title: Case C-407/03: Action brought on 29 September 2003 by the Commission of the European Communities against the Republic of Finland

text:
C 275/36               EN                        Official Journal of the European Union                                          15.11.2003
Reference for a preliminary ruling by the Tribunal d’in-                 Do the provisions of Community law relating to restrictions
stance du VIIème arrondissement de Paris by judgment of                  on the marketing of dangerous substances and preparations,
that Court of 21 August 2003 in the case of Waterman SA                  and in particular the provisions of Directive 76/769 (1) and
against Directeur Général des Douanes et Droits Indirects                Directive 94/60 (2) of 20 December 1994, prohibit the placing
                                                                         on the market for sale to the public of drying agent products
                                                                         containing lead compounds classified as toxic for reproductive
                         (Case C-400/03)                                 purposes, or do those provisions permit the relevant dero-
                                                                         gation laid down for ‘artists’ paints’ to be applied to those
                                                                         products?
                         (2003/C 275/53)
                                                                         (1) Council Directive 76/769/EEC of 27 July 1976 on the approxi-
                                                                             mation of the laws, regulations and administrative provisions of
Reference has been made to the Court of Justice of the                       the Member States relating to restrictions on the marketing and
European Communities by judgment of the Tribunal d’instance                  use of certain dangerous substances and preparations (OJ L 262
du VIIème arrondissement de Paris of 21 August 2003,                         of 27.9.1976, p. 201).
received at the Court Registry on 26 September 2003, for a               (2) European Parliament and Council Directive 94/60/EC of
preliminary ruling in the case of Waterman SA against                        20 December 1994 amending for the 14th time Directive 76/
Directeur Général des Douanes et Droits Indirects on the                     769/EEC on the approximation of the laws, regulations and
                                                                             administrative provisions of the Member States relating to restric-
following question:
                                                                             tions on the marketing and use of certain dangerous substances
                                                                             and preparations (OJ L 365 of 31.12.1994, p. 1).
Is the Explanatory Note to the Combined Nomenclature
relating to subheadings 4202 12 11 and 4202 12 19, which
clarifies the term ‘in the form of plastic sheeting’ as follows: ‘if
a container has an outer material that is a combination of
materials where the outer layer being visible to the naked eye
is plastic sheeting (e.g., woven fabric of textile fibres in
combination with plastic sheeting) it is irrelevant for classifi-
cation purposes whether the sheeting was manufactured
separately before creating the combined material or whether              Action brought on 29 September 2003 by the Com-
the plastic layer is the result of applying a coating or covering        mission of the European Communities against the Repub-
of plastics to the material ... provided that the resultant outer                                    lic of Finland
layer being visible to the naked eye has the same visual
appearance as an applied layer of manufactured plastic sheet-
ing’, contrary to the tariff?
                                                                                (Case C-407/03)
                                                                                (2003/C 275/55)
                                                                         An action against the Republic of Finland was brought
Reference for a preliminary ruling by the Tribunal de
                                                                         before the Court of Justice of the European Communities on
Grande Instance du Mans by judgment of that Court of
                                                                         29 September 2003 by the Commission of the European
8 September 2003 in the case of The Procureur de la
                                                                         Communities, represented by M. van Beek and M. Huttunen,
   Republique against Oliver Dupuy and Hervé Rouvre
                                                                         acting as Agents, with an address for service in Luxembourg.
                         (Case C-404/03)
                                                                         The Commission claims that the Court should:
                         (2003/C 275/54)
                                                                         1.     Declare that, by failing to require in its legislation with
                                                                                sufficient legal certainty that an appropriate assessment
                                                                                is to be made with respect to all projects, including those
                                                                                which are the subject of an ‘environmental impact
Reference has been made to the Court of Justice of the
                                                                                assessment’, the Republic of Finland has failed to fulfil its
European Communities by judgment of the Tribunal de
                                                                                obligations under Article 6(3) of Council Directive 92/
Grande Instance du Mans (Regional Court, Le Mans) of
                                                                                43/EEC of 21 May 1992 on the conservation of natural
8 September 2003, received at the Court Registry on 29 Sep-
                                                                                habitats and of wild fauna and flora (1);
tember 2003, for a preliminary ruling in the case of The
Procureur de la Republique against Oliver Dupuy and Hervé
Rouvre on the following question:                                        2.     Order the Republic of Finland to pay the costs.
 ---pagebreak--- 15.11.2003              EN                        Official Journal of the European Union                                            C 275/37
Pleas in law and main arguments                                           The Commission of the European Communities claims that
                                                                          the Court should:
Finland has failed to fulfil its obligations under the nature
directive by failing to require in its legislation with sufficient        1.    declare that the Kingdom of Belgium:
legal certainty that an appropriate assessment is to be made in
respect of all projects, including those which are the subject of
an environmental impact assessment. That fact alone suffices                    —     has failed to fulfil its obligations under Article 18
to found the present action.                                                          EC and Directive 90/364/EEC on the right of
                                                                                residence, by making the right of residence of
                                                                                citizens of the Union subject to the condition that
Finland took the view in its response to the letter of formal                         they have sufficient personal resources;
notice that if the Environmental Impact Assessment Law
applies to a project, the explanations made in connection with
the environmental impact assessment procedure may be the                        —     has failed to fulfil its obligations under Directive 90/
appropriate assessment within the meaning of Paragraph 65 of                          364/EEC on the right of residence (1), under Article 4
the Nature Protection Law. According to Finland, overlapping                          of Directive 68/360/EEC on the abolition of restric-
procedures are thus prevented. Finland repeated its view in its                       tions on movement and residence within the Com-
reply to the reasoned opinion.                                                        munity for workers of Member States and their
                                                                                families (2), under Article 4 of Directive 73/148/EEC
                                                                                on the abolition of restrictions on movement and
In so far as Finland refers to difficulties in practice in                            residence within the Community for nationals of
bringing its legislation into line with its Treaty obligations, the                   Member States with regard to establishment and the
Commission recalls the settled case-law of the Court of Justice                       provision of services (3), under Article 2 of Directive
which says that internal difficulties within the State connected                      93/96/EEC on the right of residence for students, (4)
with the conditions in which laws and regulations are drafted                         and under Article 2 of Directive 90/365/EEC on the
cannot release a Member State from its obligations under                              right of residence for employees and self-employed
Community law. Similarly, in accordance with the settled case-                        persons who have ceased their occupational
law of the Court of Justice, when assessing whether a Member                          activity (5), by providing for the possibility to give
State has failed to fulfil its obligations of membership, regard                      automatic notification of an order to leave the
must be had to the situation of the Member State as it is at the                      country to citizens of the Union who have not
expiry of the time-limit set in the reasoned opinion.                                 produced the documents necessary to obtain a
                                                                                residence permit within a prescribed period;
As yet, it has not yet come to the knowledge of the Commission
that the necessary measures for aligning national legislation             2.    order the Kingdom of Belgium to pay the costs.
with Article 6(3) of the nature directive have been carried out,
or at least they have not been notified to the Commission.
(1) OJ L 206, 22.7.1992, p. 7.
                                                                          Pleas in law and main arguments
                                                                          The Belgian legislation and administrative practice infringe
                                                                          Community law in that they lay down:
Action brought on 30 September 2003 by the Com-                           —     the condition of possession of sufficient personal
mission of the European Communities against the                                 resources.
                       Kingdom of Belgium
                                                                                Article 1 of Directive 90/364/EEC requires that the citizen
                         (Case C-408/03)                                        of the Union proves that he has, for himself and the
                                                                                members of his family, sufficient resources, but does not
                                                                                require that the resources are his. The Directive introduces
                         (2003/C 275/56)                                        in respect of the host Member State a flexible system of
                                                                                guarantees which evolves over time, intended to allow
                                                                                the citizen of the Union to move easily within the
                                                                                territory of the Member States without having to prove
An action against the Kingdom of Belgium was brought                            that he has means of subsistence for the entire duration
before the Court of Justice of the European Communities on                      of his stay. However, the system of the Belgian authorities
30 September 2003 by the Commission of the European                             seeks to introduce additional guarantees in order to avoid
Communities, represented by M. Condou Durande and D. Mar-                       ab initio the citizen of the Union becoming a burden on
tin, acting as Agents, with an address for service in Luxem-                    the social assistance system, which is inherently contrary
bourg.                                                                          to the spirit of Directive 90/364/EEC.


title: Joined Cases T-387/06 to T-390/06: Judgment of the Court of First Instance of 10 October 2008 — Inter-Ikea Systems v OHIM (Representation of a pallet) (Community trade mark — Application for registration of figurative Community trade mark representing a pallet — Absolute ground for refusal — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/31

         Judgment of the Court of First Instance of 10 October 2008 — Inter-Ikea Systems v OHIM (Representation of a pallet)
   (Joined Cases T-387/06 to T-390/06) (1)

   (Community trade mark - Application for registration of figurative Community trade mark representing a pallet - Absolute ground for refusal - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2008/C 301/50)
   Language of the case: English
   Parties

      Applicant: Inter-Ikea Systems BV (Delft, Netherlands) (represented by: J. Gulliksson, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, Agent)
   Re:
   ACTIONS brought against four decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 26 September 2006 (R 353/2006-1, R 354/2006-1, R 355/2006-1 and R 356/2006-1) concerning applications for the registration of four figurative trade marks consisting of graphic representations of a pallet.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decisions of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 26 September 2006 (R 353/2006-1, R 354/2006-1, R 355/2006-1 and R 356/2006-1) in so far as registration of the marks applied was refused in respect of goods and services in Classes 6, 7, 16, 20, 35, 39 and 42 of the Nice Agreement concerning the International Classification of Goods and Services for the Purpose of the Registration of Marks of 15 June 1957, as revised and amended but not in so far as that refusal was in respect of ‘loading pallets of metal’, ‘loading carriers and loading pallets of metal for packaging and transportation purposes’ and ‘metal transport pallets’, in Class 6; ‘goods pallets not of metal’, ‘loading pallets and loading carriers not of metal for packaging and transportation purposes’ and ‘transport pallets not of metal’, in Class 20; and the ‘rental of loading pallets’ services, in Class 39;

               2.

               Dismisses the actions as to the remainder;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 20, 27.1.2007.


title: Case T-283/08 P: Appeal brought on 16 July 2008 by P. Longinidis against the judgment of the Civil Service Tribunal delivered on 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/28

         Appeal brought on 16 July 2008 by P. Longinidis against the judgment of the Civil Service Tribunal delivered on 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop
   (Case T-283/08 P)
   (2008/C 272/54)
   Language of the case: Greek
   Parties

      Appellant: Pavlos Longinidis (represented by P. Giatagantzidis and S. Stavropoulou, lawyers)

      Other party to the proceedings: Cedefop
   Form of order sought by the appellant

               —

               set aside the judgment of the European Union Civil Service Tribunal of 24 April 2008 in Case F-74/06 Pavlos Longinidis v Cedefop;

               —

               annul the decision of the Director of Cedefop of 30 November 2005 terminating the appellant's employment contract of indefinite duration of 4 March 2003, and any other related administrative act;

               —

               annul the decision of the Director of Cedefop of 11 November 2005 amending the composition of the Appeals Committee of Cedefop, and any other related administrative act;

               —

               annul the decision of the Appeals Committee of Cedefop of 24 May 2006 rejecting the appellant's complaint of 28 February 2006, and any other related administrative act;

               —

               uphold the action brought by the appellant on 19 June 2006;

               —

               order Cedefop to pay the costs of both the case at first instance and the appeal.

         Pleas in law and main arguments
   By his action, the appellant sought, inter alia, the annulment of the decision of the Director of Cedefop terminating his employment contract of indefinite duration. That action was dismissed by judgment of the Civil Service Tribunal of 24 April 2008.
   The appellant submits that the judgment under appeal was delivered in breach of the rules that govern the bringing of evidence because it was based on matters that were not proved. More specifically, when examining the appellant's argument that the reasons for dismissal were communicated to him orally at the meeting on 23 November 2005, the Civil Service Tribunal erred in law because it altered the subject of the evidence.
   In addition, the appellant contends that the reasoning set out in the judgment under appeal is not adequate. In particular, he asserts that the Civil Service Tribunal's reasoning was not adequate when it decided whether the appellant was appropriately and sufficiently informed by Cedefop as to the reasons for his dismissal and that the Tribunal did not specify all the facts which in its view led to his dismissal.
   Finally, the appellant submits that his complaint of 28 February 2006 challenging the decision to dismiss him was not heard by the Appeals Committee of Cedefop in an objective and impartial manner.


title: Case T-168/06: Action brought on 19 June 2006 — Italian Republic v Commission

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/28

         Action brought on 19 June 2006 — Italian Republic v Commission
   (Case T-168/06)
   (2006/C 190/52)
   Language of the case: Italian
   Parties

      Applicant: Italian Republic (represented by: Paolo Gentili, Avvocato dello Stato)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Memorandum No 03232 of 7 April 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme SPD Lombardia (No CCI 2000 IT 16 2 DO 014);

               —

               annul Memorandum No 03903 of 5 May 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref SPD Ob. 2 Lazio 2000-2006 (No CCI 2000 IT 16 2 DO 009);

               —

               annul Memorandum No 04240 of 18 May 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme SPD Lombardia (No CCI 2000 IT 16 2 DO 014),

               —

               annul Memorandum No 04241 of 18 May 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning certification and declaration of intermediate expenses and requests for payment. Ref. SPD Veneto Ob. 2 2000-2006 (No CCI 2000 IT 16 2 DO 005);

               —

               annul Memorandum No 04468 of 29 May 2006 of the European Commission, Directorate-General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref. Programme PEP Sardegna 2000-2006 (No CCI 1999 IT 16 1 PO 010);

               —

               annul all related and prior measures and, consequently, order the Commission of the European Communities to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are similar to those relied on in Case T-345/04 Italian Republic v Commission. (1)

      (1)  OJ C 262, 23.10.2004, p. 55.


title: Case C-436/05: Order of the Court (Fifth Chamber) of 6 October 2006 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Lucien de Graaf, Gudula Daniels v Belgian State (Preliminary references — Inadmissibility)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/24

         Order of the Court (Fifth Chamber) of 6 October 2006 (reference for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Lucien de Graaf, Gudula Daniels v Belgian State
   (Case C-436/05) (1)

   (Preliminary references - Inadmissibility)
   (2006/C 326/47)
   Language of the case: Dutch
   Referring court
   Hof van beroep te Antwerpen
   Parties

      Applicants: Lucien de Graaf, Gudula Daniels

      Defendant: Belgian State
   Re:
   Reference for a preliminary ruling — Hof van beroep te Antwerpen — Interpretation of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996 (OJ 1997 L 28, p. 1) — Material scope — Whether applicable or not to a supplementary crisis contribution levied by a Member State to finance its social security system — Obligation to pay the contribution even where a person is liable to pay contributions to a social security system other than that of the State of residence — Whether compatible with Article 39 EC
   Operative part of the order
   The reference for a preliminary ruling from the Hof van beroep te Antwerpen, by decision of 29 November 2005, is inadmissible.

      (1)  OJ C 36 of 11.2.2006.


title: Case T-75/06: Judgment of the Court of First Instance of 9 September 2008 — Bayer CropScience and Others v Commission (Directive 91/414/EEC — Plant protection products — Endosulfan as an active substance — Withdrawal of marketing authorisations — Evaluation procedure — Time-limits — Rights of the defence — Principle of proportionality)

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/19

         Judgment of the Court of First Instance of 9 September 2008 — Bayer CropScience and Others v Commission
   (Case T-75/06) (1)

   (Directive 91/414/EEC - Plant protection products - Endosulfan as an active substance - Withdrawal of marketing authorisations - Evaluation procedure - Time-limits - Rights of the defence - Principle of proportionality)
   (2008/C 272/35)
   Language of the case: English
   Parties

      Applicants: Bayer CropScience AG (Monheim am Rhein, Germany); Makhteshim-Agan Holding BV (Rotterdam, Netherlands); Alfa Georgika Efodia AEVE (Athens, Greece); and Aragonesas Agro, SA (Madrid, Spain) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: Commission of the European Communities (represented by: B. Doherty and L. Parpala, acting as Agents)

      Intervener in support of the applicants: European Crop Protection Association (ECPA) (Brussels, Belgium) (represented by: D. Waelbroeck and N. Rampal, lawyers)

      Intervener in support of the defendant: Kingdom of Spain (represented by: J. Rodríguez Cárcamo, abogado del Estado)
   Re:
   APPLICATION for the annulment of Commission Decision 2005/864/EC of 2 December 2005 concerning the non-inclusion of Endosulfan in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that active substance (OJ 2005 L 317, p. 25)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bayer CropScience AG, Makhteshim-Agan Holding BV, Alfa Georgika Efodia AEVE and Aragonesas Agro, SA to bear their own costs and to pay those incurred by the Commission;

               3.

               Orders the Kingdom of Spain and the European Crop Protection Association (ECPA) to bear their own costs.

      (1)  OJ C 96, 22.4.2006.


title: Judgment of the Court (First Chamber) of 21 March 2000 in Case C-217/98 (reference for a preliminary ruling from the Bundesfinanzhof): Hauptzollamt Hamburg-Jonas v LFZ Nordfleisch AG (Agriculture — Common organisation of the markets — Beef and veal — Export refund — Withdrawal of the application for advance payment — Effect on the security)

text:
C 149/6                  EN                      Official Journal of the European Communities                                          27.5.2000
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                          of 21 March 2000                                                             (First Chamber)
in Joined Cases C-110/98 to C-147/98 (reference for a
preliminary ruling from the Tribunal Económico-Admini-                                              of 21 March 2000
strativo Regional de Cataluña): Gabalfrisa SL and Others
v Agencia Estatal de Administración Tributaria (AEAT) (1)                  in Case C-217/98 (reference for a preliminary ruling from
                                                                            the Bundesfinanzhof): Hauptzollamt Hamburg-Jonas v
(Meaning of national court or tribunal for the purposes of                                        LFZ Nordfleisch AG (1)
Article 177 of the EC Treaty (now Article 234 EC) —
Admissibility — Value added tax — Interpretation of Article
                                                                            (Agriculture — Common organisation of the markets —
17 of Sixth Directive 77/388/EEC — Deduction of tax paid
                                                                            Beef and veal — Export refund — Withdrawal of the
on inputs — Activities prior to carrying out economic
                                                                             application for advance payment — Effect on the security)
                  transactions on a regular basis)
                           (2000/C 149/09)                                                             (2000/C 149/10)
                    (Language of the case: Spanish)                                             (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Joined Cases C-110/98 to C-147/98: references to the Court
under Article 177 of the EC Treaty (now Article 234 EC) from                In Case C-217/98: Reference to the Court under Article 177 of
the Tribunal Económico-Administrativo Regional de Cataluña                the EC Treaty (now Article 234 EC) by the Bundesfinanzhof
(Spain) for a preliminary ruling in the proceedings pending                 (Federal Finance Court), Germany, for a preliminary ruling in
before that court between Gabalfrisa SL and Others and                      the proceedings pending before that court between Haupt-
Agencia Estatal de Administración Tributaria (AEAT) — on                   zollamt Hamburg-Jonas, and LFZ Nordfleisch AG on the
the interpretation of Article 17 of Sixth Council Directive                 interpretation of the second paragraph of Article 33(1) of
77/388/EEC of 17 May 1977 on the harmonisation of the                       Commission Regulation (EEC) No 3665/87 of 27 November
laws of the Member States relating to turnover taxes —                      1987 laying down common detailed rules for the application
Common system of value added tax: uniform basis of assess-                  of the system of export refunds on agricultural products
ment (OJ 1977 L 145, p. 1) — the Court, composed of:                        (OJ 1987 L 351, p. 1) as amended by Commission Regulation
G.C. Rodrı́guez Iglesias, President, J.C. Moitinho de Almeida               (EEC) No 1615/90 of 15 June 1990 (OJ 1990 L 152, p. 33) in
(Rapporteur), L. Sevón and R. Schintgen (Presidents of Cham-               conjunction with the first paragraph of Article 29 of Regulation
bers), P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, G. Hirsch,             (EEC) No 2220/85 of 22 July 1985 laying down common
P. Jann, H. Ragnemalm, and M. Wathelet, Judges; A. Saggio,                  detailed rules for the application of the system of securities for
Advocate General; R. Grass, Registrar, has given a judgment                 agricultural products (OJ 1985 L 205, p. 5) — the Court (First
on 21 March 2000, in which it has ruled:                                    Chamber), composed of: L. Sevón (Rapporteur), President of
                                                                            the Chamber, P. Jann and M. Wathelet, Judges; A. La Pergola,
Article 17 of Sixth Council Directive 77/388/EEC of 17 May 1977             Advocate General; L. Hewlett, Administrator, for the Registrar,
on the harmonisation of the laws of the Member States relating to           has given a judgment on 21 March 2000, in which it has ruled:
turnover taxes — Common system of value added tax: uniform basis
of assessment precludes national legislation which makes the exercise
                                                                            The second paragraph of Article 33(1) of Commission Regulation
of the right to deduct value added tax paid by a taxable person liable
                                                                            (EEC) No 3665/87 of 27 November 1987 laying down common
thereto before he starts regularly carrying out taxable transactions
                                                                            detailed rules for the application of the system of export refunds on
conditional upon the fulfilment of certain requirements such as the
                                                                            agricultural products, as amended by Commission Regulation (EEC)
submission of an express request to that effect before the tax concerned
                                                                            No 1615/90 of 15 June 1990, in conjunction with the first
becomes due and compliance with a time-limit of one year between
                                                                            paragraph of Article 29 of Commission Regulation (EEC)
that submission and the actual commencement of taxable trans-
                                                                            No 2220/85 of 22 July 1985 laying down common detailed rules
actions, and which penalises infringement of those requirements by
                                                                            for the application for the system of securities for agricultural
forfeiture of the right to deduct or deferment of the exercise of that
                                                                            products, is not applicable where an exporter, after submitting to the
right until the time at which taxable transactions actually begin to
                                                                            competent national authorities an application for advance payment
be carried out on a regular basis.
                                                                            of the export refund for goods placed under the customs warehousing
                                                                            scheme, in accordance with Article 29(2) of Regulation
(1) OJ C 209 of 4.7.1998.                                                   No 3665/87, withdraws his application in order to reintroduce those
                                                                            goods into the customs territory of the Community, but nevertheless
                                                                            receives the advance payment of the export refund originally applied
                                                                            for.
 ---pagebreak--- 27.5.2000                EN                     Official Journal of the European Communities                                             C 149/7
In those circumstances, the security provided for in Article 31(1) of          an objection, in accordance with Article 13(2) of that directive,
Regulation No 3665/87 must be released and only the amount paid                or if the Commission has taken a ‘favourable decision’ under
by way of advance payment of the export refund must be reimbursed              paragraph (4) of that provision, the competent authority which
by the exporter in accordance with the national provisions applicable          forwarded the application, with a favourable opinion, to the
to repayment of sums unduly paid.                                              Commission must issue the ‘consent in writing’, allowing the
                                                                               product to be placed on the market. However, if in the meantime
                                                                               the Member State concerned has new information which leads it
(1) OJ C 258 of 15.8.1998.                                                     to consider that the product for which notification has been
                                                                               received may constitute a risk to human health and the
                                                                               environment, it will not be obliged to give its consent, provided
                                                                               that it immediately informs the Commission and the other
                                                                               Member States about the new information in order that, within
                                                                               the period laid down in Article 16(2) of Directive 90/220, a
                                                                               decision may be taken in the matter in accordance with the
                                                                               procedure provided for in Article 21 of that directive.
                  JUDGMENT OF THE COURT
                                                                           2. Where the national court finds that, owing to irregularities in
                          of 21 March 2000                                     the conduct of the examination of the notification by the
                                                                               competent national authority provided for in Article 12(1) of
                                                                               Directive 90/220, it was not proper for that authority to forward
in Case C-6/99 (reference for a preliminary ruling from
                                                                               the dossier with a favourable opinion to the Commission as
the Conseil d’État): Association Greenpeace France and
                                                                               provided for in paragraph (2) of that provision, that court must
Others v Ministère de l’Agriculture et de la Pêche and
                                                                               refer the matter to the Court of Justice for a preliminary ruling if
                              Others (1)
                                                                               it considers that those irregularities are such as to affect the
                                                                               validity of the Commission’s favourable decision, if necessary
(Directive 90/220/EEC — Biotechnology — Genetically                            ordering the suspension of application of the measures for
 modified organisms — Decision 97/98/EC — Maize seeds)                         implementing that decision until the Court of Justice has ruled
                                                                               on the question of validity.
                           (2000/C 149/11)
                                                                           (1) OJ C 71 of 13.3.1999.
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                                JUDGMENT OF THE COURT
In Case C-6/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) by the Conseil d’État,                                           (Sixth Chamber)
France, for a preliminary ruling in the proceedings pending
before that court between Association Greenpeace France and                                         of 23 March 2000
Others and Ministère de l’Agriculture et de la Pêche and
Others, third parties: Novartis Seeds SA, Monsanto Europe SA               in Case C-373/97 (reference for a preliminary ruling from
— on the interpretation of Article 13(2) and (4) of Council                the Polimeles Protodikio Athinon): Dionisios Diamantis
Directive 90/220/EEC of 23 April 1990 on the deliberate                    v Elliniko Dimosio (Greek State) and Organismos Ikono-
release into the environment of genetically modified organisms                    mikis Anasinkrotisis Epikhiriseon AE (OAE) (1)
(OJ 1990 L 117, p. 15), as amended by Commission Directive
97/35/EC of 18 June 1997 adapting to technical progress for                (Company law — Second Directive 77/91/EEC — Public
the second time Council Directive 90/220 (OJ 1997 L 169,                   limited liability company in financial difficulties — Increase
p. 72) — the Court, composed of: G.C. Rodrı́guez Iglesias,                 in the capital of the company by administrative decision —
President, J.C. Moitinho de Almeida, L. Sevón and R. Schintgen            Abuse of a right arising from a provision of Community
(Presidents of Chambers), P.J.G. Kapteyn (Rapporteur), C. Gul-                                              law)
mann, J.-P. Puissochet, G. Hirsch, M. Wathelet, V. Skouris and
F. Macken, Judges; J. Mischo, Advocate General; H. von                                               (2000/C 149/12)
Holstein, Deputy Registrar, for the Registrar, has given a
judgment on 21 March 2000, in which it has ruled:
                                                                                (Language of the case: Greek)
1. Council Directive 90/220/EEC of 23 April 1990 on the
     deliberate release into the environment of genetically modified
     organisms, as amended by Commission Directive 97/35/EC of             (Provisional translation; the definitive translation will be published
     18 June 1997 adapting to technical progress for the second time                          in the European Court Reports)
     Council Directive 90/220, is to be interpreted as meaning that,
     if, after an application for placing a GMO on the market has          In Case C-373/97: reference to the Court under Article 177 of
     been forwarded to the Commission, no Member State has raised          the EC Treaty (now Article 234 EC) from the Polimeles


title: Case T-533/08: Action brought on 3 December 2008 — Telekomunikacja Polska v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/54

         Action brought on 3 December 2008 — Telekomunikacja Polska v Commission
   (Case T-533/08)
   (2009/C 44/95)
   Language of the case: Polish
   Parties

      Applicant: Telekomunikacja Polska SA (Warsaw, Poland) (represented by H. Romańczuk, M. Modzelewska de Raad and S. Hautbourg, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Commission Decision C(2008) 4997 of 4 September 2008 requiring the undertaking Telekomunikacja Polska SA and all undertakings directly or indirectly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation No 1/2003 (1);

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2008) 4997 of 4 September 2008 requiring the undertaking Telekomunikacja Polska SA and all undertakings directly or indirectly, wholly or partly controlled by it to submit to an inspection in accordance with Article 20(4) of Council Regulation No 1/2003, in connection with a procedure concerning the alleged application of practices incompatible with Article 82 EC in the electronic communications sector.
   The applicant raises the following pleas in law in support of its action:
   First, the applicant claims that the contested decision was taken in breach of the obligation to state proper reasons laid down in Article 253 EC and Article 20(4) of Council Regulation No 1/2003. In this connection the applicant complains that the Commission did not demonstrate in a satisfactory manner that it was in possession of information and evidence on the basis of which it could reasonably be asserted that the applicant had committed the infringement it was accused of. Moreover, according to the applicant, the Commission's decision did not describe with sufficient precision the facts which the Commission intended to examine in the course of the inspection. The applicant further submits that the Commission breached the obligations of describing in the contested decision the essential features of the infringement the applicant was accused of.
   Second, the applicant claims that the contested decision infringed the principle of proportionality, in that the Commission did not, according to the applicant, choose the method of carrying out the procedure which would have been the least oppressive for the applicant.
   Third, the applicant claims that the Commission did not ensure the applicant's rights of defence, particularly in connection with the infringements alleged by the applicant in relation to the contested decision in the first plea in law. In connection with the above, the applicant submits that it was not able to determine clearly what practices would be the subject of the Commission inspection and consequently to make a proper assessment of whether and to what extent the inspection was justified or of its obligation to cooperate with the Commission in the course of the inspection.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


title: Judgment of the Court (Fifth Chamber) of 18 March 1999 in Case C-59/97: Italian republic v Commission of the European Communities (EAGGF - Clearance of accounts - 1992 financial year)

text:
C 188/4                  EN                       Official Journal of the European Communities                                           3.7.1999
                  JUDGMENT OF THE COURT                                      Commission Decision 96/701/EC of 20 November 1996
                                                                             amending Decision 96/311/EC on the clearance of the
                          of 16 March 1999                                   accounts presented by the Member States in respect of the
                                                                             expenditure for 1992 of the Guarantee Section of the European
in Case C-222/97 (reference for a preliminary ruling from                    Agricultural Guidance and Guarantee Fund (EAGGF) and in
the Oberster Gerichtshof): in the proceedings brought                        respect of certain expenditure for 1993 (OJ 1996 L 323, p. 26)
before that court by Manfred Trummer and Peter May-                          — the Court (Fifth Chamber), composed of P. Jann, President
                                  er (1)                                     of the First Chamber, acting President of the Fifth Chamber,
                                                                             C. Gulmann, D.A.0. Edward, L. Sevón and M. Wathelet
(Free movement of capital — National prohibition on the                      (Rapporteur), Judges; S. Alber, Advocate General; L. Hewlett,
creation of a mortgage in a foreign currency — Interpretation                Administrator, for the Registrar, has given a judgment in
                 of Article 73b of the EC Treaty)                            which it:
                           (1999/C 188/06)                                   1. Dismisses the application;
                    (Language of the case: German)                           2. Orders the Italian Republic to pay the costs.
(Provisional translation; the definitive translation will be published       (1) OJ No C 142 of 10.5.1997.
                    in the European Court Reports)
In Case C-222/97: reference to the Court under Article 177 of
the EC Treaty by the Oberster Gerichtshof (Austria) for a
preliminary ruling in the proceedings brought before that court
by Manfred Trummer, Peter Mayer — on the interpretation of
Article 73b of the EC Treaty — the Court, composed of
G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn,
J.-P. Puissochet, G. Hirsch and P. Jann, Presidents of Chambers,                              JUDGMENT OF THE COURT
G.F. Mancini, J.C. Moitinho de Almeida, C. Gulmann, J.L. Mur-
ray, D.A.O. Edward, H. Ragnemalm, L. Sevón, M. Wathelet
(Rapporteur), R. Schintgen and K.M. Ioannou, Judges;                                                   (Fifth Chamber)
A. La Pergola, Advocate General; H.A. Rühl, Principal Adminis-
trator, for the Registrar, has given a judgment on 16 March                                          of 18 March 1999
1999, in which has ruled:
Article 73b of the EC Treaty precludes the application of national           in Case C-166/97: Commission of the European Communi-
rules such as those at issue in the main proceedings, requiring a                                ties v French Republic (1)
mortgage securing a debt payable in the currency of another Member
State to be registered in the national currency.                             (Failure by a Member State to fulfil its obligations —
                                                                                Conservation of wild birds — Special protection areas)
(1) OJ No C 228 of 26.7.1997.
                                                                                (1999/C 188/08)
                                                                                (Language of the case: French)
                  JUDGMENT OF THE COURT
                           (Fifth Chamber)                                   (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                          of 18 March 1999
in Case C-59/97: Italian republic v Commission of the                        In Case C-166/97: Commission of the European Communities
                     European Communities (1)                                (Agents: initially Richard B. Wainwright and Jean-Francis
                                                                             Pasquier, and subsequently Richard B. Wainwright and Olivier
 (EAGGF — Clearance of accounts — 1992 financial year)                       Couvert-Castéra) v French Republic (Agents: Kareen Rispal-
                                                                             Bellanger and Romain Nadal) — application for a declaration
                           (1999/C 188/07)                                   that, by taking neither the special conservation measures for
                                                                             the habitats of birds in the Seine estuary nor the appropriate
                                                                             steps to avoid deterioration of those habitats, the French
                     (Language of the case: Italian)                         Republic has failed to fulfil its obligations under Article 4 of
                                                                             Council Directive 79/409/EEC of 2 April 1979 on the
(Provisional translation; the definitive translation wil be published in     conservation of wild birds (OJ 1979 L 103, p. 1) — the Court
                      the European Court Reports)                            (Fifth Chamber), composed of J.-P. Puissochet, President of the
                                                                             Chamber, P. Jann, C. Gulmann (Rapporteur), L. Sevón and
In Case C-59/97: Italian Republic (Agent: U. Leanza, assisted                M. Wathelet, Judges; N. Fennelly, Advocate General, D. Louter-
by G. De Bellis) v Commission of the European Communities                    man-Hubeau, Principal Administrator, for the Registrar, has
(Agent: E. de March) — application for partial annulment of                  given a judgment on 18 March 1999 in which it:


title: Case T-173/99: Action brought on 29 July 1999 by Gilbert Elkaïm and Philippe Mazuel against the Commission of the European Communities

text:
C 281/26               EN                     Official Journal of the European Communities                                     2.10.1999
— order the selection board to pay compensation for the                  — annul any recruitments made by the Commission in
    damage caused, in such amount as the Court shall consider                consequence of competition No COM/A/15/98 and on the
    fair and reasonable;                                                     basis of the lists of suitable candidates published in the
                                                                             Official Journal on 3 July 1999;
— order the selection board to pay the costs, pursuant to
    Article 87 of the Rules of Procedure.                                — order the defendant to pay the costs.
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant contests the decision of the selection board in            The applicants contest, in particular, the manner in which
competition No COM A/12/98 by which it decided, on the                   competition No COM/A/15/98 was conducted and the results
ground that she allegedly lacked the minimum requisite                   thereof. They maintain in that connection that the competition
professional experience, as provided for in the competition              notice provided for two options, namely ‘fraud prevention’
notice, not admit her to the written tests.                              and ‘justice and home affairs’. According to the applicants, the
                                                                         tests in respect of the ‘justice and home affairs’ option related
In support of her claims, the applicant advances the following           very extensively to the combatting of fraud, with the result
pleas:                                                                   that there was discrimination in favour of candidates who had
                                                                         chosen the first option.
— infringement and misapplication of Article III(3) of the
    notice of competition;                                               In support of their claims, the applicants plead:
— breach of the obligation to provide a statement of reasons;            — infringement of the terms of the competition notice;
    and
                                                                         — contravention of the principle of equality between candi-
— failure to have regard to the general principle of sound                   dates;
    administration and transparency.
                                                                         — failure to observe the principle of sound administration;
According to the applicant, the competition notice recognised                and
as valid evidence of professional experience periods of appren-          — misuse of powers in the present case.
ticeship, specialisation or professional training, apart from
supplementary training periods. She maintains in that regard
                                                                         In the latter regard, the applicants maintain that the defendant
that the Commission failed to take account of all the certificates
                                                                         used the procedure for pre-selection on the basis of the
and attestations contained in the competition file. At all events,
                                                                         documentation in order to attempt to eliminate the partici-
had the defendant considered that documentation was unclear,
                                                                         pation of Mr Mazuel as a candidate in the competition. In
it should at least have asked for explanatory clarification in
                                                                         addition, it is clear from a comparison between the directory
relation to it.
                                                                         of Commission staff and the names of the persons included in
                                                                         the list of suitable candidates that the competition was
                                                                         organised with a view to offering establishment to contractual
                                                                         agents of the Commission and not with a view to the
                                                                         external recruitment of true specialists possessing skills and
                                                                         qualifications corresponding to the objectives publicised in the
                                                                         notice of competition.
Action brought on 29 July 1999 by Gilbert Elkaïm and
Philippe Mazuel against the Commission of the European
                          Communities
                         (Case T-173/99)
                         (1999/C 281/49)                                 Action brought on 30 July 1999 by Ana Caprile and
                                                                         Others against the Commission of the European Com-
                                                                                munities
                   (Language of the case: French)
                                                                                (Case T-174/99)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                        (1999/C 281/50)
European Communities on 29 July 1999 by Gilbert Elkaïm
residing in Paris, and Philippe Mazuel, residing in Brussels,
represented by Nicolas Ravailhe, of the Brussels Bar, with an                               (Language of the case: French)
address for service at the latter’s Chambers, 6 Rue Hydraulique,
Brussels.                                                                An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
The applicants claim that the Court should:                              European Communities on 30 July 1999 by Ana Caprile,
— annul open competition No COM/A/15/98;                                 residing in Belgium, Fabrizio Dell’Olio, residing in Italy, and
                                                                         Konrad Fuhrmann and Olivier Radelet, residing in Belgium,
— annul the lists of suitable candidates published, following            represented by Georges Vandersanden and Laure Levi, of the
    that competition, on 3 July 1999 in the Official Journal (OJ         Brussels Bar, with an address for service in Luxembourg at the
    C 187, p. 22);                                                       offices of Fiduciaire Myson SARL, 30 Rue de Cessange.


title: Case C-446/04: Judgment of the Court (Grand Chamber) of 12 December 2006 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, United Kingdom) — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue (Freedom of establishment — Free movement of capital — Directive 90/435/EEC — Corporation tax — Payment of dividends — Prevention or mitigation of a series of charges to tax — Exemption — Dividends received from companies resident in another Member State or a non member country — Tax credit — Advance corporation tax — Equal treatment — Claim for repayment or claim for damages)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/5

         Judgment of the Court (Grand Chamber) of 12 December 2006 (reference for a preliminary ruling from the High Court of Justice of England and Wales, Chancery Division, United Kingdom) — Test Claimants in the FII Group Litigation v Commissioners of Inland Revenue
   (Case C-446/04) (1)

   (Freedom of establishment - Free movement of capital - Directive 90/435/EEC - Corporation tax - Payment of dividends - Prevention or mitigation of a series of charges to tax - Exemption - Dividends received from companies resident in another Member State or a non member country - Tax credit - Advance corporation tax - Equal treatment - Claim for repayment or claim for damages)
   (2006/C 331/08)
   Language of the case: English
   Referring court
   High Court of Justice of England and Wales, Chancery Division
   Parties to the main proceedings

      Applicants: Test Claimants in the FII Group Litigation

      Defendant: Commissioners of Inland Revenue
   Re:
   Reference for a preliminary ruling — High Court of Justice of England and Wales, Chancery Division — Interpretation of Articles 43 and 56 EC and Articles 4(1) and 6 of Council Directive 90/435/EEC of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States (OJ 1990 L 225, p. 6) — Tax exemption granted in a Member State to a company established in its territory which received dividends paid by companies also established in its territory — Exemption not granted for dividends paid to that company by companies established in the territory of another Member State
   Operative part of the judgment

               1)

               Articles 43 EC and 56 EC must be interpreted as meaning that, where a Member State has a system for preventing or mitigating the imposition of a series of charges to tax or economic double taxation as regards dividends paid to residents by resident companies, it must treat dividends paid to residents by non-resident companies in the same way.
               Articles 43 EC and 56 EC do not preclude legislation of a Member State which exempts from corporation tax dividends which a resident company receives from another resident company, when that State imposes corporation tax on dividends which a resident company receives from a non resident company in which the resident company holds at least 10 % of the voting rights, while at the same time granting a tax credit in the latter case for the tax actually paid by the company making the distribution in the Member State in which it is resident, provided that the rate of tax applied to foreign-sourced dividends is no higher than the rate of tax applied to nationally-sourced dividends and that the tax credit is at least equal to the amount paid in the Member State of the company making the distribution, up to the limit of the amount of the tax charged in the Member State of the company receiving the distribution.
               Article 56 EC precludes legislation of a Member State which exempts from corporation tax dividends which a resident company receives from another resident company, where that State levies corporation tax on dividends which a resident company receives from a non-resident company in which it holds less than 10 % of the voting rights, without granting the company receiving the dividends a tax credit for the tax actually paid by the company making the distribution in the State in which the latter is resident.

               2)

               Articles 43 EC and 56 EC preclude legislation of a Member State which allows a resident company receiving dividends from another resident company to deduct from the amount which the former company is liable to pay by way of advance corporation tax the amount of that tax paid by the latter company, whereas no such deduction is permitted in the case of a resident company receiving dividends from a non resident company as regards the corresponding tax on distributed profits paid by the latter company in the State in which it is resident.

               3)

               Articles 43 EC and 56 EC do not preclude legislation of a Member State which provides that any relief for tax paid abroad made available to a resident company which has received foreign-sourced dividends is to reduce the amount of corporation tax against which that company may offset advance corporation tax.
               Article 43 EC precludes legislation of a Member State which allows a resident company to surrender to resident subsidiaries the amount of advance corporation tax paid which cannot be offset against the liability of that company to corporation tax for the current accounting period or previous or subsequent accounting periods, so that those subsidiaries may offset it against their liability to corporation tax, but does not allow a resident company to surrender such an amount to non-resident subsidiaries where the latter are taxable in that Member State on the profits which they made there.

               4)

               Articles 43 EC and 56 EC preclude legislation of a Member State which, while exempting from advance corporation tax resident companies paying dividends to their shareholders which have their origin in nationally-sourced dividends received by them, allows resident companies distributing dividends to their shareholders which have their origin in foreign-sourced dividends received by them to elect to be taxed under a regime which permits them to recover the advance corporation tax paid but, first, obliges those companies to pay that advance corporation tax and subsequently to claim repayment and, secondly, does not provide a tax credit for their shareholders, whereas those shareholders would have received such a tax credit in the case of a distribution made by a resident company which had its origin in nationally-sourced dividends.

               5)

               Article 57(1) EC is to be interpreted as meaning that where, before 31 December 1993, a Member State has adopted legislation which contains restrictions on capital movements to or from non-member countries which are prohibited by Article 56 EC and, after that date, adopts measures which, while also constituting a restriction on such movements, are essentially identical to the previous legislation or do no more than restrict or abolish an obstacle to the exercise of the Community rights and freedoms arising under that previous legislation, Article 56 EC does not preclude the application of those measures to non-member countries when they apply to capital movements involving direct investment, including investment in real estate, establishment, the provision of financial services or the admission of securities to capital markets. Holdings in a company which are not acquired with a view to the establishment or maintenance of lasting and direct economic links between the shareholder and that company and do not allow the shareholder to participate effectively in the management of that company or in its control cannot, in this connection, be regarded as direct investments.

               6)

               In the absence of Community legislation, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, including the classification of claims brought by injured parties before the national courts and tribunals. Those courts and tribunals are, however, obliged to ensure that individuals should have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied on them and the amounts paid to that Member State or withheld by it directly against that tax. As regards other loss or damage which a person may have sustained by reason of a breach of Community law for which a Member State is liable, the latter is under a duty to make reparation for the loss or damage caused to individuals in the conditions set out in paragraph 51 of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, but that does not preclude the State from being liable under less restrictive conditions, where national law so provides.

      (1)  OJ C 6, 8.1.2005.


title: Case C-203/16 P: Appeal brought on 12 April 2016 by Mr Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH), formerly Heitkamp BauHolding GmbH against the judgment of the General Court (Ninth Chamber) delivered on 4 February 2016 in Case T-287/11 Heitkamp BauHolding GmbH v European Commission

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/37

      Appeal brought on 12 April 2016 by Mr Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH), formerly Heitkamp BauHolding GmbH against the judgment of the General Court (Ninth Chamber) delivered on 4 February 2016 in Case T-287/11 Heitkamp BauHolding GmbH v European Commission
      (Case C-203/16 P)
      (2016/C 211/48)
      Language of the case: German

         Parties

         Appellant: Dirk Andres (liquidator in the insolvency of Heitkamp BauHolding GmbH) (represented by: W. Niemann, S. Geringhoff and P. Dodos, lawyers)

         Other parties to the proceedings: European Commission, Federal Republic of Germany

         Form of order sought

                  —

                  quash, in part, the judgment of the General Court of 4 February 2016 in Case T-287/11, as formulated in the operative part, in so far as it dismissed the action (paragraphs 2 and 3 of the operative part) and by upholding the claims at first instance, annul Commission Decision 2011/527/EU of 26 January 2011 on State aid C 7/10 (ex CP 250/09 and NN 5/10) — Law on corporation tax (KStG) Scheme for the carry-forward of tax losses in the case of restructuring of companies in difficulty (Sanierungsklausel) (1),

                  —

                  in the alternative, quash, in part, paragraph 1 of the operative part of that judgment of the General Court, in so far as it dismissed the action (paragraphs 2 and 3 of the operative part) and refer the case back to the General Court;

                  —

                  order the respondent to pay the costs of the proceedings.

         Pleas in law and main arguments

      In support of its appeal, the appellant raises the following grounds of appeal:
      First of all, the appellant complains of procedural errors. The General Court did not provide reasons for its conclusions concerning the definitions of the reference framework, the selectivity of the measure and its justification, or it merely provided contradictory reasoning, and at the same time, by disregarding the appellant’s arguments, the General Court infringed its right to be heard.
      In addition, the appellant alleges infringement of Article 107 TFEU and relies on three grounds:
      First, the General Court incorrectly determined the reference framework, when, in combining the first and second stage of the selectivity examination, it erroneously evaluated the rule on the exclusion of the use of losses pursuant to Paragraph 8c(1) of the KStG as the relevant basic rule and the maintenance of losses under the ‘restructuring clause’ (Sanierungsklausel) of Paragraph 8c(1a) of the KStG as the exception. In that regard, the General Court failed to consider that the ‘restructuring clause’ is an integral part of more general and ordinary tax rules on the carrying forward of losses under Paragraph 10d of the German law on income tax (Einkommensteuergesetz, EstG) which are based on German constitutional law.
      Second, the General Court wrongly assessed the ‘restructuring clause’ to be selective. The General Court disregarded the fact that that ‘restructuring clause’ does not define any area of personal application, but rather is applicable to all undertakings, irrespective of their type and purpose. The ‘restructuring clause’ is indistinctly applicable to all undertakings which have encountered financial difficulties. In that context, the General Court also disregarded the fact that undertakings in difficulties and healthy ones, with regard to the relevant purpose of the rule on the limitation of losses, that is, to exclude the risk of misuse of losses, are not in a factual and legal comparable situation. In cases covered by the ‘restructuring clause’, such a misuse of losses would be excluded under the legislator’s authority of categorisation.
      Third, the General Court was wrong to consider, in any case, the ‘restructuring clause’ to be unjustified. The appellant maintains that that clause is not intended to support undertakings in difficulties, but to ensure taxation of such undertakings according to the principle of ability to pay as an intrinsic objective of German tax law. The maintenance of losses should, in particular, ultimately allow the tax exemption of what are known as ‘fictitious profits’ which arise from the waiver of debt through offsetting losses.

         (1)  OJ L 235, p. 26.


title: Case C-323/99: Reference for a preliminary ruling from the Bundesfinanzhof (Federa1 Finance Court) by order of that court of 15 July 1999 in the case of Finanzamt Düsseldorf-Mettmann v Klaus Brandenstein

text:
C 333/16               EN                   Official Journal of the European Communities                                      20.11.1999
(4) What is the relationship between Article 5(6) and                  Reference for a preliminary ruling from the Hoge Raad
    Article 5(7)(c) of the Directive?                                  der Nederlanden by judgment of that court of 24 August
                                                                       1999 in the case of G. van de Water against Staatssecreta-
(5) If the answer to Question (1) is to the effect that the                                    ris van Financiën
    subsequent (tax deductible) work carried out (bodywork
    repairs and respraying) is not subject to tax on disposal of                                (Case C-325/99)
    the goods (car) under Article 5(6) of the Directive, is the
    deduction of input tax on these services to be adjusted                                     (1999/C 333/34)
    under Article 20(1)(b) of the Directive?
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by judgment of the Hoge Raad der
(1) OJ 1977 L 145, p. 1.                                               Nederlanden (Supreme Court of the Netherlands) of 24 August
                                                                       1999, received at the Court Registry on 31 August 1999, for
                                                                       a preliminary ruling in the case of G. van de Water against
                                                                       Staatssecretaris van Financiën on the following question:
                                                                       Can the (mere) holding of a product subject to excise duty
                                                                       within the meaning of Article 3(1) of Council Direc-
                                                                       tive 92/12/EEC (1) be regarded as a release for consumption
Reference for a preliminary ruling from the Bundes-                    within the meaning of Article 6(1) of that Directive, if and in
finanzhof (Federa1 Finance Court) by order of that court               so far as duty has not already been levied on it pursuant to
of 15 July 1999 in the case of Finanzamt Düsseldorf-                   the applicable provisions of Community law and national
              Mettmann v Klaus Brandenstein                            legislation?
                         (Case C-323/99)                               (1) OJ 1992 L 76, p. 1.
                         (1999/C 333/33)
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Bundesfinanzhof              Reference for a preliminary ruling from the Hoge Raad
of 15 July 1999, which was received at the Court Registry on           der Nederlanden by judgment of that court of 24 August
27 August 1999, for a preliminary ruling in the case of                1999 in the case of Stichting ‘Goed Wonen’ (formerly
Finanzamt Düsseldorf-Mettmann v Klaus Brandenstein on the              Woningbouwvereniging ‘Goed Wonen’) against Staatsse-
following question:                                                                          cretaris van Financiën
Under the first sentence of Article 5(6) of Directive                                           (Case C-326/99)
77/388/EEC (1), the application by a taxable person of goods
forming part of his business assets for his private use, where                                  (1999/C 333/35)
the value added tax on the goods in question or the component
parts thereof was wholly or partly deductible, is to be treated        Reference has been made to the Court of Justice of the
as supplies made for consideration.                                    European Communities by judgment of the Hoge Raad der
                                                                       Nederlanden (Supreme Court of the Netherlands) of 24 August
1. Is this provision applicable where, although VAT on the             1999, received at the Court Registry on 31 August 1999, for
    goods themselves was not deductible, VAT was deductible            a preliminary ruling in the case of Stichting ‘Goed Wonen’
    on the services or supplies which the taxable person               (formerly Woningbouwvereniging ‘Goed Wonen’) against
    ordered or received in respect of those goods after their          Staatssecretaris van Financiën on the following questions:
    acquisition?
                                                                       1.     Is Article 5(3) of the Sixth Directive (1) to be interpreted
2. What does the term ‘component’ mean in the context of               as meaning that rights in rem entitling the holder thereof to
    this provision?                                                    use immovable property may be treated by the national
                                                                       legislature as corporeal rights only if the remuneration agreed
3. How is the basis of assessment to be determined for a               in respect of the grant, transfer, modification, waiver or
    disposal, where VAT is wholly or partly deductible, not on         termination of those rights is at least equivalent to the financial
    the goods disposed of, but on some of their components?            value of the property concerned?
4. Is the deduction of input tax which a taxable person has            2.     Are Article 13(B)(b) and Article 13(C)(a) of the Sixth
    claimed in respect of services or supplies for goods on the        Directive to be interpreted as meaning that the national
    purchase of which VAT was not deductible to be adjusted            legislature may treat the terms ‘leasing or letting’ as covering
    under Article 20 of Directive 77/388/EEC if the first sen-         not only leasing and/or letting in the sense applied to those
    tence of Article 5(6) of Directive 77/388/EEC is not appli-        terms by civil law but also any other form in which immovable
    cable?                                                             property is made available for use otherwise than by way of
                                                                       the supply thereof?
(1) OJ 1977 L 145, p. 1.
                                                                       (1) OJ 1977 L 145, p. 1.


               22.12.2016

               EN

               Official Journal of the European Union

               C 480/7

         Request for an Advisory Opinion from the EFTA Court by the Beschwerdekommission der Finanzmarktaufsicht dated 30 October 2015 in the case A v Finanzmarktaufsicht (FMA)
   (Case E-27/15)
   (2016/C 480/09)
   A request has been made to the EFTA Court by a letter dated 30 October 2015 from the Beschwerdekommission der Finanzmarktaufsicht (Appeals Board of the Financial Market Authority), which was received at the Court Registry on 16 November 2015, for an Advisory Opinion in the case A v Finanzmarktaufsicht (FMA) on the following questions:

               1.

               Must Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing be interpreted as meaning that ‘trust and company service providers’, within the meaning of Article 2(1)(3)(c) and point (7)(b) of Article 3 of that Directive, are subject to the obligation to obtain information on the purpose and intended nature of the business relationship as specified in Article 8(1)(c) and Article 9(6) of the Directive solely in accordance with the legislation of the Member State in which they are established (in welchem [der Dienstleister für Trusts und Gesellschaften] seinen rechtlichen Sitz hat)?

               2.

               If Question 1 is answered in the negative: What criteria must be used to determine whether ‘trust and company services providers’ are under the obligation to obtain information on the purpose and intended nature of the business relationship as specified in Article 8(1)(c) and Article 9(6) of the Directive in accordance with the legislation of another Member State?

               3.

               Do the answers to Questions 1 and 2 also apply where the company for which administrative services are provided is a company not incorporated in a Member State?


title: Action brought on 13 February 1997 by Juana de la Cruz Elena Vela Palacios against Economic and Social Committee (Case T-30/97)

text:
10 . 5 . 97            EN                      Official Journal of the European Communities                             No C 142/ 17
                                                         COURT OF FIRST INSTANCE
     ORDER OF THE COURT OF FIRST INSTANCE                                 European Communities on 13 February 1997 by Juana de
                      of 20 February 1997                                 la Cruz Elena Vela Palacios, residing at Casablanca
                                                                          ( Morocco ), represented by Jaime Creus, of the Barcelona
in Case T-141/96: Bergpracht Milchwerk GmbH & Co.                         Bar, with chambers at 377, Calle Consejo de Ciento,
KG and Others v. Commission of the European                               Barcelona .
                          Communities (')
                  (Disclaimer of jurisdiction)                            The applicant claims that the Court should annul the final
                            ( 97/C 142/36 )                               decision in Disciplinary Proceedings No 3/ 1995
                                                                          concerning the justification for her residential spa
               (Language of the case: German)                             treatment and, in particular, to annul the disciplinary
                                                                          measure of relegation in step, and order the
                                                                          reimbursement of the amount of remuneration withheld .
In Case T-141 /96 : Bergpracht Milchwerk GmbH & Co.
                                                                          Accordingly, the Court should annul all other financial
KG, established at Tettnang ( Germany), Hochland Reich,
                                                                          consequences of that disciplinary measure in respect of the
Summer      &    Co.      KG .,     established  at    Heimenkirch
                                                                          applicant's salary and all the legal consequences which the
( Germany ), Milchwerk Crailsheim eG, established at
                                                                          final decision taken in Disciplinary Proceedings No 3/ 1995
Crailsheim ( Germany ), Milchwerk Geislingen eG,
                                                                          may have produced.
established at Geislingen/Steige ( Germany ), Wendelstein
Käsewerk Molkerei Ziegenhain GmbH & Co . KG,
established at Bad Aibling ( Germany ) and Zentral-Molke                 Pleas in law and main arguments adduced in support:
rei Aurich GmbH, established at Aurich ( Germany ),
represented by Jürgen Salzwedel and Michael Loschelder,
with an address for service in Luxembourg at the                          The applicant challenges the disciplinary measure of
Chambers of M. Loesch, 11 Rue Goethe, against                             relegation to category C, grade 4, step 2, imposed by way
Commission of the European Communities ( Agents: J. L.                    of final decision in Disciplinary Proceedings No 3/1995
Buhigues and U. Wölker) — application for the annulment                   concerning residential spa treatment in Ischia ( Italy). The
of Commission Regulation ( EC ) No 1107/96 of 12 June                     disciplinary measure was imposed as a result of the failure
1996 on the registration of geographical indications and                  to account for the days spent under the abovementioned
designations of origin under the procedure laid down in                   treatment .
Article 17 of Council Regulation ( EEC ) No 2081/92 ( OJ
No L 148 , 21 . 6 . 1996, p. 1 ) in so far as concerns the
registration of feta as a protected designation of origin —               In this regard, the applicant maintains that the only
the Court of First Instance ( Fifth Chamber), composed of                 supporting documents in her possession, the medical
R. García-Valdecasas, President, J. Azizi and M. Jaeger,                  report from the spa establishment and the invoices for the
Judges; H. Jung, Registrar, made an order on 20 February                  treatment undergone, were sent to the Medical Officer for
                                                                          the Sickness and Accident Insurance Scheme in accordance
1997, the operative part of which is as follows:
                                                                          with the necessary procedure for the reimbursement of
                                                                          expenses incurred.
1 . Jurisdiction is declined in Case T-141 /96 Bergpracht
     Milchwerk     GmbH           &   Co.    KG   and    Others   v.
     Commission of the European Communities in order to                   The applicant further alleges that essential administrative
     enable the Court of Justice to rule on the application               procedural requirements were infringed inasmuch as the
     for annulment.                                                       contested decision was adopted without a hearing having
                                                                          first been held and without an adequate statement of
2.   The costs are reserved.                                              reasons sufficient to justify the appointing authority's
                                                                          departure from the disciplinary measure proposed in the
(') OJ No C 336 , 9 . 11 . 1996 .                                         opinion of the Disciplinary Board. In the alternative, the
                                                                          applicant points out that the expert opinion contains a
                                                                          paragraph which expresses the views of the Chair of the
                                                                          Disciplinary Board, which constitutes an abuse of the
                                                                          powers granted to him .
Action brought on 13 February 1997 by Juana de la
Cruz Elena Vela Palacios against Economic and Social
                                Committee                                 As regards the substance, the applicant claims that there
                                                                          has been an error of assessment of the facts since the
                           ( Case T-30/97 )                               number of days of absence which have not been accounted
                                                                          for is incorrect and that there has been a breach of the
                             ( 97/C 142/37)
                                                                          principle that the disciplinary measure imposed should be
                                                                          proportional to the conduct in respect of which it is
                (Language of the case: Spanish)                           imposed.
An action against the Economic and Social Committee
was brought before the Court of First Instance of the