title: Judgment of the Court (Sixth Chamber) of 14 November 2002 in Case C-112/01 (Reference for a preliminary ruling from the Vestre Landsret): SPKR 4 nr. 3482 ApS v Skatteministeriet, Told- og Skattestyrelsen, Aktieselskabet af 11/9 1996, Arden Transport & Spedition ved Søren Lauritsen og Lene Lauritsen I/S (ATS) (Regulations (EEC) Nos 2913/92 and 2454/93 — External Community transit — Offence or irregularity — Recovery of a customs debt — Conditions)

text:
21.12.2002              EN                       Official Journal of the European Communities                                            C 323/21
2.    Article 6(3) of Directive 76/768 as amended by Directive 93/          Customs Code, read in conjunction with Council Regulation (EEC)
      35 precludes national legislation which authorises the use of         No 2913/92 of 12 October 1992 establishing the Community
      information as referred to in Question 1 only on condition that       Customs Code, should be interpreted as meaning that a customs debt
      prior authorisation is granted by the competent Minister.             arising by reason of an offence or irregularity committed in connection
                                                                            with a consignment placed under the external Community transit
                                                                            procedure can be recovered from the principal by the office of departure
( 1) OJ C 118 of 21.4.2001.                                                 even if it did not notify the principal before the end of the 11th
                                                                            month following the date of registration of the Community transit
                                                                            declaration that the consignment had not been presented at the office
                                                                            of destination and that the place of the offence or irregularity could
                                                                            not be established. The same applies if the office of departure did not
                                                                            follow an administrative procedure for the transmission of infor-
                                                                            mation, such as the early warning system, or if the failure to comply
                                                                            with the time-limit was due to error or negligence on the part of that
                 JUDGMENT OF THE COURT                                      office.
                         (Sixth Chamber)
                                                                            (1 ) OJ C 134 of 5.5.2001.
                      of 14 November 2002
in Case C-112/01 (Reference for a preliminary ruling
from the Vestre Landsret): SPKR 4 nr. 3482 ApS v
Skatteministeriet, Told- og Skattestyrelsen, Aktieselskab-
et af 11/9 1996, Arden Transport & Spedition ved Søren
           Lauritsen og Lene Lauritsen I/S (ATS) ( 1)
                                                                                JUDGMENT OF THE COURT
(Regulations (EEC) Nos 2913/92 and 2454/93 — External
Community transit — Offence or irregularity — Recovery                                               (Fourth Chamber)
                of a customs debt — Conditions)
                          (2002/C 323/27)                                                          of 7 November 2002
                   (Language of the case: Danish)                                       in Case C-184/01 P: Peter Hirschfeldt (1)
(Provisional translation; the definitive translation will be published      (Appeal — Officials — Internal competition — Cancellation
                   in the European Court Reports)                           — Transfer — Promotion — Article 8 of the Staff Regu-
                                                                                lations)
In Case C-112/01: Reference to the Court under Article 234                                            (2002/C 323/28)
EC by the Vestre Landsret (Denmark) for a preliminary ruling
in the proceedings pending before that court between SPKR 4
nr. 3482 ApS and Skatteministeriet, Told- og Skattestyrelsen,                                   (Language of the case: French)
Aktieselskabet af 11/9 1996, Arden Transport & Spedition
ved Søren Lauritsen og Lene Lauritsen I/S (ATS), on the
interpretation of Council Regulation (EEC) No 2913/92 of                    (Provisional translation; the definitive translation will be published
12 October 1992 establishing the Community Customs Code                                        in the European Court Reports)
(OJ 1992 L 302, p. 1), and Commission Regulation (EEC)
No 2454/93 of 2 July 1993 laying down provisions for the
implementation of Council Regulation (EEC) No 2913/92 (OJ
1993 L 253, p. 1), the Court (Sixth Chamber), composed of:
                                                                            In Case C-184/01 P, Peter Hirschfeldt (Agents: J.-N. Louis and
J.-P. Puissochet, President of the Chamber, C. Gulmann,
V. Skouris, F. Macken and J.N. Cunha Rodrigues (Rapporteur),                V. Peere): Appeal against the judgment of the Court of First
Judges; J. Mischo, Advocate General; H. von Holstein, Deputy                Instance of the European Communities (Fifth Chamber) of
                                                                            13 February 2001 in Case T-166/00 Hirschfeldt v EEA [2001]
Registrar, has given a judgment on 14 November 2002, in
which it has ruled:                                                         ECR-SC I-A-41 and II-157, seeking to have that judgment set
                                                                            aside and the claims at first instance allowed, the other party
                                                                            to the proceedings being: European Environment Agency,
Article 379(1) of Commission Regulation (EEC) No 2454/93 of                 represented by J.-L. Salazar and J. Rivière, acting as Agents,
2 July 1993 laying down provisions for the implementation of                assisted by D. Waelbroeck, avocat, with an address for service
Council Regulation (EEC) No 2913/92 establishing the Community              in Luxembourg, the Court (Fourth Chamber), composed of:


title: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division, by order of that court, of 25 August 1998, in the case of The Queen against Ministry of Agriculture, Fisheries and Food, ex parte: J. H. Cooke and Sons (a firm) (Case C-372/98)

text:
19.12.98              EN               Official Journal of the European Communities                                   C 397/19
(5) Is the prohibition on discrimination, whether overt or        on 16 October 1998, for a preliminary ruling in the case
     covert, contained in Article 9 of the EEC-Turkey             of The Queen against Minsitry of Agriculture, Fisheries
     Agreement, and/or Article 12 of the EEC-Turkey               and Food, ex parte: J. H. Cooke and Sons (a firm), on the
     Agreement and/or Article 37 of the Additional                following question:
     Protocol to be interpreted as precluding a Member
     State from applying its immigration rules in a way
     that grants a Turkish national temporary, rather than        Is the expression an area which has been cultivated in the
     permanent, permission to engage in employment?               previous year with a view to a harvest' in Article 2 of
                                                                  Commission Regulation (EC) No 762/94 (1) of 6 April
                                                                  1994, laying down detailed rules for the application of
                                                                  Council Regulation (EEC) No 1765/92 (2) with regard to
                                                                  the set-aside scheme, to be interpreted as including land
                                                                  which has been in grass in the previous year, where the
                                                                  grass has been cut and used for silage?
Reference for a preliminary ruling by the High Court of
Justice (England and Wales), Queen's Bench Division, by
                                                                  (1) OJ L 90, 7.4.1994, p. 8.
order of that court of 21 July 1998, in the case of The
                                                                  (2) OJ L 181, 1.7.1992, p. 12.
Queen against Secretary of State for the Environment,
Transport and the Regions, ex parte: First Corporate
                         Shipping Ltd
                       (Case C-371/98)
                        (98/C 397/31)
                                                                  Reference for a preliminary ruling by the Landgericht Kiel
Reference has been made to the Court of Justice of the            by order of that court of 13 October 1998 in the case of
European Communities by an order of the High Court of             PreussenElektra Aktiengesellschaft against Schleswag
Justice (England and Wales), Queen's Bench Division, of                                  Aktiengesellschaft
21 July 1998, which was received at the Court Registry on                                (Case C-379/98)
16 October 1998, for a preliminary ruling in the case of
The Queen against Secretary of State for the Environment,                                  (98/C 397/33)
Transport and the Regions, ex parte: First Corporate
Shipping Ltd, on the following question:
                                                                  Reference has been made to the Court of Justice of the
                                                                  European Communities by order of the Second
Is a Member State entitled or obliged to take account of          Commercial Chamber of the Landgericht Kiel (Regional
the considerations laid down in Article 2(3) and Council          Court, Kiel) of 13 October 1998, received at the Court
Directive 92/43/EEC (1) on the conservation of natural            Registry on 23 October 1998, for a preliminary ruling in
habitats and of wild fauna and flora, namely, economic,           the case of PreussenElektra Aktiengesellschaft against
social and cultural requirements and regional and local           Schleswag Aktiengesellschaft on the following questions:
characteristics, when deciding which sites to propose to
the Commission pursuant to Article 4(1) of that Directive
and/or defining the boundaries of such sites?
                                                                  (a) Do the rules on payment and compensation for
                                                                       supplies of electricity, laid down in Paragraph 2 or 3
(1) OJ L 206, 22.7.1992, p. 7.                                         or 4 or in Paragraphs 2 to 4 of the Law governing the
                                                                       supply of electricity from renewable energy sources
                                                                       over the public grid (Law on the supply of electricity)
                                                                       of 7 December 1990 (BGBl I, at p. 26 to 33), in the
                                                                       version set out in Article 3(2) of the Law reforming
                                                                       the law governing the energy supply industry of
                                                                       24 April 1998 (BGBl I, p. 730 (p. 734 to 736)),
Reference for a preliminary ruling by the High Court of                constitute State aid for the purposes of Article 92 of
Justice (England and Wales), Queen's Bench Division, by                the EC Treaty?
order of that court, of 25 August 1998, in the case of
The Queen against Ministry of Agriculture, Fisheries and
       Food, ex parte: J. H. Cooke and Sons (a firm)                   Is Article 92 of the EC Treaty to be interpreted as
                       (Case C-372/98)                                 meaning that the underlying concept of aid also
                                                                       covers national rules for the benefit of the recipient of
                        (98/C 397/32)                                  the payment, under which the costs entailed are not
                                                                       met, either directly or indirectly, from the public
                                                                       budget but are borne by individual undertakings in a
Reference has been made to the Court of Justice of the                 sector, which have a statutory obligation to purchase
European Communities by an order of the High Court of                  at fixed minimum prices, and which are precluded by
Justice (England and Wales), Queen's Bench Division, of                law and circumstance from passing those costs on to
25 August 1998, which was received at the Court Registry               the final consumer?


title: Case T-272/99: Action brought on 3 November 1999 by Territorio Histórico de Bizkaia, Bizkaiko Foru Aldundia — Diputación Foral de Bizkaia against Commission of the European Communities

text:
C 47/30                 EN                    Official Journal of the European Communities                                       19.2.2000
The applicant claims that the Court of First Instance should:            Action brought on 3 November 1999 by Territorio
                                                                         Histórico de Alava, Arabako Foru Aldundia — Diputación
                                                                         Foral de Alava against Commission of the European
— Annul the Commission decision of 14 July 1999 in so far                                             Communities
    as it classifies as State aid within the meaning of Article 87
    EC the tax credit provided for in Norma Foral de Gipuzkoa
    (Gipuzkoa Regional Law) No 7/1997 of 22 December                                                (Case T-271/99)
    1997;
                                                                                (2000/C 47/52)
— Order the Commission to pay the costs in their entirety.
                                                                                (Language of the case: Spanish)
                                                                         An action against the Commission of the European Communi-
Contentions and principal arguments adduced in support
                                                                         ties was brought before the Court of Justice on 3 November
                                                                         1999 by Territorio Histórico de Alava, Arabako Foru Aldundia
                                                                         — Diputación Foral de Alava, Alava (Spain), represented by
In support of its claims, the applicant submits that, in the             Antonio Creus Carreras and Begoña Uriarte Valiente, of
contested decision, the Commission:                                      the Barcelona and Madrid Bars respectively, of Cuatrecasas
                                                                         Abogados, 60 Av. de Cortenbergh, Brussels.
— misinterprets the concept of State aid appearing in
    Article 87(1) EC in taking the view that the tax credit              The applicant claims that the Court of First Instance should:
    provided for in the abovementioned Norma Foral de
    Gipuzkoa constitutes a measure of a selective nature and             — Annul the Commission decision of 14 July 1999 in so far
    therefore State aid; in the applicant’s view, the tax credit              as it classifies as State aid within the meaning of Article 87
    constitutes a measure of a general nature since it applies to             EC the tax credit provided for in Norma Foral de Alava
    all economic operators alike, provided that they meet the                 (Alava Regional Law) No 22/1994 of 20 December 1994,
    requirements laid down in that instrument, which are                      as amended;
    objective and non-discriminatory; even if the measure in
    question were in some degree selective, it would be                  — Order the Commission to pay the costs in their entirety.
    justified by the nature of the system, since the latter is
    non-discriminatory in its scope, being based on objective
    and horizontal conditions or criteria, and it also contributes       Contentions and principal arguments adduced in support
    to the efficiency of the tax system of which it forms part;
                                                                         The pleas in law and main arguments are identical with those
— misinterprets Article 87 EC in considering that State aid              used in T-269/99.
    exists where there has been no proof of distortion of
    competition or of any impact on trade between Member
    States, as required by that provision;
— mistakenly takes the view that the Spanish authorities
    infringed the obligation of notification laid down in
    Article 88(3) EC;
                                                                         Action brought on 3 November 1999 by Territorio His-
                                                                         tórico de Bizkaia, Bizkaiko Foru Aldundia — Diputación
— has misused its powers by using the State aid procedure                Foral de Bizkaia against Commission of the European
    instead of the procedure provided for by the Community                                            Communities
    legislature (tax harmonisation), under which its powers are
    much more limited since they are shared with the Council
                                                                                (Case T-272/99)
    of the European Union;
                                                                                (2000/C 47/53)
— has failed to fulfil the obligation to state reasons since it
    has not clarified the points of fact and of law which
    prompted it to classify the contested tax measure as State
                                                                                (Language of the case: Spanish)
    aid, within the meaning of Article 87 EC.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice on 3 November
                                                                         1999 by Territorio Histórico de Bizkaia, Bizkaiko Foru Aldun-
                                                                         dia — Diputación Foral de Bizkaia (Spain), represented by
 ---pagebreak--- 19.2.2000                EN                     Official Journal of the European Communities                                        C 47/31
Antonio Creus Carreras and Begoña Uriarte Valiente, of                    of an ‘undertaking’. Each service station or, as the case may be,
the Barcelona and Madrid Bars respectively, of Cuatrecasas                 each legal entity operating a service station should be regarded
Abogados, 60 Av. de Cortenbergh, Brussels.                                 as an undertaking, with the result that the aid granted to each
                                                                           applicant therefor or, as the case may be, to each service
                                                                           station in the present case — which does not exceed the
The applicant claims that the Court of First Instance should:              amount specified in the de minimis rule — falls outside the
                                                                           scope of Article 87(1) EC. Consequently, that provision cannot
— Annul the Commission decision of 14 July 1999 in so far                  be applicable, since the aid in question serves in any event to
     as it classifies as State aid within the meaning of Article 87        maintain competition.
     EC the tax credit provided for in Norma Foral de Bizkaia
     (Biscay Regional Law) No 7/1996 of 26 December 1996
     and the subsequent extension thereof;
                                                                           (1) OJ L 280 of 30.10.1999, p. 87.
— Order the Commission to pay the costs in their entirety.
Contentions and principal arguments adduced in support
The applicant’s contentions are the same as those put forward
in Case T-269/99.
                                                                           Actions brought on 27 October 1999 by De Haan
                                                                           Minerale Oliën B.V. and Others against the Commission
                                                                                of the European Communities
                                                                                (Cases T-279/99 to T-284/99)
                                                                                (2000/C 47/55)
Actions brought on 27 October 1999 by Autoservice J.
van Deursen B.V. and Others against the Commission of
                    the European Communities
                                                                                (Language of the case: Dutch)
                   (Cases T-273/99 to T-278/99)
                                                                           Actions against the Commission of the European Communities
                                                                           were brought before the Court of First Instance of the European
                            (2000/C 47/54)                                 Communities on 27 October 1999 by De Haan Minerale Oliën
                                                                           B.V., of Alblasserdam (Netherlands), and others, represented
                                                                           by M.J.C. Deriks, of the Rotterdam Bar.
                      (Language of the case: Dutch)
                                                                           The applicants claim that the Court should:
Actions against the Commission of the European Communities
were brought before the Court of First Instance of the European            (a) annul the Commission’s decision (C(1999) 2539 final) (1)
Communities on 27 October 1999 by Autoservice J. van                            of 20 July 1999 concerning State aid granted by the
Deursen B.V., of Budel-Schoot (Netherlands), and others,                        Netherlands to 633 service stations in the region bordering
represented by M.J.C. Deriks, of the Rotterdam Bar.                             Germany;
The applicants claim that the Court should:                                (b) order the Commission to pay the costs.
(a) annul the Commission’s decision (C(1999) 2539 final) (1)
     of 20 July 1999 concerning State aid granted by the                   Pleas in law and main arguments
     Netherlands to 633 service stations in the region bordering
     Germany;
                                                                           The pleas in law and main arguments are the same as in Cases
(b) order the Commission to pay the costs.                                 T-273/99 to T-278/99.
Pleas in law and main arguments                                            (1) OJ L 280 of 30.10.1999, p. 87.
This case corresponds to Case T-210/99. The applicants claim
inter alia that the Commission has misinterpreted the concept


title: Case T-122/09: Action brought on 23 March 2009 — Zhejiang Xinshiji Foods et Hubei Xinshiji Foods v Council

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/44

         Action brought on 23 March 2009 — Zhejiang Xinshiji Foods et Hubei Xinshiji Foods v Council
   (Case T-122/09)
   2009/C 141/95
   Language of the case: English

      Parties

      Applicants: Zhejiang Xinshiji Foods Co. Ltd, Hubei Xinshiji Foods Co. Ltd (represented by: F. Carlin, Barrister, A. MacGregor, Solicitor, N. Niejahr and Q. Azau, lawyers)

      Defendant: Council of the European Union

      Form of order sought

               —

               annul the Regulation to the extent that it imposes anti-dumping duties on products produced and exported by the applicants;

               —

               order the Council of the European Union to pay its own costs and the applicants’ costs in connection with these proceedings.

      Pleas in law and main arguments

   By means of their application, the applicants seek the annulment, pursuant to Article 230 EC, of Council Regulation (EC) No 1355/2008 of 18 December 2008 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain prepared or preserved citrus fruits (namely mandarins, etc.) originating in the People’s Republic of China (1) (‘the Definitive Regulation’), insofar as it concerns the applicants.
   The applicants submit that the Definitive Regulation should be annulled insofar as it concerns them because it violates the applicants’ rights of defence, the duty to state reasons and breaches the principle of sound administration.
   The applicants claim that their rights of defence were violated,

               (i)

               because of the failure to provide timely disclosure of essential facts, as required by Article 20(4) of Council Regulation (EC) 384/96 (2), as well as the failure to provide adequate explanations as to inconsistencies in the Community industry’s sales volumes, with the effect that the applicants could not effectively make their views known or defend their interest in a meaningful way.

               (ii)

               in the context of the determination of injury where the Commission failed:

                           (a)

                           to answer the applicants’ questions surrounding data inconsistencies in the Community industry’s sales volumes in time for the applicants’ to make known their views before the Council adopted the Definitive Regulation;

                           (b)

                           to provide the applicants with the requested explanations in relation to the refusal to take due account of the impact of the prices of raw materials;

                           (c)

                           to explain how the Commission had calculated the 2 % uplift for import costs and importer’s margin, and

               (iii)

               by a manifest error of assessment in failing to take into account significant inconsistencies in relation to the Community industry’s sales data in determining injury.

         The applicants submit that the Definitive Regulation also violates Article 253 EC by failing to state the reasons on which it was based regarding an essential element of fact, namely the 2 % uplift for import costs and importer’s margin, which is relevant to the findings made in the Definitive Regulation that led to the imposition of the definitive anti-dumping duties applicable to the applicants.
   Finally, the applicants contend that, in view of the representations made by the applicants throughout the procedure, pointing to the various failures of the Commission to properly explain the factual basis on which the Commission was proposing to adopt definitive anti-dumping measures and to properly safeguard the applicants’ rights of defence, the Council breached the principle of sound administration when adopting the Definitive Regulation as proposed by the Commission.

      (1)  OJ 2008 L 350, p. 35

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1)


title: Case C-103/01: Action brought on 2 March 2001 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 118/20                EN                    Official Journal of the European Communities                                        21.4.2001
Action brought on 1 March 2001 by Italian Republic                       3.    The contested decision is also invalid on the following
    against Commission of the European Communities                             grounds:
                                                                               failure to define the relevant market; misuse of powers
                          (Case C-102/01)                                      by misrepresentation of the facts; infringement of the
                                                                               directive on postal services; infringement and erroneous
                                                                               application of Articles 82 and 86 of the Treaty; misuse of
                         (2001/C 118/32)                                       powers in that the decision is general and indeterminate.
An action against the Commission of the European Communi-                (1) Directive 97/67/EC of the European Parliament and of the Council
ties was brought before the Court of Justice of the European                 of 15 December 1997 on common rules for the development of
Communities on 1 March 2001 by the Italian Republic,                         the internal market of Community postal services and the
represented by Umberto Leanza, acting as Agent, assisted by                  improvement of quality of service (OJ 1998 L 15, p. 14).
Ivo M. Braguglia and Francesca Quadri, avvocati dello Stato.
The applicant claims that the Court should:
—     annul the decision of the Commission of the European
      Communities of 21 December 2000, notified to the
      Italian Government on 22 December 2000;
—     order the Commission to pay the costs.
                                                                         Action brought on 2 March 2001 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                of Germany
Pleas in law and main arguments
                                                                                (Case C-103/01)
1.    The Italian Government claims that the Commission
      committed a manifest error when choosing the proper
      legal basis for assessing whether the national rules at issue
      were compatible with Community law and that that                                           (2001/C 118/33)
      erroneous legal basis has led in the present case to a
      manifest breach of essential procedural requirements and
      ‘détournement de procédure’ (abuse of process), inasmuch           An action against the Federal Republic of Germany was
      as a proceeding pursuant to Article 86(3) of the Treaty            brought before the Court of Justice of the European Communi-
      was instituted and a decision adopted, instead of infringe-        ties on 2 March 2001 by the Commission of the European
      ment proceedings under Article 226 of the Treaty for               Communities, represented by Josef Christian Schieferer, of its
      failure to implement correctly Directive 97/76/EC (1) on           Legal Service, with an address for service in Luxembourg at
      postal services.                                                   the office of Carlos Gómez de la Cruz, of its Legal Service,
                                                                         Wagner Centre C 254, Kirchberg.
      By acting in that way, the Commission has also infringed
      Article 86(3) of the Treaty, which is not applicable in the
      present case, as well as Article 226 of the Treaty for             The applicant claims that the Court should:
      failure to apply the latter.
                                                                         (1) declare that, by including in the legislation applicable
      The decision does not contain the least statement of                     to individual Länder certain additional requirements
      reasons which led the Commission to follow the pro-                      concerning personal protective equipment for fire brig-
      cedure under Article 86, so that it is vitiated on the                   ades which corresponds to the requirements of Directive
      ground of inadequate statement of reasons.                               89/686/EEC (1) and bears the EC mark, the Federal
                                                                               Republic of Germany has infringed Articles 1 and 4 of
                                                                               that directive;
2.    The decision is vitiated for breach of the rights of the
      defence in that the final decision is vitiated with regard to
      the letter of formal notice.                                       (2) order the Federal Republic of Germany to pay the costs.
 ---pagebreak--- 21.4.2001              EN                    Official Journal of the European Communities                                        C 118/21
Pleas in law and main arguments                                         (3) If the first question is to be answered in the affirmative
                                                                              and the second in the negative, must the measures
                                                                              requested in these proceedings be regarded as provisional
In the Commission’s view, the term ‘armed forces or [those                    or protective measures within the meaning of Article 24
responsible for] the maintenance of law and order’, to whose                  of the Brussels Convention?
protective equipment the directive, pursuant to the second
indent of Article 1(4) and Annex I thereof, is not applicable, is
a concept of Community law, and is not to be defined by
reference to the legislation of the Member States. Fire brigades
do not form part of the ‘armed forces or [those responsible
for] the maintenance of law and order’ within the meaning of
the directive, even if, in a Member State, they are under the
control of the Minister of Defence or, as in Germany, that of a         Action brought on 6 March 2001 by the Commission of
Land authority.                                                         the European Communities against the Grand Duchy of
                                                                                Luxembourg
                                                                                (Case C-107/01)
(1) OJ L 399, 30.12.1989, p. 18.
                                                                                (2001/C 118/35)
                                                                        An action against the Grand Duchy of Luxembourg was
                                                                        brought before the Court of Justice of the European Communi-
                                                                        ties on 6 March 2001 by the Commission of the European
                                                                        Communities, represented by M. Wolfcarius, acting as Agent,
                                                                        with an address for service in Luxembourg.
Reference for a preliminary ruling by the Hoge Raad der                 The applicant claims that the Court should:
Nederlanden by order of 2 March 2001 in the case of
                 A.T. van der Plas en W.H. Guis                         —     Declare that, by failing to adopt and bring into force
                                                                              within the prescribed period the laws, regulations and
                         (Case C-105/01)                                      administrative provisions necessary to comply with
                                                                              Council Directive 98/76/EC of 1 October 1998 amending
                                                                              Directive 96/26/EC on admission to the occupation of
                         (2001/C 118/34)                                      road haulage operator and road passenger transport
                                                                              operator and mutual recognition of diplomas, certificates
                                                                              and other evidence of formal qualifications intended to
Reference has been made to the Court of Justice of the                        facilitate for these operators the right to freedom of
European Communities by order of 2 March 2001 by the                          establishment in national and international transport
Hoge Raad der Nederlanden (Supreme Court of the Nether-                       operations, (1) or, in any event, by failing to communicate
lands), which was received at the Court Registry on 5 March                   such provisions to the Commission, the Grand Duchy of
2001, for a preliminary ruling in the case of A.T. van der Plas               Luxembourg has failed to fulfil its obligations under that
en W.H. Guis on the following questions:                                      directive; and
(1) On a proper construction of the first part of, and of               —     Order the Grand Duchy of Luxembourg to pay the costs.
      paragraph (2) of, Article 16, do the abovementioned
      claims in 1(a) to (e), brought against a director, resident
      in the Netherlands, of a company established in the               Pleas in law and main arguments
      Netherlands which holds the shares in a company
      established in France, in order to obtain his collaboration       The mandatory nature of the provisions of the third paragraph
      in the calling of a general meeting and to effect certain         of Article 249 and the first paragraph of Article 10 of the EC
      decisions concerning the company established in France,           Treaty requires Member States to adopt the measures necessary
      relate to what is laid down in the abovementioned                 to transpose directives addressed to them into their domestic
      provisions of the Convention, on the understanding that           law before the expiry of the period prescribed for doing so and
      the French court must be considered to have exclusive             forthwith to inform the Commission thereof. That period,
      jurisdiction as to those claims?                                  which is laid down in Article 2(1) of Directive 98/76/EC,
                                                                        expired on 1 October 1999 without the Grand Duchy
(2) If the answer to the first question is to be in the                 of Luxembourg having brought into force the necessary
      affirmative, does the jurisdiction of a court, on the basis       provisions.
      of the first part of, and paragraph (2) of, Article 16 of
      the Brussels Convention, preclude a court of another              (1) OJ 1998 L 227, p. 17.
      contracting state from having jurisdiction on the basis of
      Article 24 of the Brussels Convention to adopt provisional
      or protective measures provided for by law?


               3.9.2005

               EN

               Official Journal of the European Union

               C 217/62

         Removal from the Register of Case T-53/97 (1)

   (2005/C 217/123)

      (Language of the case: Dutch)

   By order of 16 June 2005, the President of the Fifth Chamber of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-53/97, B.J.G. Oude Kotte v Council of the European Union and Commission of the European Communities.

      (1)  OJ C 142 of 10.5.1997.


title: Case C-162/99: Action brought on 30 April 1999 by the Commission of the European Communities against the Italian Republic

text:
17.7.1999              EN                     Official Journal of the European Communities                                       C 204/27
— whether Regulation (EC) No 343/94, requiring Italy to                       — maintaining in force Article 15, Title IV of Law No 409
     distil 12 150 000 hl, is unlawful for infringement of                         of 24 July 1985, which refers to Article 1 of Law
     Article 39(11) (b) of Regulation (EEC) No 822/87 (as                          No 1398 of 14 December 1964, having the effect that
     amended by Regulation (EEC) No 1972/87) for the reasons                       only Italian citizens may remain registered in case of
     set out above;                                                                transfer of residence to another Member State.
— in the ... event that Article 39(11)(b) of Regulation (EEC)            2. Order the Italian Republic to pay the costs.
     No 822/87 (as amended by Regulation (EEC) No 1972/87)
     is to be interpreted as authorising such a system of
     calculation [used in Regulation (EEC) No 343/94] whether            Pleas in law and main arguments
     Article 39(11)(b) is unlawful for infringement of the prin-
     ciple of reasonableness, manifest error and inconsistency           The residence obligation may give rise to discrimination in
     in relation to the object pursued, and for infringement of          relation to medical practitioners established in other Member
     the prohibition on discrimination under Article 40 of the           States, since it can be fulfilled more easily by Italian citizens.
     Treaty;                                                             That obligation makes exercise of the profession of dentist in
                                                                         Italy impossible for a practitioner established in another
— whether Article 39(3) (4) and (11) of Regulation (EEC)                 Member State, even close to the border. By contrast, a dentist
     No 822/87, as amended by Regulation (EC) 1566/93, and               established in Italy — especially in the border area — may
     Regulation (EEC) No 343/94 which implements the former              open a branch surgery in another Member State without being
     measures, are unlawful for infringement of the principle of         subject to any condition of residence in that State. As a
     reasonableness, manifest error, misuse of powers and                consequence, the Italian rules apply more strictly to dentists of
     infringement of the principle of proportionality.                   other Member States than to those established in Italian
                                                                         territory.
(1) Commission Regulation of 15 February 1994 (OJ L 44 of
    17.2.1994, p. 9).                                                    Obligatory cancellation from the register in the event of
(2) Council Regulation of 16 March 1987 (OJ L 84 of 27.3.1987,           residence being transferred abroad has the effect of making it
    p. 26).                                                              impossible for non-residents to open a dental surgery in Italian
(3) OJ L 184 of 3.7.1987, p. 26.                                         territory. Such a measure is discriminatory in that it does not
(4) Referred to in the third indent of Article 39(3) of Regulation       prohibit dentists established and resident in Italy from opening
    No 822/87.                                                           a branch surgery in another Member State on condition that
                                                                         they remain resident in the practising district to which they
                                                                         belong in Italy.
Action brought on 30 April 1999 by the Commission of
  the European Communities against the Italian Republic                  Reference for a preliminary ruling by the Amtsgericht
                                                                         Tauberbischofsheim by order of 13 April 1999 in the
                         (Case C-162/99)                                 proceedings concerning the imposition of a fine on
                                                                                Portugaia Construcoes Lda
                         (1999/C 204/49)
                                                                                (Case C-164/99)
An action against the Italian Republic was brought before the                                      (1999/C 204/50)
Court of Justice of the European Communities on 30 April
1999 by the Commission of the European Communities,
represented by Francesco Ruggeri Laderchi and Bernard Mon-               Reference has been made to the Court of Justice of the
gin, of its Legal Service, acting as Agents, with an address for         European Communities by order of 13 April 1999 from the
service in Luxembourg at the offices of Carlos Gómez de la              Amtsgericht Tauberbischofsheim (Local Court, Tauber-
Cruz, Wagner Centre, Kirchberg.                                          bischofsheim), which was received at the Court Registry on
                                                                         4 May 1999, for a preliminary ruling in the proceedings
                                                                         concerning the imposition of a fine on Portugaia Construcoes
The applicant claims that the Court should:                              Lda on the following questions:
1. Declare that the Italian Republic has failed to fulfil its            1. Is an interpretation of Directive 96/71/EC of the European
     obligations under Articles 39 and 43 (formerly Articles 48               Parliament and of the Council of 16 December 1996
     and 52) of the EC Treaty by:                                             concerning the posting of workers in the framework of the
                                                                              provision of services (OJ 1997 L 18, p. 1) or, if that
     — allowing the Legislative Decree of the Provisional                     directive is not applicable, an interpretation of Article 59
         Head of State No 233 of 13 September 1946, despite                   et seq. of the EC Treaty, under which overriding require-
         amendment by Article 9 of Law No 362 of 8 Novem-                     ments of public interest capable of justifying a restriction
         ber 1991, to remain in force in such a way as leave                  on the freedom to provide services in cases involving the
         dentists practising in Italy still subject to a de facto             posting of employees can lie not only in the social
         residence obligation, and                                            protection of the employees posted but also in the


title: Judgment of the Court of First Instance 29 January 2002 in Cases T-160/98: Firma Léon Van Parys NV and Pacific Fruit Company NV v Commission of the European Communities (Bananas — Common organisation of the markets — Action for annulment — Admissibility — Reduction in reference quantities)

text:
C 109/42                EN                      Official Journal of the European Communities                                         4.5.2002
                                                          COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 6 December 2001
                                                                                29 January 2002
in Case T-43/98: Emesa Sugar (Free Zone) NV v Council
                    of the European Union (1)
                                                                           in Cases T-160/98: Firma Léon Van Parys NV and Pacific
                                                                           Fruit Company NV v Commission of the European Com-
(Association arrangements for overseas countries and terri-                                            munities (1)
tories — Decision 97/803/EC — Sugar imports — Action
for annulment — Action for compensation — Admissibility
— Irreversible nature of the experience acquired — Principle
                                                                           (Bananas — Common organisation of the markets — Action
              of proportionality — Legal certainty)
                                                                           for annulment — Admissibility — Reduction in reference
                                                                                quantities)
                          (2002/C 109/83)
                                                                                (2002/C 109/84)
                    (Language of the case: Dutch)
                                                                                (Language of the case: Dutch)
In Case T-43/98: Emesa Sugar (Free Zone) NV, established in
Oranjestad (Aruba), represented by G. van der Wal, lawyer,
with an address for service in Luxembourg, against Council of
the European Union (Agents: J. Huber and G. Houttuin),
supported by Commission of the European Communities
(Agent: T. van Rijn), Kingdom of Spain (Agents: M. López-                 In Case T-160/98, Firma Léon Van Parys NV, established in
Monis Gallego and R. Silva de Lapuerta) and French Republic                Antwerp (Belgium), Pacific Fruit Company NV, established in
(Agent: K. Rispal-Bellanger) — application for annulment of                Antwerp, represented by P. Vlaemminck, L. Van den Hende
Council Decision 97/803/EC of 24 November 1997 amending                    and J. Holmens, lawyers, with an address for service in
at mid-term Decision 91/482/EEC on the association of the                  Luxembourg, v Commission of the European Communities
overseas countries and territories with the European Economic              (agents: H. van Vliet and L. Visaggio): Application for the
Community (OJ 1997 L 329, p. 50), and an application for                   annulment of a decision allegedly taken by the Commission
compensation — the Court of First Instance (Third Chamber),                between 12 March 1998 and 5 August 1998 reducing the
composed of J. Azizi, President, K. Lenaerts and M. Jaeger,                quantity of bananas marketed by the applicants in 1996 and
Judges; J. Plingers, Administrator, gave a judgment on                     taken into account in determining their reference quantity for
6 December 2001, in which it:                                              1998, Court of First Instance of the European Communities
                                                                           (Fifth Chamber), composed of: P. Lindh, President, R. Garcı́a-
                                                                           Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has given
                                                                           a judgment on 29 January 2002, in which it:
1.    Dismisses the action;
2.    Orders the applicant to bear its own costs and in addition to        1.    Declares the action inadmissible;
      pay the costs incurred by the Council, including those relating
      to the proceedings for interim relief;
                                                                           2.    Orders the applicants to bear their own costs and those of the
3.    Orders the interveners to bear their own costs.                            Commission.
(1) OJ C 151 of 16. 5. 1998.                                               (1) OJ C 378 of 5.12.1998.


title: Case T-358/02: Action brought on 5 December 2002 by Deutsche Post AG and DHL International S.r.l. against the Commission of the European Communities

text:
C 44/32                 EN                         Official Journal of the European Union                                         22.2.2003
question to be considered and that question must relate to the             —     order the defendant to pay the costs.
quality, safety or efficacy of the product. The applicant claims
that these conditions were not satisfied.
The applicant furthermore claims that the contested decision
infringed essential procedural requirements. According to the
applicant, the procedure breached the applicant’s rights of                Pleas in law and main arguments
defence and its right to be heard. The applicant was not given
the opportunity to comment on the key amendments to the
Capoten Summary of Product Characteristics. The procedure
also infringed the timetable provided for in Article 32 of                 In the applicants’ submission, it is apparent from the contested
Directive 12001/83 and in the Commission’s Notice to                       decision that Poste Italiane SpA was continuously in deficit in
Applicants (1998 version).                                                 the postal services sector from 1994 to 1999 and that it
                                                                           received State resources which served to offset the deficits. In
                                                                           Article 2 of the decision, the Commission decided that that
The applicant invokes also the infringement of rules of                    State subsidy to Poste Italiane SpA did not constitute State aid
Community law, like the principle of equal treatment, the duty             under Article 87(1) EC.
to give reasons, the principle of legitimate expectations and
the principle of proportionality.
Finally, the applicant claims that the contested decision is               The applicants submit that, so far as concerns the offsetting of
vitiated by manifest errors of assessment.                                 losses of those postal services which, although forming part of
                                                                           the universal service, have been opened up to competition, the
                                                                           decision is incompatible with Article 87(1) EC as interpreted
( 1) Council Directive 65/65/EEC of 26 January 1965 on the approxi-        in the Commission decision of 19 June 2002 (2). By that
     mation of provisions laid down by Law, Regulation or Adminis-         decision the Commission established that the use of State
     trative Action relating to proprietary medicinal products (OJ         resources to offset losses recorded by a postal undertaking in
     1965, p. 369).                                                        the sector of postal services that form part of the universal
( 2) Directive 2001/83/EC of the European Parliament and of the            service but are opened up to competition infringes
     Council of 6 November 2001 on the Community code relating to          Article 87(1) of the Treaty as a cross-subsidy not capable of
     medicinal products for human use (OJ L 311, p. 67).                   being approved where the losses are caused by rates of charges
                                                                           which do not cover costs and which the postal undertaking is
                                                                           not required to apply by a State measure.
                                                                           The applicants contend that the decision is all the less
Action brought on 5 December 2002 by Deutsche Post                         compatible with Article 87(1) EC in so far as it relates to loss-
AG and DHL International S.r.l. against the Commission                     making postal services which do not form part of the universal
                  of the European Communities                              service and have been opened up to competition for a long
                                                                           time. Since the Italian postal operator has been recording only
                                                                           losses for 50 years and those losses can therefore only have
                           (Case T-358/02)                                 been covered by State resources, the Commission should not
                                                                           have ‘neglected’ the offsetting in respect of those postal services
                           (2003/C 44/62)                                  from State resources but would have been obliged in that
                                                                           respect too to examine whether there was a cross-subsidy
                                                                           incompatible with Article 87(1) EC.
                    (Language of the Case: German)
An action against the Commission of the European Communi-                  The applicants further submit that no reason is stated as to
ties was brought before the Court of First Instance of the                 why the Commission in the contested decision, in contrast to
European Communities on 5 December 2002 by Deutsche                        its decision of 19 June 2002, recognised the cross-subsidy as
Post AG, established in Bonn (Germany), and DHL Inter-                     involving a net extra cost which could be offset in the ‘general
national S.r.l., established in Rozzano (Italy), represented by            economic interest’. At the same time, therefore, there is an
J. Sedemund and T. Lübbig, lawyers.                                        infringement of the duty to state reasons under Article 253
                                                                           EC.
The applicants claim that the Court should:
—      annul Commission Decision 2002/782/EC of 12 March                   Finally, the decision infringes the general prohibition of
       2002 on the aid granted by Italy to Poste Italiane SpA (1);         discrimination under Article 12 EC, since the Commission has
 ---pagebreak--- 22.2.2003                EN                         Official Journal of the European Union                                          C 44/33
accorded the Italian postal operator preferential treatment vis-            The applicant’s other pleas in law and arguments are the same
à-vis the applicants, which are in competition with it in the               as those set out in Case T-351/02.
very sector of postal services which have been opened up to
competition.
( 1) OJ L 282, 19.10.2002, p. 29.
( 2) Commission Decision on measures implemented by the Federal
     Republic of Germany for Deutsche Post AG (OJ L 247, 14.9.2002,
     p. 27).
                                                                            Action brought on 5 December 2002 by Muswellbrook
                                                                            Limited against the Office for Harmonisation in the
                                                                                Internal Market (OHIM)
Action brought on 5 December 2002 by Deutsche Bahn
AG against the Commission of the European Communi-                                                  (Case T-362/02)
                                  ties
                                                                                (2003/C 44/64)
                            (Case T-361/02)
                            (2003/C 44/63)                                                    (Language of the case: Spanish)
                    (Language of the case: German)
                                                                            An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                   Market (OHIM) was brought before the Court of First Instance
ties was brought before the Court of First Instance of the                  of the European Communities on 5 December 2002 by
European Communities on 5 December 2002 by Deutsche                         Muswellbrook Limited, established in Dublin (Ireland), rep-
Bahn AG, Berlin, Germany, represented by M. Schütte, lawyer,                resented by J. Casulá Oliver, lawyer.
with an address for service in Luxembourg.
The applicant claims that the Court should:                                 The applicant claims that the Court should:
—      find that the Commission infringed its obligations under
       Article 87 and Article 88(1) EC in failing to adopt a                —    declare incompatible with Regulation (EC) No 40/94 on
       decision on the matters submitted to it by the applicant                  the Community trade mark, in particular Article 15(2)(a)
       in its complaint of 5 July 2002, and in any event, in                     and/or Article 42(2) and (3) thereof, the decision of the
       failing to initiate an investigation of State aid;                        First Board of Appeal of the OHIM of 30 September
                                                                                2002 in case No R 16/2000-1, inasmuch as it declares
—      order the Commission to pay the costs.                                    that the opponent has failed to prove genuine use in the
                                                                                Community of the Spanish trade mark No 88222 to
                                                                                distinguish ready-to-wear and other items of clothing in
                                                                                Class 25 during the five years preceding the publication
Pleas in law and main arguments                                                  of the application for a Community trade mark;
The action has the same origin as that in Case T-351/02                     —    annul that decision in its entirety;
(Deutsche Bahn v Commission).
                                                                            —    agree to vary that decision so as to declare that an
                                                                                assessment of and a ruling on the merits of the opposition
In the present action the applicant submits that the Com-                        to registration of Community trade mark No 278028 is
mission infringed its obligations under Article 87 and
                                                                                appropriate, to which end the Court’s judgment should
Article 88(1) EC because, despite having been called upon to                     declare that Community trade mark No 278028 is
act in accordance with paragraphs 2 and 3 of Article 232 EC,                     refused, or, in the alternative, refer the case back to the
it failed to investigate the compatibility of Paragraph 4(1),
                                                                                First Board of Appeal of the OHIM;
Head 3(a), of the German Law on the taxation on mineral oil
with the State-aid provisions of the EC Treaty and to adopt a
binding decision in that regard. No such decision can be                    —    order the defendant and, where appropriate, the inter-
discerned in the Commission’s letter of 21 September 2002                        vener to pay all the costs of the proceedings and those
and the Commission’s failure to act is not justified by objective                incurred at the administrative stages of the opposition
reasons.                                                                         and appeal proceedings.


title: Judgment of the Court (Second Chamber) 24 January 2002 in Case C-466/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Environment — Waste — Directives 75/442/EEC, 91/689/EEC and 94/62/EC — Waste management plans)

text:
C 84/14                 EN                      Official Journal of the European Communities                                              6.4.2002
     —     Articles 6, 7 and 23 of Provincial Law No 35 of the                   —     Article 3 of Presidential Decree No 7 of 15 January
           Autonomous Province of Trento of 2 September                                1972;
           1978,
                                                                                —     Article 2(c) and (d), Article 3, first paragraph, (b) and (c),
                                                                                and Article 5, first paragraph, (a), of Regional Law
the Italian Republic has failed to fulfil its obligations under                        No 12 of Liguria of 3 November 1972;
Articles 59 to 61 and 63 to 66 of the Treaty and under
Articles 52 and 54 of the EC Treaty (now, after amendment,                       —     Article 8, paragraph 1(d), of Regional Law No 35 of
Articles 43 EC and 44 EC), Article 55 of the EC Treaty (now                            Veneto of 2 August 1988;
Article 45 EC), Articles 56 and 57 of the EC Treaty (now, after
amendment, Articles 46 EC and 47 EC) and Article 58 of the                       —     Article 8, second paragraph, and Article 11, first
EC Treaty (now Article 48 EC),                                                         paragraph, of Regional Law No 43 of Emilia-Romagna
                                                                                of 26 May 1980, and
THE COURT (Fifth Chamber), composed of: P. Jann, President
of the Chamber, S. von Bahr (Rapporteur), A. La Pergola,                         —     Articles 5, 13, 14 and 15, first paragraph, (a), of
L. Sevón and M. Wathelet, Judges, Advocate General: S. Alber,                         Regional Law No 10 of Friuli Veneto Giulia of 23 Febru-
Registrar: R. Grass, has given a judgment on 15 January 2002,                          ary 1981,
in which it:
                                                                                the Italian Republic has failed to fulfil its obligations under
                                                                                Articles 59 to 61 and 63 to 66 of the Treaty and under
1.   Declares that by retaining the following provisions:                        Articles 52 and 54 of the EC Treaty (now, after amendment,
                                                                                Articles 43 EC and 44 EC), Article 55 of the EC Treaty (now
                                                                                Article 45 EC), Articles 56 and 57 of the EC Treaty (now,
     —     Article 2, first paragraph, and Article 7 of Royal Decree             after amendment, Articles 46 EC and 47 EC) and Article 58
           No 454 of 29 January 1934;                                            of the EC Treaty (now Article 48 EC);
     —     Article 2, first paragraph, of Presidential Decree No 7 of      3.    Dismisses the remainder of the action;
           15 January 1972;
                                                                           4.    Orders the Italian Republic to pay the costs.
     —     Article 2, paragraphs 4, 6 and 7, of Presidential Decree
                                                                           (1) OJ C 47 of 19.2.2000.
           No 390 of 18 April 1994;
     —     Article 4 of Regional Law No 40 of Liguria of 14 July
           1978;
     —     Article 6, paragraph 1(e), (f) and (h), and Article 7 of                         JUDGMENT OF THE COURT
           Regional Law No 35 of Veneto of 2 August 1988;
                                                                                (Second Chamber)
     —     Article 4, Article 5, sixth paragraph, (a) and (c), Article 6,
                                                                                24 January 2002
           first paragraph, Article 8, first and second paragraphs,
           and Article 16, first paragraph, of Regional Law No 43
           of Emilia-Romagna of 26 May 1980;                               in Case C-466/99: Commission of the European Communi-
                                                                                ties v Italian Republic (1)
     —     Article 4, paragraph 1(c) and paragraph 2, and                  (Failure by a Member State to fulfil its obligations —
           Article 15, paragraph 3, of Regional Law No 45 of               Environment — Waste — Directives 75/442/EEC,
           Lombardy of 29 April 1980;                                        91/689/EEC and 94/62/EC — Waste management plans)
     —     Articles 3, 4 and 8, last paragraph, of Regional Law                                        (2002/C 84/22)
           No 10 of Friuli Veneto Giulia of 23 February 1981, and
                                                                                (Language of the case: Italian)
     —     Articles 3, 5 and 12 of Provincial Law No 35 of the
           Autonomous Province of Trento of 2 September 1978,              (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
     the Italian Republic has failed to fulfil its obligations under
     Article 59 of the EC Treaty (now, after amendment, Article 49
                                                                           In Case C-466/99, Commission of the European Communities
     EC), Article 60 of the EC Treaty (now Article 50 EC),
                                                                           (agents: L. Ström and G. Bisogni) v Italian Republic (agent:
     Articles 61, 63 and 64 of the EC Treaty (now, after
                                                                           U. Leanza, assisted by P. G. Ferri): Application for a declaration
     amendment, Articles 51 EC, 52 EC and 53 EC) and Articles 65
                                                                           that, by not forwarding to the Commission information
     and 66 of the EC Treaty (now Articles 54 EC and 55 EC);
                                                                           concerning plans for the management and disposal of waste,
                                                                           hazardous waste, packaging and packaging waste, the Italian
2.   Declares that by retaining the following provisions:                  Republic has failed to fulfil its obligations under Article 7 of
 ---pagebreak--- 6.4.2002                 EN                     Official Journal of the European Communities                                            C 84/15
Council Directive 75/442/EEC of 15 July 1975 on waste (OJ                  (Regional Civil Court, Vienna) (Austria) for a preliminary ruling
1975 L 194, p. 39), as amended by Council Directive                        in the proceedings pending before that court between Clean
91/156/EEC of 18 March 1991 (OJ 1991 L 78, p. 32), Article 6               Car Autoservice GmbH and Stadt Wien, Republik Österreich
of Council Directive 91/689/EEC of 12 December 1991 on                     — on the interpretation of the first subparagraph of
hazardous waste (OJ 1991 L 377, p. 20), and Article 14 of                  Article 104(5) of the Rules of Procedure of the Court of Justice,
European Parliament and Council Directive 94/62/EC of                      in codified version 1999/C 65/01 of 6 March 1999 (OJ 1999
20 December 1994 on packaging and packaging waste (OJ                      C 65, p. 1) — the Court (Sixth Chamber), composed of:
1994 L 365, p. 10), the Court (Second Chamber), composed                   N. Colneric, President of the Second Chamber, acting as
of: N. Colneric, President of the Chamber, R. Schintgen and                President of the Sixth Chamber, C. Gulmann, J.-P. Puissochet,
V. Skouris (Rapporteur), Judges, Advocate General: J. Mischo,              R. Schintgen (Rapporteur) and V. Skouris, Judges; L.A. Geel-
Registrar: H. von Holstein, Deputy Registrar, has given a                  hoed, Advocate General; H.A. Rühl, Principal Administrator,
judgment on 24 January 2002, in which it has ruled:                        for the Registrar, has given a judgment on 6 December 2001,
                                                                           in which it has ruled:
1.    Declares that, by not forwarding to the Commission information
      concerning plans for the management and disposal of waste
                                                                           Article 104(5) of the Rules of Procedure of the Court of Justice, in
      and hazardous waste in respect of the regions of Sicily and
                                                                           codified version 1999/C 65/01 of 6 March 1999, is to be
      Basilicata, or information concerning plans for the management
                                                                           interpreted as meaning that payment of the costs incurred by the
      of packaging and packaging waste in respect of all the Italian
                                                                           parties to the main proceedings for the purposes of the procedure
      regions, the Italian Republic has failed to fulfil its obligations
                                                                           under Article 234 EC for obtaining a preliminary ruling is governed
      under Article 7 of Council Directive 75/442/EEC of 15 July
                                                                           by the domestic law rules applicable to the proceedings before the
      1975 on waste, as amended by Council Directive 91/156/EEC
                                                                           national court, provided that those rules are not less favourable than
      of 18 March 1991, Article 6 of Council Directive 91/689/EEC
                                                                           those applicable to similar procedural steps which may be taken in
      of 12 December 1991 on hazardous waste, and Article 14 of
                                                                           such proceedings in accordance with national law.
      European Parliament and Council Directive 94/62/EC of
      20 December 1994 on packaging and packaging waste;
2.    Orders the Italian Republic to pay the costs.                        (1) OJ C 47 of 19.2.2000.
(1) OJ C 34 of 5.2.2000.
                                                                                JUDGMENT OF THE COURT
                  JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                          (Sixth Chamber)
                                                                                10 January 2002
                        of 6 December 2001
in Case C-472/99 (reference for a preliminary ruling from                  In Case C-480/99 P: Gerry Plant and Others v Commission
the Landesgericht für Zivilrechtssachen Wien): Clean Car                                  of the European Communities (1)
Autoservice GmbH v Stadt Wien, Republik Österreich (1)
                                                                           (Appeal — Action for annulment under Article 33 of the
(Article 234 EC — Costs of the parties to the main                         ECSC Treaty — Admissibility — Audi alteram partem rule
proceedings — Article 104(5) of the Rules of Procedure of                                        in judicial proceedings)
                              the Court)
                                                                                (2002/C 84/24)
                           (2002/C 84/23)
                                                                                (Language of the case: English)
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published     (Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                            in the European Court Reports)
In Case C-472/99: reference to the Court under Article 234                 In Case C-480/99 P, Gerry Plant and Others (agents: B. Hewson,
EC from the Landesgericht für Zivilrechtssachen Wien                       barrister, instructed by T. Graham, solicitor): Appeal against


title: Case T-354/14: Judgment of the General Court of 9 December 2015 — Comercializadora Eloro v OHIM — Zumex Group (zumex) (Community trade mark — Opposition proceedings — Application for Community figurative mark ZUMEX — Earlier national figurative mark JUMEX — Lack of genuine use of the earlier mark — Article 42(2) of Regulation (EC) No 207/2009)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/49

         Judgment of the General Court of 9 December 2015 — Comercializadora Eloro v OHIM — Zumex Group (zumex)
   (Case T-354/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark ZUMEX - Earlier national figurative mark JUMEX - Lack of genuine use of the earlier mark - Article 42(2) of Regulation (EC) No 207/2009))
   (2016/C 038/64)
   Language of the case: Spanish

      Parties

      Applicant: Comercializadora Eloro, SA (Ecatepec, Mexico) (represented by: J. de Castro Hermida, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: S. Palmero Cabezas, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Zumex Group, SA (Moncada, Spain) (represented by: M.C. March Cabrelles, lawyer)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 13 February 2014 (Case R 391/2012-1), relating to opposition proceedings between Comercializadora Eloro, SA and Zumex Group, SA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Comercializadora Eloro, SA to pay the costs.

      (1)  OJ C 253, 4.8.2014.


C 305/18               EN                       Official Journal of the European Communities                                    7.12.2002
      provided for in Annex II A or II B to Directive 75/442/                      Removal from the register of Case C-246/99 ( 1)
      EEC (1), as amended by Directive 91/156/EEC (2), or
      himself recovers or disposes of such waste, the Italian
      Republic has failed to fulfil its obligations under Articles 4                                (2002/C 305/33)
      and 8 of that directive;
2.    order the Italian Republic to pay the costs.
                                                                           By order of 11 September 2002 the President of the Court of
                                                                           Justice of the European Communities ordered the removal
                                                                           from the register of Case C-246/99: Commission of the
                                                                           European Communities v Kingdom of Denmark.
Pleas in law and main arguments
                                                                           (1 ) OJ C 246 of 28.8.1999.
The first paragraph of Article 4 of the directive provides that
Member States are to adopt the necessary measures to ensure
that waste is recovered or disposed of without endangering
human health and without using processes or methods which
could harm the environment, and in particular without risk to
water, air, soil and plants and animals, without causing a
nuisance through noise or odours and without adversely
                                                                                Removal from the register of Case C-434/00 ( 1)
affecting the countryside or places of special interest.
                                                                                (2002/C 305/34)
In the present case, the Italian Republic has not adopted any
appropriate measure to ensure that waste deposited in the
Rodano disposal site is recovered or disposed of without
endangering human health and without using procedures or                   By order of 24 September 2002 the President of the Court of
methods which could harm the environment. Consequently, it                 Justice of the European Communities ordered the removal
has failed to fulfil its obligations under Article 4 of the                from the register of Case C-434/00 (Reference for a preliminary
directive.                                                                 ruling by the Hoge Raad der Nederlanden): G. Cuomo.
                                                                           (1 ) OJ C 28 of 27.1.2001.
In addition, Article 8 of the directive provides that Member
States are to ensure that any holder of waste has it handled by
a private or public waste collector or by an undertaking which
carries out the operations listed in Annex II A or B of the
directive, or recovers or disposes of it himself in accordance
with the provisions of the directive. To that end, the owners
or managers of disposal sites are regarded as holders within
the meaning of Article 8.
                                                                                Removal from the register of Case C-120/01 ( 1)
The Italian Republic has failed to adopt the necessary measures
to ensure that the holder of waste deposited in the Rodano                                          (2002/C 305/35)
disposal site has such waste handled by a private or public
collector or an undertaking carrying out the operations
provided for in Annex II A or II B to the directive. Conse-
quently, it has failed to fulfil its obligations under Article 8 of        By order of 9 September 2002 the President of the Court of
the directive.                                                             Justice of the European Communities ordered the removal
                                                                           from the register of Case C-120/01: Commission of the
                                                                           European Communities v Ireland.
( 1) OJ L 194 of 25.7.1975, p. 39.
( 2) OJ L 78 of 26.3.1991, p. 32.
                                                                           (1 ) OJ C 150 of 19.5.2001.


title: Case C-210/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 17 April 2003, in the case of The Queen on the application of 1) Swedish Match AB 2) Swedish Match UK Ltd against Secretary of State for Health

text:
C 171/14              EN                         Official Journal of the European Union                                       19.7.2003
1.   Whether, given the decisions of the Court of Justice of                  erty), to be interpreted as precluding national legislation
     the European Communities in case C-39/86 Lair v                          which prohibits any person from supplying, offering or
     Universität Hannover [1988] ECR 3161, and case C-189/                    agreeing to supply, exposing for supply or possessing for
     97 Brown v Secretary of State for Scotland [1988] ECR                    supply any product made wholly or partly of tobacco
     3205, and developments in the law of the European                        which is either in powder or particulate form or any
     Union, including the adoption of Article 18 EC and                       combination of those forms or is presented in a form
     developments in relation to the competence of the                        resembling a food product and is intended for oral use
     European Union in the field of education, assistance                     other than smoking or chewing?
     with maintenance costs for students attending university
     courses, such assistance being given by way of either
     (a) subsidised loans or (b) grants, continues to fall outside
                                                                         (2) Is Article 8 of Directive 2001/37/EC ( 1) invalid in whole
     the scope of the application of the EC Treaty for the
                                                                              or in part by reason of:
     purposes of Article 12 EC and the prohibition on
     discrimination on grounds of nationality.
2.   If either part of question 1 is answered in the negative,                a.    infringement of the principle of non-discrimination;
     and if assistance with maintenance costs for students in
     the form of grants or loans do now fall within the scope
     of Article 12 EC, what criteria should the national court                b.    Infringement of Article 23 and/or 29 EC;
     apply in determining whether the conditions governing
     eligibility for such assistance are based on objectively
     justifiable considerations not dependent on nationality?
                                                                              c.    infringement of the principle of proportionality;
3.   If either part of question 1 is answered in the negative,
     whether Article 12 EC may be relied upon to claim
     entitlement to assistance with maintenance costs from a                  d.    the inadequacy of Article 95 and/or Article 133 as a
     date prior to the date of the judgment of the Court of                         legal basis;
     Justice in the present case and, if so, whether an exception
     should be made for those who initiated legal proceedings
     before that date?
                                                                              e.    infringement of Article 95(3);
                                                                              f.    misuse of powers;
                                                                              g.    infringement of Article 253 EC and/or the duty to
Reference for a preliminary ruling by the High Court of                             give reasons;
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against                        h.    infringement of the fundamental right to property?
                 Secretary of State for Health
                        (Case C-210/03)                                  (3) In circumstances where:
                        (2003/C 171/20)
                                                                              a.    a national measure implementing Article 8a of
                                                                                Directive 89/622/EEC (2) was adopted in 1992;
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court                            b.    the said national measure was adopted pursuant to
of Justice (England and Wales), Queen’s Bench Division                              powers in domestic law which do not depend on
(Administrative Court), dated 17 April 2003, which was                              the existence of an obligation to implement the
received at the Court Registry on 15 May 2003, for a                                Directive;
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:                     c.    Directive 89/622/EEC (as subsequently amended by
                                                                                the Act of Accession of Austria, Finland and Sweden)
(1) Are Articles 28-30 EC, applied compatibly with the                              is repealed and replaced by Directive 2001/37/EC,
     general principles of proportionality, non-discrimination                      Article 8 of which re-enacts Article 8a of Directive
     and fundamental rights (in particular the right to prop-                       89/622/EEC; and
 ---pagebreak--- 19.7.2003                 EN                       Official Journal of the European Union                                         C 171/15
       d.    Article 8 of Directive 2001/37/EC is invalid by                          person invokes his right of residence imposes on its
             reason of the principles referred to in questions 2(a),                  own nationals no general duty to provide evidence
             2(c) or 2(h) are those principles to be interpreted as                   of identity?
             also prohibiting the national measure in question?
                                                                                c.    If the answer to Question 2a is in the affirmative,
( 1) Directive 2001/37/EC of the European Parliament and of the                       does Community law as it stands at present lay
     Council of 5 June 2001 on the approximation of the laws,                         down any requirements in regard to the period
     regulations and administrative provisions of the Member States                   within which that Member State must afford the
     concerning the manufacture, presentation and sale of tobacco
                                                                                opportunity for the person concerned still to present
     products — Commission statement, OJ L 194, 18.7.2001, p. 26-
                                                                                a valid identity card or passport before it imposes
     35.
( 2) Council Directive 89/622/EEC of 13 November 1989 on the                          an administrative penalty in the form of an order in
     approximation of the laws, regulations and administrative pro-                   respect of the presumed unlawful residence?
     visions of the Member States concerning the labelling of tobacco
     products, OJ L 359, 8.12.1989, p. 1-4.
                                                                                d.    Does an administrative penalty in the form of an
                                                                                order, as referred to in Question 2c, namely the
                                                                                imposition of a detention order with a view to
                                                                                deportation pursuant to Article 59 of the Vw 2000
                                                                                before the period referred to in Question 2c has
                                                                                elapsed constitute a penalty which impinges dispro-
Reference for a preliminary ruling by the Rechtbank                                   portionately on freedom to provide services?
’s-Gravenhage by judgment of that Court of 12 May 2003
in the proceedings between Salah Oulane and Minister
                                                                           3.   a.    If the answer to Question 1 is in the negative, as
            voor Vreemdelingenzaken en Integratie
                                                                                Community law stands at present, is freedom to
                                                                                provide services impeded where a detention order
                            (Case C-215/03)                                           with a view to deportation under Article 59 of the
                                                                                Vw 2000 is, in the interest of public policy, imposed
                            (2003/C 171/21)                                           on a person claiming to be a national of another
                                                                                Member State and a tourist for as long as he does
                                                                                not demonstrate his right of residence by presenting
                                                                                a valid identity card or passport, even where there is
Reference has been made to the Court of Justice of the                                no obvious present and serious danger to public
European Communities by judgment of the Rechtbank                                     policy?
’s-Gravenhage (District Court, The Hague) of 12 May 2003,
received at the Court Registry on 19 May 2003, for a
preliminary ruling in the proceedings between Salah Oulane                      b.    If that freedom is impeded in the manner described
and Minister voor Vreemdelingenzaken en Integratie (Minister                          in Question 3a, is the period within which that
responsible for foreign nationals and Integration) on the                             Member State afforded an opportunity still to pre-
following questions:                                                                  sent a valid identity card or passport material for
                                                                                the purposes of establishing whether or not the
                                                                                impediment is justified?
As regards the first proceedings:
1.     As a consequence of the abolition of entry controls at                   c.    If that freedom is impeded in the manner described
       internal borders, must the third paragraph of Article 4(2)                     in Question 3a is it relevant, for the purposes of
       of Directive 73/148/EEC (OJ 1973 L 172) be interpreted                         establishing whether that impediment is justified,
       as meaning that the right of residence granted therein of                      whether or not the Member State subsequently pays
       a person who claims to be a national of another Member                         compensation in respect of the period during which
       State and a tourist has to be recognised by the authorities                    the person was detained pending production of
       of the Member State in which that person invokes his                           proof of nationality by means of a valid passport or
       right of residence only from such time as he has presented                     identity card, as is customary in that Member State
       his valid identity card or passport?                                           in the case of unlawful detention as an illegal alien?
2.     a.    If the answer to Question 1 is in the affirmative,
             does Community law as it stands at present, in                4.   Where a Member State itself lays down no general duty
             particular in regard to the principle of non-discrimi-             to provide evidence of identity, does Community law as
             nation and the freedom to provide services, provide                it stands at present preclude, in particular in light of the
             grounds for making an exception thereto with the                   prohibition on discrimination, a Member State from
             result that the authorities of a Member State must                 imposing, in connection with the internal control of
             still afford to that person the opportunity to present             aliens, a measure such as detention as an illegal alien with
             his valid identity card or passport?                               a view to deportation under Article 59 of the Vw in
                                                                                respect of a person who claims to be a tourist for as long
       b.    Is it material to the answer to Question 2a that the               as that person does not demonstrate his alleged right of
             national law of the Member State in which that                     residence by presenting a valid identity card or passport?


title: Case C-87/07: Order of the President of the Seventh Chamber of the Court of 10 August 2007 — Commission of the European Communities v Republic of Malta

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/34

         Order of the President of the Seventh Chamber of the Court of 10 August 2007 — Commission of the European Communities v Republic of Malta
   (Case C-87/07) (1)

   (2007/C 297/65)

      Language of the case: Maltese

   The President of the Seventh Chamber has ordered that the case be removed from the register.

      (1)  OJ C 82, 14.4.2007.