 1977, p. 1 ) — the Court           Kapteyn, Judges; M. B. Elmer, Advocate-General; H. von
 ( Sixth Chamber), composed of: G. F. Mancini, President               Holstein, Deputy Registrar, has given a judgment on
 of the Chamber, P. J. G. Kapteyn, G. Hirsch ( Rapporteur),            25 June 1997, in which it has ruled:
H. Ragnemalm and R. Schintgen, Judges; D. Ruiz-Jarabo
 Colomer, Advocate-General; L. Hewlett, Administrator,
 for the Registrar, has given a judgment on 25 June 1997,              Examination of Council Regulation (EEC) No 3330/91 of
 in which it :                                                          7 November 1991 on the statistics relating to the trading
                                                                       of goods between Member States has not disclosed any
                                                                       factor of such a kind as to cast doubt on its validity.
 1 . declares that, by enacting and maintaining in force
      legislation which does not exempt from value added                (') OJ No C 158 , 1 . 6 . 1996 .
      tax supplies of goods used wholly for an exempted
      activity or otherwise excluded from the right of
      deduction, the Italian Republic has failed to fulfil its


24.1.2004             EN                    Official Journal of the European Union                                            C 21/1
                                                                 I
                                                          (Information)
                                             COURT OF JUSTICE
                                                      COURT OF JUSTICE
       Taking of the oath by a new Judge at the Court               Lists to be used for determining the composition of
                                                                                formations of the Court
                         (2004/C 21/01)
                                                                                (2004/C 21/03)
Having been appointed as Judge of the Court of Justice of the       At its meeting of 13 January 2004 the Court drew up the list
European Communities by decision of the Representatives of          referred to in Article 11b(2) of the Rules of Procedure for the
the Governments of the Member States of 23 October 2003 (1),        purposes of determining the composition of the Grand
Sir Konrad Schiemann took the oath before the Court on              Chamber as follows:
7 January 2004.
                                                                    —     Mr Gulmann
(1) OJ L 285, 1.11.2003, p. 42.                                     —     Sir Konrad Schiemann
                                                                    —     Mr La Pergola
                                                                    —     Mr Lenaerts
                                                                    —     Mr Puissochet
          Assignment of a new Judge to Chambers                     —     Ms Silva de Lapuerta
                                                                    —     Mr Schintgen
                         (2004/C 21/02)
                                                                    —     Mr Rosas
                                                                    —     Ms Macken
At its meeting of 13 January 2004 the Court of Justice of the
European Communities decided to assign Sir Konrad to the            —     Mr Cunha Rodrigues
First and Third Chambers.
                                                                    —     Ms Colneric
The First and Third Chambers are in consequence composed            —     Mr von Bahr
as follows:
                                                                    At its meeting of 13 January 2004 the Court drew up the lists
First Chamber                                                       referred to in the first paragraph of Article 11c(2) of the Rules
                                                                    of Procedure for the purposes of determining the composition
Mr Jann, President of the Chamber,                                  of the First and Third Chambers as follows:
                                                                    First Chamber
and Mr Rosas, Mr La Pergola, Mr von Bahr, Ms Silva de
Lapuerta, Mr Lenaerts and Sir Konrad Schiemann, Judges.             —     Mr La Pergola
Third Chamber                                                       —     Sir Konrad Schiemann
Mr Rosas, President of the Chamber,                                 —     Mr von Bahr
and Mr Schintgen, Ms Colneric and Sir Konrad Schiemann,             —     Mr Lenaerts
Judges.                                                             —     Mr Rosas
                                                                    —     Ms Silva de Lapuerta
 ---pagebreak--- C 21/2                    EN                           Official Journal of the European Union                                               24.1.2004
Third Chamber                                                                        membership of the European Communities (Community law for
                                                                                1990), which is construed and applied by the administrative
—      Mr Schintgen                                                                  authorities and a substantial proportion of the courts, including
                                                                                the Corte suprema di cassazione (Italy), in such a way that the
—      Ms Colneric                                                                   exercise of the right to repayment of charges levied in breach of
                                                                                Community rules is made excessively difficult for the taxpayer,
—      Sir Konrad Schiemann                                                          the Italian Republic has failed to fulfil its obligations under the
                                                                                EC Treaty;
                                                                               2.    Orders the Italian Republic to pay the costs.
                                                                               (1) OJ C 163 of 10.6.2000.
                  JUDGMENT OF THE COURT
                         of 9 December 2003
in Case C-129/00: Commission of the European Communi-
                       ties v Italian Republic (1)                                               JUDGMENT OF THE COURT
(Failure of a Member State to fulfil obligations — Construc-                                             (Sixth Chamber)
tion contrary to Community law of national legislation by
case-law and administrative practice — Conditions for the                                             of 27 November 2003
              recovery of sums paid though not due)
                                                                               in Case C-185/00: Commission of the European Communi-
                             (2004/C 21/04)                                                       ties v Republic of Finland (1)
                      (Language of the case: Italian)                          (Failure of a Member State to fulfil its obligations —
                                                                               Directives 92/81/EEC and 92/82/EEC — Rates of excise
(Provisional translation; the definitive translation will be published         duties on mineral oils — Fiscal control — Use of gas oil as
                     in the European Court Reports)                                                          motor fuel)
                                                                                (2004/C 21/05)
In Case C-129/00, Commission of the European Communities
                                                                                (Language of the case: Finnish)
(Agent: E. Traversa, assisted by P. Biavati) v Italian Republic
(Agent: I. M. Braguglia): Application for a declaration that, by
maintaining in force Article 29(2) of Law No 428 of 29 Decem-                  (Provisional translation; the definitive translation will be published
ber 1990 entitled ‘Disposizioni per l’adempimento di obblighi                                      in the European Court Reports)
derivanti dall’appartenenza dell’Italia alle Comunità europee
(legge comunitaria per il 1990)’ (Provisions for the fulfilment of
obligations deriving from Italy’s membership of the European                   In Case C-185/00, Commission of the European Communities
Communities (Community law for 1990) (GURI, Ordinary                           (Agents: E. Traversa and I. Koskinen) with an address for
Supplement No 10 of 12 January 1991, p. 5) which, as                           service in Luxembourg, supported by Kingdom of Sweden
construed and applied by the administrative authorities and                    (Agents: I. Simfors and A. Kruse) v Republic of Finland (Agents:
the courts, allows rules of evidence in relation to the passing                T. Pynnä and E. Bygglin) with an address for service in
on to third parties of the amount of charges levied in breach                  Luxembourg: Application for a declaration that, by main-
of Community rules which make exercise of the right to                         taining in force the laws and regulations on the use of gas oil
repayment of such charges virtually impossible or, at least,                   as a motor fuel, as they are applied in practice, the Republic of
excessively difficult for the taxpayer, the Italian Republic has               Finland has failed to fulfil its obligations under Article 8(2) and
failed to fulfil its obligations under the EC Treaty, the Court,               (3) of Council Directive 92/81/EEC of 19 October 1992 on
composed of: V. Skouris, President, P. Jann, C. W. A. Timmer-                  the harmonisation of the structures of excise duties on mineral
mans, C. Gulmann, J. N. Cunha Rodrigues and A. Rosas,                          oils (OJ 1992 L 316, p. 12) and Article 5(1) of Council Directive
(Presidents of Chambers), D. A. O. Edward, A. La Pergola,                      92/82/EEC of 19 October 1992 on the approximation of
J.-P. Puissochet (Rapporteur), R. Schintgen, F. Macken, N. Col-                the rates of excise duties on mineral oils (OJ 1992 L 316,
neric and S. von Bahr, Judges; L.A. Geelhoed, Advocate General;                p. 19), the Court (Sixth Chamber), composed of: V. Skouris
L. Hewlett, Principal Administrator, for the Registrarm, has                   (Rapporteur), President, C. Gulmann, J.-P. Puissochet,
given a judgment on 9 December 2003, in which it:                              F. Macken and N. Colneric, Judges; L.A. Geelhoed, Advocate
                                                                               General; H. von Holstein, Deputy Registrar, has given a
1.     Declares that, by failing to amend Article 29(2) of Law                 judgment on 27 November 2003, in which it:
       No 428 of 29 December 1990 entitled ‘Disposizioni per
       l’adempimento di obblighi derivanti dall’appartenenza dell’Italia       1.    Declares that by maintaining in force the laws and regulations
       alle Comunità europee (legge comunitaria per il 1990)’                        on the use of gas oil as a fuel, as they are applied in practice,
       (Provisions for the fulfilment of obligations deriving from Italy’s           the Republic of Finland has failed to fulfil its obligations under


title: Action brought on 3 April 1998 by the Commission of the European Communities against the French Republic (Case C-96/98)

text:
30.5.98               EN                 Official Journal of the European Communities                                      C 166/9
of the European Communities in Case T-113/96 between                Action brought on 3 April 1998 by the Commission of the
Edouard Dubois et Fils SA, on the one hand, and Council                 European Communities against the French Republic
of the European Union and Commission of the European
                                                                                (Case C-96/98)
Communities, on the other, was brought before the Court
of Justice of the European Communities on 3 April 1998                                       (98/C 166/14)
by Edouard Dubois et Fils SA, represented by Pierre
Ricard, avocat before the French Conseil d'EÂtat and Cour
de Cassation, and Alain Crosson de Cormier, of the Paris
Bar, with an address for service in Luxembourg at the               An action against the French Republic was brought before
Chambers of Marc Feiler, 67 Rue Ermesinde.                          the Court of Justice of the European Communities on
                                                                    3 April 1998 by the Commission of the European
                                                                    Communities, represented by Paolo Stancanelli, of its
The appellant claims that the Court should:                         Legal Service, and Olivier Couvert-Castera, national civil
                                                                    servant on secondment to that service, acting as Agents,
                                                                    with an address for service in Luxembourg at the office of
Ð set aside the judgment of the Court of First Instance,            Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
    with all the legal consequences entailed thereby;
Ð declare the defendants liable under the second                    The Commission of the European Communities claims
    paragraph of Article 215 of the Treaty for the damage           that the Court should:
    caused to it by the repercussions on its activities as an
    authorised customs agent;
                                                                    Ð declare that, by failing to adopt the special measures
                                                                        necessary for the conservation of bird habitats in the
Ð order the defendants jointly and severally to pay the                 Marais Poitevin and the appropriate steps to avoid
    sum of FF 112 339 702 by way of compensation for                    deterioration of those habitats, the French Republic
    that damage;                                                        has failed to fulfil its obligations under Article 4 of
                                                                        Directive 79/409/EEC (1);
Ð order the defendants to pay the costs.
                                                                    Ð order the French Republic to pay the costs.
Pleas in law and main arguments:
                                                                    Pleas in law and main arguments:
On the question of no-fault liability, the Court of First
Instance erred in holding that the cause of the damage was
the Single European Act and the establishment of an area
without internal frontiers to which it led. New obligations         Article 4(1) and (2) of Council Directive 79/409/EEC of
to act were imposed at the time on the Community                    2 April 1979 on the conservation of wild birds lays down
institutions, particularly in respect of the introduction of        the obligation to classify the most suitable territories as
compensatory support measures to facilitate the                     Special Protection Areas (SPAs) for the conservation of the
adaptation of the profession of customs agent.                      habitats of the species to which the Directive applies;
                                                                    Article 4(4) lays down the obligation to take appropriate
                                                                    steps to avoid deterioration of the habitats in the
On the question of liability for fault, the Court of First          protection areas. According to the case-law of the
Instance erred in holding that there was no legal                   Court (2), the latter obligation applies not only to
obligation to act incumbent on the institutions and that,           territories actually classified as SPAs, but also to territories
therefore, the failure to take appropriate measures could           which should have been so classified.
not give rise to liability and on the part of the
Community. The institutions chose to act by adopting
Council Regulation (EEC) No 3904/92 of 17 December                  The territory of the Marais Poitevin classified as an SPA is
1992 to adapt the profession of customs agent to the                insufficient. An area of 29 790 hectares is currently
internal market (1). That action on the part of the                 classified as such. That classification took place late, in
institutions was, however, very piecemeal and inadequate.           stages and after 1991. According to the most relevant
The Court of First Instance also erred in holding that              scientific data available, however, namely the inventory of
there was, in any event, no breach of a higher rule of the          Zones Importantes pour la Conservation des Oiseaux
law for the protection of individuals. There was a breach           (important areas for the conservation of birds) (ZIOC),
of the principle of vested rights as the profession of              published in 1994 by the French Ministry of the
customs agent had been recognised by Community                      Environment, 77 980 hectares exhibit the objective
legislation.                                                        characteristics justifying classification as an SPA. The
                                                                    inadequate nature of the appropriate steps intended to
(1) OJ L 394 of 31.12.1992, p. 1.                                   avoid deterioration of the habitats is due to the absence of
                                                                    suitable protective measures and to interference with and
                                                                    disturbances of natural habitats, in particular, the
                                                                    disappearance of natural water meadows as they are
 ---pagebreak--- C 166/10              EN                 Official Journal of the European Communities                                      30.5.98
cultivated and disturbances caused by motorway and road             Reference for a preliminary ruling by the Divisional
schemes.                                                            Court, Queen's Bench Division, by order of that court of
                                                                    31 July 1997, in the case of the Commissioners of
(1) OJ L 103 of 25.4.1979, p. 1.                                           Customs and Excise against Midland Bank plc
(2) Case C-355/90 Commission v Spain [1993] ECR 4221.                                        (Case C-98/98)
                                                                                (98/C 166/16)
                                                                    Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Divisional
Reference for a preliminary ruling from Pargas Tingsrätt            Court, Queen's Bench Division, of 31 July 1997, which
of 25 March 1998 in the case of Peter Jägerskiöld v Torolf          was received at the Court Registry on 3 April 1998, for a
                          Gustafsson                                preliminary ruling in the case of the Commissioners of
                       (Case C-97/98)                               Customs and Excise against Midland Bank plc, on the
                                                                    following questions:
                        (98/C 166/15)
                                                                    On the proper interpretation of Council Directive 67/227/
Reference has been made to the Court of Justice of the              EEC (1) of 11 April 1967, in particular Article 2, and
European Communities by an order of the Pargas                      Council Directive 77/388/EEC (2) of 17 May 1977, in
Tingsrätt (District Court) of 25 March 1998, which was              particular Article 17(2), (3) and (5), and having regard to
received at the Court Registry on 6 April 1998, for a               the facts of the present case:
preliminary ruling in the case of Peter Jägerskiöld v Torolf
Gustafsson on the following questions:
                                                                    (1) Is it necessary to establish a direct and immediate link
Ð Are fishing rights or spinning licenses goods' in                    between a particular input obtainable by a taxable
     accordance with the judgment in Case 7/68                          person acting as such and a particular transaction or
     Commission v Italian Republic [1968] ECR 423?                      transactions made by that person in order to:
                                                                        (a) establish the existence of an entitlement to deduct
Ð Does the amendment in Finland of the Law on Fishing
                                                                             tax charged in respect of the input; and
     1045/1996 constitute an obstacle to the free
     movement of goods according to the criteria laid
     down in Case 8/74 Dassonville [1974] ECR 837?                      (b) determine the extent of that entitlement?
Ð Does a leisure angler's recreational interest constitute a
                                                                    (2) If the answer to (1)(a) or (b) is in the affirmative, what
     permissible ground under Article 36 of the European
                                                                        is the nature of the direct and immediate link and, in
     Community's basic treaty?
                                                                        particular, in the case of a taxable person making both
                                                                        transactions in respect of which VAT is deductible and
Ð Does the present case involve agricultural products                   transactions in respect of which it is not:
     within the meaning of Article 37(4) of the Treaty of
     Rome?                                                              (a) is the test for determining the amount of input tax
                                                                             that is deductible any different as between
Ð Does the aforementioned legal rule have direct legal                       Article 17(2), (3) and (5) (and, if so, in which
     effect in accordance with the judgment in Case 6/64                     respects is it different); and
     Costa v ENEL (1)?
                                                                        (b) is such a person entitled to deduct all the input tax
                                                                             charged in respect of an input on the ground that
Ð Has sufficient       account   been   taken    of  farmers'
                                                                             the input was utilised as a consequence of making
     interests?
                                                                             a transaction falling within Articles 17(2) or 17(3),
                                                                             in particular Article 17(3)(c)?
Ð Does such an amendment of the Law on Fishing 1045/
     1996 concerning spinning contravene or not
     contravene the rules governing the free movement of            (3) If the answer to 1(a) or (b) is in the negative:
     goods (or the free provision of services) laid down in
     the European Community's basic treaty?                             (a) what is the link that has to be established; and
(1) ECR 1964, p. 614.
                                                                        (b) in the case of a taxable person making both
                                                                             transactions in respect of which VAT is deductible
                                                                             and transactions in respect of which it is not:


title: Case C-499/03 P: Appeal brought on 26 November 2003 (fax: 25 November 2003) by Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH against the judgment delivered on 17 September 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Joined Cases T-309/01 and T-239/02 between Peter Biegi Nahrungsmittel GmbH and Commonfood Handelsgesellschaft für Agrar-Produkte mbH, and the Commission of the European Communities

text:
24.1.2004               EN                       Official Journal of the European Union                                          C 21/25
1.    Is it permissible to resort to other language versions of          The appellant claims that the Court should:
      the Sixth Council Directive 77/388/EEC (1) to elucidate
      the meaning of the word ‘charitable’ in Article 13A.1 (g)          —     set aside the contested judgment of the Court of First
      and (h), or must the word have the same meaning as in                    Instance of 17 September 2003 (1) and
      domestic law?
                                                                         —     1.    in Case T-309/01,
2.    If article 13A(1)(g) and (h) are to be interpreted as                          annul the Commission Decision of 14 August 2001
      applying to an organisation that is recognised as having                       (REC 4/00) in so far as it requires subsequent
      a social character, are they to be interpreted as applying                     accounting for import duties in the amount of
      to a profitmaking entity such as the Kingscrest Residential                    DEM 218 605,65, and order the Commission to pay
      Care Homes partnership?                                                        the costs of the proceedings;
3.    Are article 13A.1 (g) and (h) of the Directive to be                     2.    in Case T-239/02,
      interpreted as meaning that they confer on Member States
      a discretion to recognise for the purposes of those                            annul the Commission Decision of 5 March 2002
      provisions an organisation which is registered under the                       (REC 4/01) in so far as it requires subsequent
      Care Standards Act 2000 (or the Registered Homes Act                           accounting for import duties in the amount of
      1984 or the Children Act 1989) but which is not a body                         DEM 222 116,06, and order the Commission to pay
      governed by public law and does not have the status of a                       the costs of the proceedings.
      charity under the domestic law of the Member State
      concerned?
                                                                         Pleas in law and main arguments
(1) Of 17 May 1977 on the harmonization of the laws of the Member        The appellants contest the judgment of the Court of First
    States relating to turnover taxes — Common system of value           Instance on the following grounds:
    added tax: uniform basis of assessment (OJ L 145 of 13.6.77,
    p. 1).
                                                                         —     Breach of Article 220(2)(b) of Council Regulation (EEC)
                                                                               No 2913/92 (2). The Court of First Instance incorrectly
                                                                               based its ruling on a finding that the error made by the
                                                                               competent customs authority was detectable by the
                                                                               appellants. In the contested judgment, the Court of First
                                                                               Instance exaggerated the duty of care to be expected of
                                                                               the economic operators concerned. In addition, it failed
                                                                               to appreciate the complexity of the applicable rules.
Appeal brought on 26 November 2003 (fax: 25 November
2003) by Peter Biegi Nahrungsmittel GmbH and Com-                        —     Flawed procedure in so far as the Court of First Instance
monfood Handelsgesellschaft für Agrar-Produkte mbH                             incorrectly declined to hear the witnesses named by the
against the judgment delivered on 17 September 2003 by                         appellants. Instead, it based its judgment on assumptions
the Fourth Chamber of the Court of First Instance of the                       detrimental to the appellants.
European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and
                                                                         (1) Not yet published in the ECR.
Commonfood Handelsgesellschaft für Agrar-Produkte
                                                                         (2) OJ L 302, p. 1.
mbH, and the Commission of the European Communities
                         (Case C-499/03 P)
                           (2004/C 21/46)
                                                                         Action brought on 26 November 2003 by the Com-
                                                                         mission of the European Communities against the Portu-
                                                                                guese Republic
An appeal against the judgment delivered on 17 September
2003 by the Fourth Chamber of the Court of First Instance of                                       (Case C-500/03)
the European Communities in Joined Cases T-309/01 and
T-239/02 between Peter Biegi Nahrungsmittel GmbH and                                                (2004/C 21/47)
Commonfood Handelsgesellschaft für Agrar-Produkte mbH,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 26 November 2003 (fax: 25 November 2003) by Peter                An action against the Portuguese Republic was brought
Biegi Nahrungsmittel GmbH and Commonfood Handelsge-                      before the Court of Justice of the European Communities on
sellschaft für Agrar-Produkte mbH, represented by Dr Klaus               26 November 2003 by the Commission of the European
Landry and Dr Lothar Harings of Sozietät Graf von Westphalen             Communities, represented by António Caeiros, acting as
Bappert & Modest, Große Bleichen 21, D-20354, Hamburg.                   Agent, with an address for service in Luxembourg.


title: Case F-11/13: Judgment of the Civil Service Tribunal (3rd Chamber) of 14 May 2014  — Delcroix v EEAS (Civil Service — Official — EEAS — Head of delegation in a third country — Transfer to the seat of the EEAS — Early termination of functions as head of delegation)

text:
               24.6.2014

               EN

               Official Journal of the European Union

               C 194/39

         Judgment of the Civil Service Tribunal (3rd Chamber) of 14 May 2014 — Delcroix v EEAS
   (Case F-11/13) (1)

   ((Civil Service - Official - EEAS - Head of delegation in a third country - Transfer to the seat of the EEAS - Early termination of functions as head of delegation))
   2014/C 194/57
   Language of the case: French

      Parties

      Applicant: Nicola Delcroix (Brussels, Belgium) (represented by: initially D. Abreu Caldas, A. Coolen, É. Marchal and S. Orlandi, lawyers, then D. Abreu Caldas, J.-N. Louis and S. Orlandi, lawyers)

      Defendant: European External Action Service (represented by: initially, R. Metsola and S. Marquardt, Agents, then S. Marquardt, Agent)

      Re:

   Application to annul the decision to transfer the applicant to a post at the seat of the EEAS and to terminate his posting at the EU delegation in Djibouti.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision, communicated by letter of 8 March 2012, to transfer Mr Delcroix to the seat of the European External Action Service and to thereby terminate early his posting as head of the European Union delegation in the Republic of Djibouti;

               2.

               Orders the European External Action Service to bear its own costs and to pay the costs incurred by Mr Delcroix.

      (1)  OJ C 123, 27/04/2013, p. 29.


title: Case C-186/03 P: Appeal brought on 6 May 2003 by Strabag Benelux NV against the judgment delivered on 25 February 2003 by the Court of First Instance (Fifth Chamber) in Case T-183/00 Strabag Benelux NV v Council of the European Union

text:
C 213/6                 EN                         Official Journal of the European Union                                         6.9.2003
2)     If so: if the State waives its claim to the portion of the          Appeal brought on 6 May 2003 by Strabag Benelux NV
       fees due to it in respect of that legal transaction, thereby        against the judgment delivered on 25 February 2003 by
       ceasing to enforce the legal provision requiring a portion          the Court of First Instance (Fifth Chamber) in Case T-183/
       of the fees to be remitted to the State, do the fees cease to        00 Strabag Benelux NV v Council of the European Union
       constitute a tax for the purposes of Directive 69/335?
                                                                                (Case C-186/03 P)
                                                                                (2003/C 213/11)
                                                                           An appeal has been brought before the Court of Justice of the
                                                                           European Communities on 6 May 2003 by Strabag Benelux
                                                                           NV, represented by A. Delvaux and V. Bertrand, with an
Reference for a preliminary ruling by the Tribunale                        address for service in Luxembourg, against the judgment
Amministrativo per la Sardegna by order of that Court of                   delivered on 25 February 2003 by the Court of First Instance
15 January 2003 and 12 February 2003 in the case of                        (Fifth Chamber) in Case T-183/00 Strabag Benelux NV v
Impresa Portuale di Cagliari s.r.l. against Tirrenia di                    Council of the European Union.
Navigazione SpA and C.T.O. Combined Terminals Oper-
                              ators s.r.l.                                 The appellant claims that the Court should:
                                                                           —     set aside the judgment of the Court of First Instance
                          (Case C-174/03)                                        inasmuch as it dismissed the applications for annulment
                                                                                and compensation on the ground that they were
                                                                                unfounded;
                          (2003/C 213/10)
                                                                           —     uphold the forms of order sought by STRABAG in respect
                                                                                of those applications and accordingly:
                                                                                —     annul the decision of 12 April 2000 by which the
Reference has been made to the Court of Justice of the                                 Council awarded to the DE WAELE company the
European Communities by order of the Tribunale Amministra-                             refitting and general maintenance work contract
tivo per la Sardegna (The Administrative Court for Sardinia) of                        which was the subject of invitation to tender
15 January 2003 and 12 February 2003, received at the Court                            No 107865 published in the Official Journal of the
Registry on 14 April 2003, for a preliminary ruling in the                             European Communities S 146 of 30 July 1999, and
case of Impresa Portuale di Cagliari s.r.l. against Tirrenia di                        by which the Council implicitly rejected the tender
Navigazione SpA and C.T.O. Combined Terminals Operators                                submitted by STRABAG;
s.r.l. on the following questions:
                                                                                —     order the Council of the European Union to pay to
                                                                                STRABAG, subject to any increase, the sum of
(a)    whether, in accordance with the recitals in the preamble                        BEF 153 421 286 or EUR 3 803 214 together with
       to Directive 93/38 (1), a company in the maritime trans-                        interest thereon at the rate of 6 % as from 12 April
       port sector, which in some cases operates under a de                            2000;
       facto monopoly and in others in circumstances of free
       competition and which benefits from State aid is to be              —     order the Council of the European Union to pay the costs.
       regarded as always subject to the Directive 93/98,
       and, in the event that such a company is subject to the
       rules on public notice,                                             Pleas in law and main arguments
(b)    whether the ‘technical specifications’ mentioned in                 In support of its application for annulment, the appellant puts
       Article 18 of Directive 93/38 (transposed by Article 19             forward four pleas in law.
       of Legislative Decree No 158/95) must be established
       prior to the procedure for selecting a contractor and               The first plea is divided into two limbs. The appellant first
       whether they are subject to any publicity requirements.             criticises the Court of First Instance for failing properly to
                                                                           construe the concepts of ‘contract’ and ‘decision’ in so far as it
                                                                           took the view that the contract which the Council concluded
( 1) Council Directive 93/38/EEC of 14 June 1993 coordinating the          with the successful tenderer constituted the decision to award
     procurement procedures of entities operating in the water,            the contract. Second, the appellant claims that the Court of
     energy, transport and telecommunications sectors (OJ L 199 of         First Instance breached Article 8(3) of Directive 93/37/EEC
     09.08.1993, p. 84).                                                   concerning the coordination of procedures for the award of
                                                                           public works contracts in so far as the Court took the view
                                                                           that the written report required under that provision could
                                                                           consist of three documents, that is to say, the report to the
 ---pagebreak--- 6.9.2003               EN                         Official Journal of the European Union                                         C 213/7
Advisory Committee on Procurement and Contracts (ACPC),                   Reference for a preliminary ruling by the Arbeitsgericht
the favourable opinion of the ACPC, and the notice of contract            Berlin by order of that Court of 30 April 2003 in the
award published in the Official Journal.                                  proceedings between Imtraud Junk and Rechtsanwalt
                                                                          Wolfgang Kühnel as the liquidator of the assets of AWO
                                                                                Gemeinnützige Pflegegesellschaft Südwest mbH
By its second plea in law, the appellant submits that there is a                                   (Case C-118/03)
contradiction in the grounds of the judgment under appeal
inasmuch as the Court of First Instance formed the view that
the contract concluded between the Council and the successful                                      (2003/C 213/12)
tenderer was the decision to award the contract (paragraph 44)
but examined the Council’s letter of 11 March 2000 to
determine that the decision to award the contract was
                                                                          Reference has been made to the Court of Justice of the
adequately reasoned (paragraphs 56, 57 and 58). By way of
                                                                          European Communities by order of the Arbeitsgericht Berlin
alternative submission, the appellant criticises the Court of
                                                                          (Labour Court, Berlin) of 30 April 2003, received at the Court
First Instance for having failed to ensure compliance with the
                                                                          Registry on 7 May 2003, for a preliminary ruling in the
obligation to state reasons imposed by Article 253 EC in so
                                                                          proceedings between Imtraud Junk and Rechtsanwalt Wolf-
far as it took the view that the Council’s letter of 11 March
                                                                          gang Kühnel as the liquidator of the assets of AWO Gemeinnüt-
2000 was adequately reasoned, particularly having regard to
Article 8(1) of Directive 93/37.                                          zige Pflegegesellschaft Südwest mbH on the following ques-
                                                                          tions:
                                                                          1.    Is Council Directive 98/59/EC ( 1) of 20 July 1998 on the
                                                                                approximation of the laws of the Member States relating
By its third plea in law, the appellant contends that the Court                 to collective redundancies to be interpreted to the effect
of First Instance breached Articles 18 and 30(1) and (2) of                     that ‘redundancy’ within the meaning of Article 1(1)(a)
Directive 93/37 and the contract documents and infringed the                    thereof is to be construed as meaning the notice of
principles of equality and transparency inasmuch as it formed                   dismissal as the first act in terminating the contract of
the view that the qualitative criteria have as their main function              employment or does ‘redundancy’ mean the termination
to check that each tenderer has the competence and abilities                    of the contract of employment upon expiry of the period
required to carry out the works and that the award criteria, in                 of notice?
particular the qualitative and quantitative criteria, carry a
different weight even though that does not follow from the                2.    If ‘redundancy’ is to be construed as meaning the notice
contract documents.                                                             of dismissal, does the directive require that both the
                                                                                consultation procedure under Article 2 of the directive
                                                                                and the notification procedure under Articles 3 and 4
                                                                                thereof must have been concluded before the notices of
By its fourth plea in law, the appellant criticises the Court of                dismissal are announced?
First Instance on the ground that it distorted the appellant’s
argument in forming the view that, in regard to the three
criteria in respect of which STRABAG’s tender was superior to             (1 ) OJ L 225 of 12.08.1998, p. 16.
that of the successful tenderer, the appellant had placed in
question the Council’s assessment in its report to the ACPC,
whereas it in fact criticised the Council for having submitted
during the proceedings before the Court of First Instance
assessments which differed from those contained in that
report.
                                                                          Reference for a preliminary ruling by the Finanzgericht
                                                                          Hamburg by order of that Court of 29 April 2003 in the
                                                                          dispute between Dr Georg Friedrich Baur Jr., executor of
In support of its claim for compensation, the appellant argues            the estate of Dr Georg Friedrich Baur Sr. and Hauptzoll-
that, at the time when the contract was being awarded, the                                             amt Kiel
Council acted unlawfully in such a way as to incur non-
contractual liability. This unlawful conduct formed the basis
of significant damage incurred by STRABAG, which forfeited                                         (Case C-194/03)
the profit which it hoped to secure from performing the
contract and whose commercial image and reputation have                                            (2003/C 213/13)
suffered as a result. The appellant calculates its total damage
to be EUR 3 803 214, that is to say, 10 % of the turnover
which it might have hoped to achieve.
                                                                          Reference has been made to the Court of Justice of the
                                                                          European Communities by order of the Finanzgericht Ham-
                                                                          burg (Finance Court, Hamburg) of 29 April 2003, received at
                                                                          the Court Registry on 12 May 2003, for a preliminary ruling


title: Case T-346/04: Action brought on 17 August 2004 by Sadas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/56

         Action brought on 17 August 2004 by Sadas S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)
   (Case T-346/04)
   (2004/C 262/103)
   Language in which the application was submitted: French
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) was brought before the Court of First Instance of the European Communities on 17 August 2004 by Sadas S.A., established in Tourcoing (France), represented by A. Bertrand, lawyer.
   L.T.J. Diffusion was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               alter in its entirety the operative part of the decision of the First Board of Appeal in Case R 393/2003-1;

               —

               annul the decision contested in that case by which the examiner found that there is a likelihood of confusion in the minds of the public between the mark ‘ARTHUR’ and the mark in respect of which registration is sought ‘ARTHUR ET FELICIE’;

               —

               order L.T.J. Diffusion to pay the costs.

         Pleas in law and main arguments:

               Applicant for Community trade mark:

               The applicant.

               Community trade mark sought:

               Three-dimensional mark ‘ARTHUR ET FELICIE’ — Application No 0373787.

               Goods or services:

               Goods in Classes 16, 24 and 25.

               Proprietor of mark or sign cited in opposition:

               L.T.J. Diffusion.

               Mark or sign cited in opposition:

               National trade mark ‘ARTHUR’ for Class 25 (clothing).

               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:

               Misapplication of Article 8(1)(b) of Regulation (EC) No 40/94.


title: Joined Cases C-488/08 P and C-489/08 P: Order of the Court (Sixth Chamber) of 4 December 2009 — Matthias Rath v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Dr. Grandel GmbH (Appeal — Community trade mark — Regulation (EC) No 40/94 — Article 8(1)(b) — Word marks Epican and Epican Forte — Opposition by the proprietor of the Community word mark EPIGRAN — Likelihood of confusion — Partial rejection of the application for registration — Appeals manifestly inadmissible)

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/18

         Order of the Court (Sixth Chamber) of 4 December 2009 — Matthias Rath v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Dr. Grandel GmbH
   (Joined Cases C-488/08 P and C-489/08 P) (1)

   (Appeal - Community trade mark - Regulation (EC) No 40/94 - Article 8(1)(b) - Word marks Epican and Epican Forte - Opposition by the proprietor of the Community word mark EPIGRAN - Likelihood of confusion - Partial rejection of the application for registration - Appeals manifestly inadmissible)
   2010/C 63/27
   Language of the case: German

      Parties

      Applicant: Matthias Rath (represented by: S. Ziegler, C. Kleiner and F. Dehn, Rechtsanwälte)

      Defendants: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent), Dr. Grandel GmbH

      Re:

   Appeal brought against the order of the Court of First Instance (Seventh Chamber) of 8 September 2008, Rath v OHIM and Grandel (Case T-373/06) in which the Court of First Instance dismissed as manifestly lacking any foundation in law the action for annulment of the decision of the First Board of Appeal of OHIM of 5 October 2006 dismissing in part the action brought against the decision of the Opposition Division which, by upholding the opposition by the proprietor of the earlier Community word mark ‘EPIGRAN’, refused to register the word mark ‘EPICAN FORTE’ for goods and services in class 5 — Likelihood of confusion between the two marks

      Operative part of the order

               1.

               The appeals are dismissed.

               2.

               Mr Rath is ordered to pay the costs.

      (1)  OJ C 82 of 4.04.2009.