title: Reference for a preliminary ruling by the Pretura Circondariale di Caserta by order of that court of 14 October 1996 in the case of Antonio Pontillo against Donatab (Case C-372/96)

text:
8 . 2. 97             1 EN |                     Official Journal of the European Communities                                     No C 40/9
Reference for a preliminary ruling by the Pretura                                down by Article 40 ( 3 ) of the EC Treaty and
Circondariale di Caserta by order of that court of                               infringement of Article 23 of Regulation ( EEC )
14 October 1996 in the case of Antonio Pontillo against                          No 441 /88 ( 4 )?
                                 Donatab
                           Case C-372/96 )                                  2 . Are the fourth indent of Article 1 ( 3 ) of Regulation
                                                                                ( EC ) No 343/94 and Article 1 ( 1 ), ( 2 ) and ( 3 ) of
                             ( 97/C 40/ 17 )
                                                                                Regulation ( EC ) No 465/94, as amended by
                                                                                Regulation ( EC ) No 610/94, invalid for breach of the
Reference has been made to the Court of Justice of the                           principle of the protection of legitimate expectations ?
European Communities by order of the Pretura
Circondariale ( District Magistrates' Court ), Caserta , of                 3 . Are the fourth indent of Article 1 ( 3 ) of Regulation
14 October 1996 , received at the Court Registry on                              ( EC ) No 343/94 , and Article 1 ( 1 ), ( 2 ) and ( 3 ) of
25 November 1996 , for a preliminary ruling in the case of                       Regulation ( EC ) No 465/94, as amended by
Antonio Pontillo against Donatab on the following                                Regulation ( EC ) No 610/94, invalid for infringement
questions :                                                                      of Article 31 of Regulation ( EEC ) No 822/87 ( 5 ) and
                                                                                their enactment ultra vires for failure to meet the legal
1 . In the light of the principle of the protection of                           requirement of an accurate determination of the 'yield
      legitimate expectations and of the rationale underlying                    per hectare '?
     the quota system, is Council Regulation ( EEC )
      No 1738/91 (') to be regarded as valid, in so far as it               4 . Is Article 39 (4 ) of Regulation ( EEC ) No 822/87
      unexpectedly and unpreditably reduced the prices and                       invalid for breach of the principle of proportionality in
     the processing premium for tobacco of the variety                           so far as it prescribes, in the case of each producer
      known as Burley I ( Italian ) at such a late stage in the                  subject to the obligation , the volume to be distilled, a
     tobacco crop year that even most prudent and alert                          wholly inappropriate means of attaining the objective
     growers were left with no room for manoeuvre ?                              sought ?
2 . Is the fact that Regulation ( EEC ) No 1738/91 fails to                 5 . Is the fourth indent of Article 4 ( 2 ) of Regulation
      give any reasons at all , whether express or implied , for                  ( EEC ) No 441 /88 invalid for exceeding the limits on
      its provisions concerning Burley I tobacco — which                         the exercise of administrative discretion in delimiting
      was more seriously affected than other tobacco                             regions for the purposes of the common organization
      varieties even though excess production of those                           of the markets ?
      varieties had been even higher — open to criticism in
      that it constitutes a breach of essential procedural                  6 . Is Article 1 ( 1 ) of Regulation ( EC ) No 3151 /94 ( 6 )
      requirements ?                                                              invalid for infringement of Article 39 ( 1 ) of Regulation
                                                                                ( EEC ) No 822/87 inasmuch as it fails to meet the legal
(') OJ No L 163 , 26 . 6 . 1991 , p . 13 .                                        requirement of serving to restore market stability in
                                                                                the current wine year ?
                                                                            7. Is Article 1 ( 1 ) of Regulation ( EC ) No 3151 /94 invalid
                                                                                because it contravenes the principle of proportionality
                                                                                with which Community policy should be consistent ?
Reference for a preliminary ruling by the Pretura
Circondariale        di    Treviso ,       Sezione    Distaccata     di
                                                                             ')  OJ  No  L  44, 17 . 2 . 1994, p . 9 .
Conegliano, by order of that court of 2 November 1996                        2)  OJ  No  L  58 , 2 . 3 . 1994 , p . 2 .
in the case of Galileo Zaninotto against Ispettorato                         ')  OJ  No  I. 77, 19 . 3 . 1994 , p . 12 .
        Centrale Repressioni Frodi, Ufficio di Conegliano                    4)  OJ  No  L  45 , 18 . 2 . 1988 , p . 15 .
                          ( Case C-375 /96 )                                 ■') OJ  No  L  84, 27 . 3 . 1987, p . 1 .
                                                                             ") OJ   No  L  332 , 22 . 12 . 1994 , p . 32 .
                              ( 97/C 40/ 18 )
Reference has been made to the Court of Justice of the
European        Communities         by     order   of    the  Pretura
Circondariale ( District Magistrates' Court ), Treviso —
Sezione Distaccata di Conegliano ( Conegliano Section ) —                   Reference for a preliminary ruling by the Tribunal de
of 2 November 1996 , received at the Court Registry on                      Premiere Instance de Huy on a judgment of the Tribunal
26 November 1996 , for a preliminary ruling in the case of                  Correctionnel de Huy of 29 October 1996 in the criminal
Galileo Zaninotto against Ispettorato Centrale Repressioni                  proceedings pending before that court in the case of
Frodi , Ufficio di Conegliano, on the following questions:                  Ministere Public against B. Leloup, S. Leloup and Sofrage
                                                                                Sari
 1 . Are the fourth indent of Article 1 ( 3 ) of Regulation                                                Case C-376/96 )
       ( EC ) No 343/94 ('), and Article 1 ( 1 ) ( c ), Article 1 ( 2 ),
                                                                                97/C 40/ 19
       second subparagraph, and Article 1 ( 3 ) ( Annex,
       concerning Region 4 ) of Regulation ( EC ) No
       465/94 ( 2 ), as amended by Regulation ( EC ) No                     Reference has been made to the Court of Justice of the
       610/94 (■*) so far as concerns Region 4 , invalid for                European Communities by judgment of the Tribunal
       breach of the principle of non-discrimination laid                    Correctionnel ( Criminal Court ), Huy, of 29 October 1996 ,


title: Case C-443/06: Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Erika Hollmann v Fazenda Pública (Direct taxation — Taxation of capital gains on immovable property — Free movement of capital — Basis of assessment — Discrimination — Cohesion of the tax system)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/15

         Judgment of the Court (Fourth Chamber) of 11 October 2007 (reference for a preliminary ruling from the Supremo Tribunal Administrativo — Portugal) — Erika Hollmann v Fazenda Pública
   (Case C-443/06) (1)

   (Direct taxation - Taxation of capital gains on immovable property - Free movement of capital - Basis of assessment - Discrimination - Cohesion of the tax system)
   (2007/C 297/23)
   Language of the case: Portuguese
   Referring court
   Supremo Tribunal Administrativo
   Parties to the main proceedings

      Applicant: Erika Hollmann

      Defendant: Fazenda Pública

      Intervener: Ministério Público
   Re:
   Reference for a preliminary ruling — Supremo Tribunal Administrativo — Interpretation of Articles 12 EC, 18 EC, 39 EC, 43 EC and 56 EC — Taxation of capital gains realised on the transfer for valuable consideration of real property — Exclusion from the part exemption provided for for persons residing in Portugal of capital gains realised on such transfers made by persons residing in another Member State
   Operative part of the judgment
   Article 56 EC must be interpreted as precluding national legislation, such as that in dispute in the main proceedings, which subjects capital gains resulting from the transfer of immovable property situated in a Member State, in this case Portugal, where that transfer is made by a resident of another Member State, to a tax burden greater than that which would be applicable for the same type of transaction to capital gains realised by a resident of the State in which that immovable property is situated.

      (1)  OJ C 326, 30.12.2006.


title: Reference for a preliminary ruling from the Cour d'Appel, Douai, by judgment of that court of 20 June 1996 in the case of SA Cabour and SA Nord Distribution Automobile v. SARL Arnor 'Soco' (interveners: SA Automobile Peugeot and SA Automobiles Citroën) (Case C-230/96)

text:
14 . 9 . 96             EN                    Official Journal of the European Communities                                      No C 269/9
Reference for a preliminary ruling from the Cour d'Appel,                  II . Can Commission Regulation ( EC ) No 1475/95
Douai, by judgment of that court of 20 June 1996 in the case                     of 28 June 1995 replacing Regulation ( EEC )
of SA Cabour and SA Nord Distribution Automobile v.                              No 123/85 (2) be interpreted as meaning that an
SARL Arnor 'Soco' ( interveners: SA Automobile Peugeot                           exclusive concession contract containing clauses of the
                  and SA Automobiles Citroen )                                   sort referred to in Question I ( 2 ) and ( 3 ) qualifies for
                           Case C-230/96 )                                       exemption under Article 1 of that Regulation, having
                                                                                regard respectively to Articles 3 ( 3 ) and 4 ( 1 ) ( 3 ) of
                            ( 96/C 269/21
                                                                                Regulation ( EC ) No 1475/95 in conjunction with
                                                                                Article 5 ( 2 ) ( 2 ), ( 2 ) ( 3 ) and ( 3 )?
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Cour d'Appel                   III . In the event that Regulations ( EEC ) No 123/5 and ( EC )
( Court of Appeal ), Douai , of 20 June 1996 , which was                         No 1475/95 cannot be interpreted as conferring the
received at the Court Registry on 8 July 1996 , for a                            benefit of the exemption for which they provide on
preliminary ruling in the case of SA Cabour and SA Nord                          concession contracts of the kind referred to in
Distribution Automobile v. SARL Arnor ' Soco' ( interveners :
                                                                                Questions I and II, must Article 85 ( 1 ) of the EC Treaty
SA Automobile Peugeot and SA Automobiles Citroen ), on                           be interpreted as meaning that an exclusive distribution
the following questions :                                                        network of a motor vehicle manufacturer which is
                                                                                based, throughout the territory of a Member State, on
  I. Can Commission Regulation ( EEC ) No 123/85 of                              such concession contracts is caught by the prohibition
      12 December 1984 on the application of Article 85 ( 3 )                    set out in that provision ?
      of the EEC Treaty (') be interpreted as meaning that
      an exclusive concession agreement binding a car                    (') OJ No L 15 , 18 . 1 . 1985 , p . 16 .
      manufacturer to a concessionaire qualifies for                     ( 2 ) OJ No L 145 , 29 . 6 . 1995 , p . 25 .
      exemption under Article 1 of that Regulation where
      that contract :
      1 . does not exemplify the 'objectively valid reasons'
           referred to in Article 5 ( 2 ) ( 1 ) ( a ) and ( b ) and
           Article 5 ( 3 ) of that Regulation ;
                                                                         Action brought on 8 July 1996 by the French Republic
      2 . rules out any possibility for the concessionaire to                against the Commission of the European Communities
           sell new vehicles supplied by persons other than the
           manufacturer, even at commercial premises                                                   Case C-232/96 )
           separate from those at which contract goods are                                              ( 96/C 269/22 )
           offered for sale , except where objectively valid
           reasons not existing at the time when the contract
           was concluded are proved, a stipulation which has             An action against the Commission of the European
           to be considered in relation to the interpretation of         Communities was brought before the Court of Justice of the
           Articles 3 ( 3 ) and 5 ( 2 ) of the Regulation ;              European Communities on 8 July 1996 by the French
                                                                         Republic, represented by Catherine de Salins and Frederic
                                                                         Pascal , acting as Agents , with an address for service in
      3 . lays down a sales objective according to which the             Luxembourg at the French Embassy, 9 boulevard Henri .
           concessionaire       undertakes     to   use    its  best
           endeavours to sell during each annual period a
           quantity of contract vehicles which, if not specified         The applicant claims that the Court should :
           by agreement between the parties, is fixed by the
           manufacturer on the basis of forecasts made by it or          — declare null and void Commission Decision 96/311 /EC
           criteria determined by it, and specifies that, in the               of 10 April 1996 on the clearance of the accounts
           event that 90 % of 7/ 1 lths of the sales objective has             presented by the Member States in respect of the
           not been achieved on 31 August in the current                       expenditure for 1992 of the Guarantee Section of the
           annual period and the ' aggregate percentage                        European Agricultural Guidance and Guarantee Fund
           penetration ' of contract vehicles in the territory to              and in respect of certain expenditure for 1993 ('), in so
           which the concession relates, assessed on 31 July of                far as the Commission has disallowed for France for
           the current annual period, is 15 to 45% —                            1992 :
           depending on where the territory is located —
           lower than the national average penetration of
           contract vehicles, the manufacturer may, on giving                  — FF76 041 440 of eligible expenditure corresponding
                                                                                to intervention measures in the beef and veal sector
           three or six months ' notice, alter the contract
           territory and/or withdraw from the concessionaire                        as regards the submission of tenders under the
           exclusive dealership in the territory, or terminate                      tendering procedure ,
           the concession contract, which stipulations should
           be considered in relation to the interpretation of                  — FF 86 061 448 of eligible expenditure corresponding
           Articles 4 ( 1 ) ( 3 ) and 5 ( 2 ) ( 2 ) and ( 3 ) of the                to intervention measures concerning the public
           Regulation ?                                                             storage of cereals,


title: Case C-200/99: Action brought on 26 May 1999 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland

text:
C 226/18               EN                    Official Journal of the European Communities                                      7.8.1999
1. When determining whether the Applicant, as a British                     (c) Give rise to directly effective rights which citizens of
   Overseas Citizen not entitled (under United Kingdom law)                      the Union may invoke before national courts and
   to enter or remain in the United Kingdom, is a ‘person                        tribunals.
   holding the nationality of a Member State’ and therefore is
   ‘a citizen of the Union’ for the purpose of Article 8 of the
   EC Treaty:                                                               (d) Apply to situations which are wholly internal to a
                                                                                single Member State?
   (1) What is the effect (if any) as a master of Community
        law of
        (a) the United Kingdom’s 1972 Declaration ‘on the
            definition of the term “nationals”’ which was
            made at the time of Accession to the European
            Communities and annexed to the Final Act of the
            Accession Conference, and
                                                                        Action brought on 26 May 1999 by the Commission of
                                                                        the European Communities against the United Kingdom
                                                                                of Great Britain and Northern Ireland
        (b) the United Kingdom’s 1982 Declaration ‘on the
            meaning of a UK national’ and
                                                                                (Case C-200/99)
        (c) Declaration No. 2 to the Treaty on European Union
            signed on 7 February 1992 that nationality is to be                                  (1999/C 226/29)
            decided solely by reference to the national law of
            the Member State concerned and Member States
            may declare, for information, who are to be                 An action against the United Kingdom of Great Britain and
            considered to be their nationals for Community              Northern Ireland was brought before the Court of Justice of
            purposes?                                                   the European Communities on 26 May 1999 by the Com-
                                                                        mission of the European Communities, represented by Mr
                                                                        Peter Oliver, Legal Adviser, acting as agent, with an address for
                                                                        service in Luxembourg at the office of Carlos Cómez de la
   (2) If and to the extent that the United Kingdom is not              Cruz, member of the Legal Service of the Commission, Centre
        entitled, as a matter of Community law, to rely on the          Wagner, Kirchberg.
        Declarations referred to in (1) above, what are the
        relevant criteria for identifying whether a person has
        nationality of a Member State for the purposes of               The Applicant claims that the Court should:
        Article 8 where domestic law identifies various categor-
        ies of nationality only some of which confer a right to
        enter and remain in that Member State?                          — declare that by failing to adopt all the laws, regulations or
                                                                            administrative provisions necessary to comply with (i)
                                                                            Council Directive 95/68/EC (1) amending Directive
                                                                            77/99/EEC (2) on health problems affecting the production
   (3) In this context, what is the effect of the principle of              and marketing of meat products and certain other products
        respect for fundamental human rights under Com-                     of animal origin, and (ii) Council Directive 96/90 (3)
        munity law claimed by the Applicant, in particular                  amending Directive 92/118/EEC (4) laying clown animal
        where the Applicant relies on Article 3(2) of the Fourth            health and public health requirements governing trace in
        Protocol to the European Convention on Human                        and imports into the Community of products not subject
        Rights that no one shall be deprived of the right to                to the said requirements laid down in specific Community
        enter the territory of the State of which he is a national,         rules referred to in Annex A (1) to Directive 89/662/EEC (5)
        which has not been ratified by the United Kingdom?                  and, as regards pathogens, to Directive 90/425/EEC(6); the
                                                                            United Kingdom has failed to fulfil its obligations under
                                                                            this Directive and under the Treaty; and
2. In the circumstances of the present case, does Article 8a(1)
   of the EC Treaty:
                                                                        — order the United Kingdom to pay the costs.
   (a) Confer rights on a citizen of the Union to enter and
        remain in the Member State of which he is a national            Pleas in law and main arguments
        even where those rights are otherwise denied by
        national law.
                                                                        Article 249 CE (ex article 189) under which a directive shall
                                                                        be binding, as to the result to be achieved, upon each Member
   (b) Confer rights additional to those which existed under            State, carries by implication an obligation on the Member
        the EC Treaty prior to its amendment by the Treaty on           States to observe the period for compliance laid down in the
        European Union.                                                 directive. That period has expired without the United Kingdom
 ---pagebreak--- 7.8.1999                EN                     Official Journal of the European Communities                                       C 226/19
having enacted the provisions necessary to comply with the                2. The ‘recognition’ directive precludes a doctor who holds a
directives referred to in the conclusions of the Commission.                   single degree and a single professional qualification from
                                                                               being included simultaneously in the register of medical
                                                                               practitioners and in that of dental practitioners;
(1) of 22 December 1995, OJ L 332, 30.12.1995, p. 10.
(2) Council Directive 77/99/EEC of 21 December 1976 on health             3. It appears to the Commission that, so far as professional
    problems affecting intra-Community trade in meat products OJ               title is concerned, doctors who practise in Italy mainly as
    L 026, 31.1.1977, p. 85.                                                   dentists do not practise with the title ‘odontoiatra’ (dental
(3) of 17 December 1996, OJ L 013, 16.1.1997, p. 24.                           practitioner) but with that of ‘medico dentists’ (doctor
(4) of 17 December 1992, OJ L 062, 15.3.1993, p. 49.                           dentist), a title which was not notified to the Commission.
(5) of 11 December 1989 concerning veterinary checks in intra-
    Community trade with a view to the completion of the internal              The Commission submits that the present situation runs
    market. OJ L 395, 30.12.89, p. 13.                                         counter to the coordinated system established by the
(6) of 26 June 1990 concerning veterinary and zootechnical checks              ‘dental practitioner’ directives. A situation of this kind
    applicable in intra-Community trade in certain live animals and            creates confusion in a host Member State and adversely
    products with a view to the completion of the internal market. OJ          affects professionals seeking to exercise their right of free
    L 224, 18.8.1990, p. 29.                                                   movement, whose qualifications may be challenged by the
                                                                               host State and held to be at variance with the directives.
                                                                          (1) Council directive of 25.7.1978, OJ L 233 of 24 August 1978,
                                                                              p. 10.
Action brought on 26 May 1999 by the Commission of
  the European Communities against the Italian Republic                   Reference for a preliminary ruling by the Højesteret by
                                                                          order of 21 May 1999 in the case of Henning Veedfald v
                          (Case C-202/99)                                                      Århus Regional Authority
                                                                                (Case C-203/99)
                          (1999/C 226/30)
                                                                                (1999/C 226/31)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 26 May
1999 by the Commission of the European Communities,                       Reference has been made to the Court of Justice of the
represented by Enrico Traverso, Legal Adviser, and Bernard                European Communities by order of 21 May 1999 by the
Mongin, of its Legal Service, acting as Agents, with an address           Højesteret (Danish Supreme Court), which was received at the
for service in Luxembourg at the office of Carlos Gómez de la            Court Registry on 26 May 1999, for a preliminary ruling in
Cruz, Wagner Centre, Rue Alcide de Gasperi.                               the case of Henning Veedfald v Århus Regional Authority on
                                                                          the following questions:
The applicant claims that the Court should:
                                                                          Question 1:
1. declare that, by maintaining a second system of training
     for entry into the dental profession which is contrary to            Must Article 7(a) of Council Directive 85/374/EEC (1) of 25 July
     Directive 78/687/EEC (1), and by maintaining the possi-              1985 be construed as meaning that a defective product is not
     bility for doctors who practise as dentists to be doubly             put into circulation if the producer of the defective product, in
     registered in the registers of medical and dental prac-              the course of providing a specific medical service, produces
     titioners, the Italian Republic has failed to fulfil its obli-       and uses the product on a human organ which, at the time
     gations under Directive 78/687/EEC;                                  when the damage occurred, had been removed from a donor’s
                                                                          body in order to be prepared for transplant into another
                                                                          person’s body, with resulting damage to the organ?
2. order the Italian Republic to pay the costs.
                                                                          Question 2:
Pleas in law and main arguments
                                                                          Must Article 7(c) of Council Directive 85/374/EEC of 25 July
1. It is clear to the Commission that the second training                 1985 be construed as meaning that a publicly owned hospital
     provided for by Law No 409 of 24 July 1985 (dental                   is free from liability under the directive for products produced
     training lasting three years) does not meet the mandatory            and used by that hospital in the course of providing a specific
     requirements of Article 1 of the ‘coordination’ directive,           publicly financed service to the person suffering injury and in
     which calls for special dental training lasting five years;          respect of which that person has not paid any consideration?


title: Order of the President of the Court of First Instance of 31 October 2000 in Case T-76/00 R: Bruno Farmaceutici SpA v Commission of the European Communities (Proceedings for interim relief — Withdrawal of marketing authorisation for medicinal products for human use containing amfepramone — Directive 75/319/EEC — Urgency — Need to balance interests)

text:
C 108/20               EN                       Official Journal of the European Communities                                         7.4.2001
Hague, represented by E.H. Pijnacker Hordijk, of the Amster-               1.    The action is dismissed as inadmissible;
dam Bar, S.B. Noë, of the Hague Bar, and M.S.H. de Ranitz, of
the Amsterdam Bar, with an address for service in Luxembourg               2.    The applicants are to pay the costs.
at the Chambers of M. Loesch, 11 Rue Goethe, v Commission
of the European Communities (Agent: W. Wils) — application
for partial suspension of operation of the Commission’s                    (1) OJ C 149 of 27.5.2000.
decision 2000/117/EC of 26 October 1999 concerning a
proceeding pursuant to Article 81 of the EC Treaty (Case
IV/33.884 — Nederlandse Federatieve Vereniging voor de
Groothandel op Elektrotechnisch Gebied and Technische Unie
(FEG and TU)) (OJ 2000 L 39, p. 1) — the President of the
Court of First Instance made an order on 14 December 2000,
the operative part of which is as follows:
                                                                           ORDER OF THE PRESIDENT OF THE COURT OF FIRST
1.   CEF City Electrical Factors BV and CEF Holdings Ltd are                                            INSTANCE
     granted leave to intervene in support of the form of order sought
     by the defendant in the proceedings for interim measures.
                                                                                of 31 October 2000
2.   The application for interim measures is dismissed.
                                                                           in Case T-76/00 R: Bruno Farmaceutici SpA v Commission
                                                                                of the European Communities
3.   The costs are reserved.
                                                                           (Proceedings for interim relief — Withdrawal of marketing
                                                                           authorisation for medicinal products for human use contain-
                                                                           ing amfepramone — Directive 75/319/EEC — Urgency —
                                                                                Need to balance interests)
                                                                                (2001/C 108/37)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: German)
                       of 19 October 2000
                                                                           In Case T-76/00 R: Bruno Farmaceuti SpA, established in
                                                                           Rome, Essential Nutrition Ltd, established in Brough (United
in Case T-58/00: Bond van de Fegarbel-Beroepsverenigin-                    Kingdom), Hoechst Marion Roussel Ltd, established in
gen and Others v Commission of the European Communi-                       Uxbridge (United Kingdom), Hoechst Marion Roussel SA,
                               ties (1)                                    established in Brussels, Marion Merrell SA, established in
                                                                           Puteaux (France), Marion Merrell SA, established in Barcelona
                                                                           (Spain), Sanova Pharma GmbH, established in Vienna, Temm-
(Action for annulment — Commission Regulation (EC)                         ler Pharma GmbH & Co. KG, established in Marburg (Germ-
              No 2790/1999 — Inadmissibility)                              any), represented by B. Sträter, Rechtsanwalt, Bonn, Germany,
                                                                           with an address for service in Luxembourg at the Chambers of
                         (2001/C 108/36)                                   Bonn and Schmidt, 7 Val Sainte-Croix, against the Commission
                                                                           of the European Communities (Agents: H. Støvlbæk and
                                                                           B. Wägenbaur) — application for the suspension of application
                                                                           of the decision of the Commission of 9 March 2000 concern-
                   (Language of the case: Dutch)                           ing the withdrawal of authorisations for placing on the market
                                                                           medicinal products for human consumption containing
In Case T-58/00: Bond van de Fegarbel-Beroepsverenigingen,                 amfepramone (C(2000) 453) — the President of the Court of
established in Brussels, Jules Appeltants, residing at Grâce-              First Instance made an order on 31 October 2000, the
Hollogne (Belgium), and Benny Corbeels, residing at Louvain                operative part of which is as follows:
(Belgium), represented by J. Van Hoof, of the Brussels Bar, with
an address for service in Luxembourg at the Chambers of                    1.    The application to the applicants of the decision of the
F. Brouxel, 6 Rue Zithe, v Commission of the European                            Commission of 9 March 2000 concerning the withdrawal of
Communities (Agent: W. Wils) — application for annulment of                      authorisations for placing on the market medicinal products for
Commission Regulation (EC) No 2790/1999 of 22 December                           human consumption containing amfepramone (C(2000) 453)
1999 on the application of Article 81(3) of the Treaty to                        is suspended.
categories of vertical agreements and concerted practices (OJ
1999 L 336, p. 21) — the Court of First Instance (Third                    2.    Costs are reserved.
Chamber), composed of: J. Azizi, President, and K. Lenaerts
and M. Jaeger, Judges; H. Jung, Registrar, made an order on
19 October 2000, the operative part of which is as follows:


title: Judgment of the Court (Fifth Chamber) of 19 October 2000 in Case C-339/98 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Peacock AG v Hauptzollamt Paderborn (Common customs tariff — Tariff headings — Tariff classification of network cards — Classification in the Combined Nomenclature)

text:
23.12.2000              EN                      Official Journal of the European Communities                                         C 372/3
                 JUDGMENT OF THE COURT                                     under heading No 8471 of the Combined Nomenclature. Between
                                                                           July 1990 and May 1995 those cards were therefore to be classified
                          (Fifth Chamber)                                  under heading No 8471 as units of machines of that type.
                       of 19 October 2000                                  (1) OJ C 358 of 21.11.1998.
in Case C-339/98 (reference for a preliminary ruling from
the Finanzgericht Düsseldorf): Peacock AG v Haupt-
                      zollamt Paderborn (1)
(Common customs tariff — Tariff headings — Tariff
classification of network cards — Classification in the
                    Combined Nomenclature)                                 Action brought on 29 September 2000 by the Com-
                                                                           mission of the European Communities against the Italian
                          (2000/C 372/04)                                                               Republic
                                                                                (Case C-363/00)
                   (Language of the case: German)
                                                                                (2000/C 372/05)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                          An action against the Italian Republic was brought before the
                                                                           Court of Justice of the European Communities on 29 Septem-
In Case C-339/98: reference to the Court under Article 177 of              ber 2000 by the Commission of the European Communities,
the EC Treaty (now Article 234 EC) from the Finanzgericht                  represented by Enrico Traversa, Legal adviser, acting as Agent,
Düsseldorf (Finance Court, Düsseldorf), Germany, for a pre-                with an address for service in Luxembourg at the office of
liminary ruling in the proceedings pending before that court               Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
between Peacock AG and Hauptzollamt Paderborn — on the
interpretation of Note 5(B) to Chapter 84 of the Combined                  The applicant claims that the Court should:
Nomenclature of the Common Customs Tariff, set out in
Annex I to Council Regulation (EEC) No 2658/87 of 23 July
1987 on the tariff and statistical nomenclature and on the                 (a)   Declare that by not making available to the Commission
Common Customs Tariff (OJ 1987 L 256, p. 1), as amended                          the sum of LIT 1 484 956 000 000 by way of own
by the annexes to Commission Regulation (EEC) No 2886/89                         resources within the period laid down by Articles 9 and
of 2 August 1989 (OJ 1989 L 282, p. 1), Commission                               10 of Council Regulation (EC, Euratom) No 1150/2000
Regulation (EEC) No 2472/90 of 31 July 1990 (OJ 1990                             of 22 May 2000 implementingt Decision 94/728/EC,
L 247, p. 1), Commission Regulation (EEC) No 2587/91 of                          Euratom on the system of the Communities’ own
26 July 1991 (OJ 1991 L 259, p. 1), Commission Regulation                        resources (1), and refusing to pay interest for delay on that
(EEC) No 2505/92 of 14 July 1992 (OJ 1992 L 267, p. 1),                          amount owed pursuant to Article 11 of the same
Commission Regulation (EEC) No 2551/93 of 10 August                              regulation, the Italian Republic is in breach of its obli-
1993 (OJ 1993 L 241, p. 1) and Commission Regulation (EC)                        gations under Articles 9, 10 and 11 of that regulation;
No 3115/94 of 20 December 1994 (OJ 1994 L 345, p. 1), —
the Court (Fifth Chamber), composed of: M. Wathelet, President             (b) Order the Italian Republic to pay the costs.
of the First Chamber, acting as President of the Fifth Chamber,
D.A.O. Edward (Rapporteur), J.-P. Puissochet, P. Jann and
L. Sevón, Judges; F.G. Jacobs, Advocate General; H. von                   Pleas in law and main arguments
Holstein, Deputy Registrar, for the Registrar, has given a
judgment on 19 October 2000, in which it has ruled:
                                                                           The Commission argues that, by crediting to the Commis-
                                                                           sion’s account only LIT 1 486 594 526 rather than
Note 5 (B) to Chapter 84 of the Combined Nomenclature of the               LIT 1 486 442 594 526 on 30 May 1996, and not crediting
Common Customs Tariff, set out in Annex 1 to Council Regulation            the remainder due until 27 June 1996, the Italian Republic
(EEC) No 2658/87 of 23 July 1987 on the tariff and statistical             unduly delayed making available Community own resources,
nomenclature and on the Common Customs Tariff, as amended by               in breach of the regulation.
the annexes to Commission Regulation (EEC) No 2886/89 of
2 August 1989, Commission Regulation (EEC) No 2472/90 of
31 July 1990, Commission Regulation (EEC) No 2587/91 of                    Commission staff therefore considered it necessary to apply
26 July 1991, Commission Regulation (EEC) No 2505/92 of                    Article 11 of Regulation No 1552/89, (2) providing for pay-
14 July 1992, Commission Regulation (EEC) No 2551/93 of                    ment of interest where a Member State is late in crediting own
10 August 1993 and Commission Regulation (EC) No 3115/94                   resources to the account opened for that purpose in the name
of 20 December 1994, does not preclude the classification of network       of the Commission with the body designated by each Member
cards designed to be installed in automatic data processing machines       State.


title: Case T-330/08: Order of the General Court of 14 February 2012 — Ligny Pesca di Guaiana Francesco and Others v Commission (Action for annulment — Regulation (EC) No 530/2008 — Recovery plan for bluefin tuna — Setting TACs for 2008 — Act of general application — Lack of individual concern — Inadmissible)

text:
               14.4.2012

               EN

               Official Journal of the European Union

               C 109/12

         Order of the General Court of 14 February 2012 — Ligny Pesca di Guaiana Francesco and Others v Commission
   (Case T-330/08) (1)

   (Action for annulment - Regulation (EC) No 530/2008 - Recovery plan for bluefin tuna - Setting TACs for 2008 - Act of general application - Lack of individual concern - Inadmissible)
   2012/C 109/26
   Language of the case: Italian

      Parties

      Applicants: Ligny Pesca di Guaiana Francesco e C. Snc (Trapani, Italy) and the six other applicants whose names are mentioned in an annex to the order (represented by: A. Clarizia, P. Ziotti, P. De Luca, A. Amatucci and R. Malinconico, lawyers)

      Defendant: European Commission (represented by: K. Banks and D. Nardi, acting as Agents)

      Re:

   Application for annulment of Article 1 and Article 3(1) of Commission Regulation (EC) No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longitude 45° W, and in the Mediterranean Sea (OJ 2008 L 155, p. 9).

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Ligny Pesca di Guaiana Francesco e C. Snc and the six other applicants whose names appear in the annex are to bear their own costs and to pay those incurred by the European Commission.

      (1)  OJ C 272, 25.10.2008.


title: Case C-524/04: Judgment of the Court (Grand Chamber) of 13 March 2007 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom)) — Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue (Freedom of establishment — Free movement of capital — Corporation tax — Loan interest paid to a related company resident in another Member State or in a non-member country — Interest treated as a distribution — Cohesion of the tax system — Tax avoidance)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/5

         Judgment of the Court (Grand Chamber) of 13 March 2007 (reference for a preliminary ruling from the High Court of Justice (Chancery Division) (United Kingdom)) — Test Claimants in the Thin Cap Group Litigation v Commissioners of Inland Revenue
   (Case C-524/04) (1)

   (Freedom of establishment - Free movement of capital - Corporation tax - Loan interest paid to a related company resident in another Member State or in a non-member country - Interest treated as a distribution - Cohesion of the tax system - Tax avoidance)
   (2007/C 95/07)
   Language of the case: English
   Referring court
   High Court of Justice (Chancery Division)
   Parties to the main proceedings

      Applicant: Test Claimants in the Thin Cap Group Litigation

      Defendant: Commissioners of Inland Revenue
   Re:
   Reference for a preliminary ruling — High Court of Justice (Chancery Division) — Interpretation of Articles 43, 49 and 56 EC — National tax legislation — Ability of a company established on national territory to deduct for tax purposes interest paid on a loan granted by its parent company — Situation differing according to the State where the parent company established
   Operative part of the judgment

               1.

               Article 43 EC precludes legislation of a Member State which restricts the ability of a resident company to deduct, for tax purposes, interest on loan finance granted by a direct or indirect parent company which is resident in another Member State or by a company which is resident in another Member State and is controlled by such a parent company, without imposing that restriction on a resident company which has been granted loan finance by a company which is also resident, unless, first, that legislation provides for a consideration of objective and verifiable elements which make it possible to identify the existence of a purely artificial arrangement, entered into for tax reasons alone, to be established and allows taxpayers to produce, if appropriate and without being subject to undue administrative constraints, evidence as to the commercial justification for the transaction in question and, secondly, where it is established that such an arrangement exists, such legislation treats that interest as a distribution only in so far as it exceeds what would have been agreed upon at arm's length.

               2.

               Article 43 EC has no bearing on legislation of a Member State, such as the legislation referred to in Question 1, where that legislation applies to a situation in which a resident company is granted a loan by a company which is resident in another Member State or in a non-member country and which does not itself control the borrowing company and where each of those companies is controlled, directly or indirectly, by a common parent company which is resident in a non-member country.

               3.

               In the absence of Community legislation, it is for the domestic legal system of each Member State to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, including the classification of claims brought by injured parties before national courts and tribunals. Those courts and tribunals are, however, obliged to ensure that individuals have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied on them and the amounts paid to that Member State or withheld by it directly against that tax. As regards other loss or damage which a person may have sustained by reason of a breach of Community law for which a Member State is liable, the latter is under a duty to make reparation for the loss or damage caused to individuals under the conditions set out in paragraph 51 of the judgment in Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029, but that does not preclude the State from being liable under less restrictive conditions, where national law so provides.
               Where it is established that the legislation of a Member State constitutes an obstacle to freedom of establishment prohibited by Article 43 EC, the national court may, in order to establish the recoverable losses, determine whether the injured parties have shown reasonable diligence in order to avoid those losses or to limit their extent and whether, in particular, they availed themselves in time of all legal remedies available to them. However, in order to prevent the exercise of the rights which Article 43 EC confers on individuals from being rendered impossible or excessively difficult, the national court may determine whether the application of that legislation, coupled, where appropriate, with the relevant provisions of double taxation conventions, would, in any event, have led to the failure of the claims brought by the claimants in the main proceedings before the tax authorities of the Member State concerned.

      (1)  OJ C 57, 5.3.2005.


title: Action brought on 17 April 1996 by Véronique Kohn-Bergé against the Commission of the European Communities (Case T-55/96)

text:
No C 158 / 16        EN                  Official Journal of the European Communities                                      1 . 6 . 96
The applicant points out in that regard that, having been           The applicant claims that the Court should:
denied access to the Commission's premises , apart from the
buildings accommodating the medical service and the                 — annul       the  decision    of   the Selection   Board      for
departments dealing with social matters, she was                        Competition COM/T/C/96 not to admit the applicant to
subsequently requested to attend in her office in order to              the competition tests,
collect her personal belongings . However, after an
appointment had been fixed for that purpose, it became              — order the Commission to pay the costs .
apparent that all of her personal belongings had
disappeared .                                                       Pleas in law and main arguments
The applicant points out not only that there has                    The applicant, a member of the temporary staff in grade C 5 ,
self-evidently been fault on the part of the administration         contests the decision rejecting her application to take part
but also that she has clearly suffered actual loss, and             in Competition COM/T/C/96 on the ground that she
criticizes the Commission's offer as manifestly                     allegedly did not satisfy the length of service requirement of
inadequate .                                                        completion of three years' continuous service with the
                                                                    European Communities as a member of the temporary
                                                                    staff.
                                                                    The applicant puts forward the following pleas in law in
Action brought on 17 April 1996 by Véronique Kohn-Bergé             support of her application :
  against the Commission of the European Communities
                                                                    — infringement of the right of members of the temporary
                      ( Case T-55 /96 )                                 staff to take part in internal competitions, and of the first
                        ( 96/C 158 /39 )                                paragraph of Article 27 and Article 29 ( 1 ) of the Staff
                                                                        Regulations, in so far as the requirement concerning
               (Language of the case: French)                           length of continuous service may lead to the elimination
                                                                        of candidates with qualifications which are the same as,
An action against the Commission of the European                        or better than , those possessed by other candidates who
Communities was brought before the Court of First                       are admitted to the tests,
Instance of the European Communities on 1 7 April 1 996 by
Véronique Kohn-Bergé, residing at Florange ( France ),              — a manifest error of assessment in that it is clear that the
represented by Jean-Noël Louis, Thierry Demaseure and                   applicant has in fact been in the service of the
Ariane Tornel , of the Brussels Bar, with an address for                Commission since 16 October 1991 and , consequently,
service in Luxembourg at the offices of Fiduciare Myson                 had demonstrably acquired three years ' seniority by
SARL , 1 Rue Glesener .                                                 29 September 1995 .


title: Case T-238/07: Action brought on 11 July 2007 — Ristic and Others v Commission

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/42

         Action brought on 11 July 2007 — Ristic and Others v Commission
   (Case T-238/07)
   (2007/C 211/79)
   Language of the case: German
   Parties

      Applicants: Ristic AG (Burgthann, Germany), Piratic Meeresfrüchte Import GmbH (Burgthann, Germany), Prime Catch Seafood GmbH (Burgthann, Germany) and Rainbow Export Processing SA (San José, Costa Rica) (represented by: H. Schmidt, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare Commission Decision of 16 May 2007 (2007/362/EC) void pursuant to the first paragraph of Article 231 EC, to the extent that it amended Decision 2004/432/EC to the effect that, in the annex to that decision Costa Rica is no longer listed with its ISO-2-Code in the first column, its name in the second column and an ‘X’ in the eighth column to indicate that in accordance with Decision 2004/432/EC animals from aquaculture and products of animal origin from aquaculture may be imported from Costa Rica into the European Union;

               —

               hold accordingly that reason that the European Community is obliged to compensate the applicants for the damage caused to them as a result of the Commission's decision;

               —

               order the Commission to pay the applicant's necessary costs in accordance with Article 87(2) of the Rules of Procedure of the Court of First Instance.

         Pleas in law and main arguments
   The applicants contest Commission Decision 2007/362/EC (1), because Costa Rica was deleted by that decision from the list of third countries of which the residue monitoring plans were approved in respect of animals from aquaculture and products of animal origin from aquaculture.
   The applicants are undertakings which are engaged in particular in the processing and marketing of shrimps from aquaculture in Costa Rica and Equador. They claim that the contested decision is of both direct and individual concern to them within the meaning of the fourth paragraph of Article 230 EC.
   In support of their action the applicants claim in particular that the contested decision is unlawful because it infringes the principle of proportionality. They also complain of infringement of the right to a fair hearing and misuse of powers by the defendant.

      (1)  2007/362/EC: Commission Decision of 16 May 2007 amending Decision 2004/432/EC on the approval of residue monitoring plans submitted by third countries in accordance with Council Directive 96/23/EC (notified under document number C(2007) 2088) (OJ 2007 L 138, p. 18).


15.6.2002               EN                   Official Journal of the European Communities                                     C 144/29
Pleas in law and main arguments                                                Removal from the register of Case C-233/99 (1)
                                                                                (2002/C 144/50)
—     Incorrect legal basis and lack of competence of the
      Commission: The contested regulation has as its legal
      basis Article 45(1) of Council Regulation (EC) No 850/98
      for the conservation of fishery resources through techni-
                                                                        By order of 21 March 2002 the President of the Court of
      cal measures for the protection of juveniles of marine
                                                                        Justice of the European Communities ordered the removal
      organisms. That provision confers on the Commission
                                                                        from the register of Case C-233/99 (Reference for a preliminary
      limited legislative power which that institution may use
                                                                        ruling by Københavns Byret): Anklagemyndigheden (Public
      only in such cases and under such conditions as provided
                                                                        Prosecution Department) v Tonny Haugsted Hansen.
      in that provision, whilst general power to legislate in the
      matter of fisheries resides with the Council in accordance
      with the procedure laid down in Article 37 EC. In the
      present case, the Commission refers to a report of                (1) OJ C 246 of 28.8.1999.
      November 2000 by the International Council for the
      Exploration of the Sea and to Regulation No 1162/2001
      (which, in the Commission’s own words ‘cannot produce
      any effect whatsoever’ — see OJ L 47 of 19.2.2002,
      p. 21). No other data are produced to substantiate the
      statement made on 19 March that conservation of hake
      resources in the ICES areas affected required immediate
      action by the Commission.
                                                                               Removal from the register of Case C-369/99 (1)
—     Breach of the principle of non-discrimination:
                                                                                (2002/C 144/51)
—     Lack of a statement of reasons
                                                                        By order of 19 March 2002 the President of the Court of
The main arguments put forward in support of the last two
                                                                        Justice of the European Communities ordered the removal
pleas are similar to those in Case C-304/01 (2).
                                                                        from the register of Case C-369/99: Kingdom of Spain v
                                                                        Commission of the European Communities.
(1) OJ L 77, p. 8 of 20.3.2002.
(2) OJ C 289 of 13.10.2001, p. 15.                                      (1) OJ C 6 of 8.1.2000.
        Removal from the register of Case C-61/99 (1)                          Removal from the register of Case C-407/99 (1)
                          (2002/C 144/49)                                                        (2002/C 144/52)
By order of 8 February 2002 the President of the Court of               By order of 11 December 2001 the President of the Court of
Justice of the European Communities ordered the removal                 Justice of the European Communities ordered the removal
from the register of Case C-61/99 (Referral for a preliminary           from the register of Case C-407/99 (Referral for a preliminary
ruling by the Landgericht Mainz): Deutsche Post AG v Landal             ruling by the Bundessozialgericht): Vetharanigam Pathminidevi
Green Parks GmbH.                                                       v Landeskreditbank Baden-Württemberg — Förderbank.
(1) OJ C 121 of 1.5.1999.                                               (1) OJ C 34 of 5.2.2000.


7.3.98               EN               Official Journal of the European Communities                                 C 72/15
      Removal from the register of Case C-286/97 (1)                    Removal from the register of Case C-26/95 (1)
                         (98/C 72/31)                                                     (98/C 72/34)
By order of 17 November 1997 the President of the Court          By order of 26 November 1997 the President of the Court
of Justice of the European Communities has ordered the           of Justice of the European Communities has ordered the
removal from the register of Case C-286/97: Commission           removal from the register of Case C-26/95 (reference for a
of the European Communities v. Portuguese Republic.              preliminary ruling from the Pretura Circondariale di
                                                                 Terni): Criminal proceedings against Ivana Rosi.
(1) OJ C 295, 27.9.1997.
                                                                 (1) OJ C 74, 25.3.1995.
      Removal from the register of Case C-141/97 (1)
                         (98/C 72/32)                                   Removal from the register of Case C-49/97 (1)
                                                                                (98/C 72/35)
By order of 20 November 1997 the President of the Court
of Justice of the European Communities has ordered the
removal from the register of Case C-141/97: Commission           By order of 1 December 1997 the President of the Court
of the European Communities v. Italian Republic.                 of Justice of the European Communities has ordered the
                                                                 removal from the register of Case C-49/97: Commission of
(1) OJ C 181, 14.6.1997.                                         the European Communities v. French Republic.
                                                                 (1) OJ C 108, 5.4.1997.
       Removal from the register of Case C-88/97 (1)
                         (98/C 72/33)
                                                                       Removal from the register of Case C-227/97 (1)
                                                                                (98/C 72/36)
By order of 24 November 1997 the President of the Court
of Justice of the European Communities has ordered the
removal from the register of Case C-88/97: Commission of         By order of 1 December 1997 the President of the Court
the European Communities v. Portuguese Republic.                 of Justice of the European Communities has ordered the
                                                                 removal from the register of Case C-227/97: Commission
(1) OJ C 108, 5.4.1997.                                          of the European Communities v. Portuguese Republic.
                                                                 (1) OJ C 228, 26.7.1997.


title: Case T-1/07: Action brought on 2 January 2007 — Apache Footwear and Apache II Footwear v Council

text:
               10.3.2007

               EN

               Official Journal of the European Union

               C 56/30

         Action brought on 2 January 2007 — Apache Footwear and Apache II Footwear v Council
   (Case T-1/07)
   (2007/C 56/60)
   Language of the case: English
   Parties

      Applicants: Apache Footwear Ltd (Guangzhou, China) and Apache II Footwear Ltd (Qingyuan, China) (represented by: O. Prost and S. Ballschmiede, lawyers)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul Article 1 of Council Regulation (EC) No 1472/2006 of 5 October 2006 (1), imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of certain footwear with uppers of leather originating in the People's Republic of China and Vietnam as long as it imposes 16.5 % duty on imports of products manufactured by the applicant;

               —

               ask the Council to pay the costs.

         Pleas in law and main arguments
   By the present application, the applicants seek partial annulment, pursuant to Article 230(4) EC, of the contested regulation to the extent that it imposes definitive anti-dumping duties on their imports into the European Union.
   The applicants advance three pleas in law in support of their claims:
   First, the applicants submit that the Council, when examining whether the applicants met the criteria to be granted Market Economy Treatment (‘MET’), pursuant to Article 2(7)(b) and (c) of Regulation (EC) No 384/96 (hereinafter, ‘the Basic Regulation’), violated the latter, as well as its obligation of motivation under Article 253 EC, insofar as it allegedly failed to examine whether the applicants were subject to significant state interference.
   Second, the applicants claim that the Council, by refusing to take into account certain additional key information, violated its obligation of due diligence and proper administration, and consequently made a manifest error of appraisal.
   Third, the applicants contend that the Council by refusing to exclude children's footwear from the scope of the measures at the stage of the definitive regulation, violated Article 21 of the Basic Regulation, its obligation of motivation under Article 253 EC and made a manifest error of appraisal.

      (1)  OJ L 275, 2006, p. 1.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 12 August 1998 in Case T-42/98 R: Maria Paola Sabbatucci v. European Parliament (Application for interim measures - Amicable settlement - Binding nature - Mandatory removal from the register - Conditions)

text:
C 340/22             EN                  Official Journal of the European Communities                                   7.11.98
at Cesena (Italy), represented by Carlo Piccoli and                 1. the application is dismissed as inadmissible.
Fabrizio Fabbri, of the Forlì-Cesena Bar, and FrancËois
Turk, of the Luxembourg Bar, with an address for service            2. the applicant shall bear the whole of the costs.
in Luxembourg at the latter's Chambers, 13a Avenue
Guillaume, v. Commission of the European Communities                (1) OJ C 137 of 2.5.1998.
(Agent: Francesco P. Ruggeri Laderchi) Ð application for
partial annulment of Commission Regulation (EC)
No 1488/97 of 29 July 1997 amending Council
Regulation (EEC) No 2092/91 on organic production of
agricultural products and indications referring thereto on
                                                                                ORDER OF THE PRESIDENT
agricultural products and foodstuffs (OJ L 202 of
                                                                              OF THE COURT OF FIRST INSTANCE
30.7.1997, p. 12) Ð the Court of First Instance (First
Chamber), composed of: B. Vesterdorf, President, and                                      of 12 August 1998
R. M. Moura Ramos and P. Mengozzi, Judges; H. Jung,                 in Case T-42/98 R: Maria Paola Sabbatucci v. European
Registrar, made an order on 9 September 1998, the                                              Parliament
operative part of which is as follows:
                                                                    (Application for interim measures Ð Amicable settlement
                                                                    Ð Binding nature Ð Mandatory removal from the
1. the application is dismissed as inadmissible;
                                                                                register Ð Conditions)
                                                                                (98/C 340/44)
2. the applicants are to pay the costs.                                             (Language of the case: Italian)
                                                                    In Case T-42/98 R: Maria Paola Sabbatucci, an official of
(1) OJ C 387 of 20.12.1997.                                         the European Parliament, residing in Luxembourg,
                                                                    represented by Alberto Dal Ferro and Andrea Cevese, of
                                                                    the Vicenza Bar, with an address for service at the
                                                                    Chambers of Mr Morresi, 67 Avenue des Nerviens,
                                                                    Brussels, v. European Parliament (Agents: Antonio Caiola
                                                                    and Evelyn Waldherr) Ð application for interim measures
                                                                    made pursuant to Article 91(4) of the Staff Regulations of
     ORDER OF THE COURT OF FIRST INSTANCE                           officials of the European Communities and in accordance
                      (Fourth Chamber)                              with Articles 185 and 186 of the EC Treaty Ð the
                                                                    President of the Court of First Instance made an order on
                    of 17 September 1998                            12 August 1998, the operative part of which is as follows:
in Case T-40/98: Giuliano Pagliarani v. Commission of               1. Case T-42/98 R is removed from the register.
                the European Communities (1)
                                                                    2. The costs are reserved.
(Officials Ð Determination of grade Ð New facts Ð Not
                         permissible)
                        (98/C 340/43)
               (Language of the case: French)                       Action brought on 23 July 1998 by Dolores Rodriguez
                                                                    PeÂrez, Francisco Andrada Sanz, Pablo FernaÂndez Ruiz,
                                                                    Fabriciano Corchete Vicente, Antonio Oliva EspanÄol,
In Case T-40/98: Giuliano Pagliarani, member of the                 Miguel Alay Marcos, Geraldine O'Shea, Ana Luisa
temporary staff of the Commission of the European                   Muller, Alfonso Novoa Diz, Ernesto PeÂrez Carbonell,
Communities, residing in Brussels, represented by Mario             Alfredo Escribano Martínez, Soledad Blanco Mangudo,
Spandre and Claudio Mereu, of the Brussels Bar, with an             Enrique Rojas de Montis, Joan Antoni Salmurri Trintxet,
address for service in Luxembourg at the Chambers of Mr             Federica Burel Louberry, Elena Frutos Zamarrón, Rafael
Thielen, 21 rue de Nassau, against Commission of the                Aguirre Unceta, Manuel Parejo Pagador, Pablo Pardo
European Communities (Agents: Gianluigi Valsesia and                Ortiz, Santiago Vazquez Souto, Concepción Sanmartín
Christine Berardis-Kayser) Ð application for, first, the            Quintela, Saturnino DuraÂn Vidal, Luis Guembe Casi and
annulment of the decision of the appointing authority of            Alfonso Ruiz de AzuÂa CastanÄo against the Commission of
28 October 1993 classifying the applicant in Grade B 3                                the European Communities
step 3 and of the decision of the appointing authority of                                  (Case T-114/98)
8 December 1997 rejecting the applicant's complaint
                                                                                (98/C 340/45)
inasmuch as it does not take account of certified
professional experience and, secondly, a claim for                                 (Language of the case: Spanish)
compensation for material damage allegedly suffered by
the applicant as a result of those decisions Ð the Court of         An action against the Commission of the European
First Instance (Fourth Chamber), composed of: P. Lindh,             Communities was brought before the Court of First
President, K. Lenaerts and J. D. Cooke, Judges; H. Jung,            Instance of the European Communities on 23 July 1998
Registrar, made an order on 17 September 1998, the                  by Dolores Rodriguez PeÂrez, Francisco Andrada Sanz,
operative part of which is as follows:                              Pablo FernaÂndez Ruiz, Fabriciano Corchete Vicente,


title: Reference for a preliminary ruling from the Oberster Gerichtshof by order of that court of 10 June 1997 in the case of Wrangler Germany GmbH v. Metro Selbstbedienungs-Großhandel GmbH (Case C-278/97)

text:
27 . 9 . 97           EN                 Official Journal of the European Communities                                    C 295/ 19
The applicant claims that the Court should :                        resources base is thereby reduced, the Community must be
                                                                    credited with the equivalent of the amount of own
                                                                    resources due, by reason of the infringement, for the
— declare that, by failing to subject to value added tax            period in question . The Community would otherwise
     motorway tolls as consideration for the service                suffer a financial loss to be compensated via GNP
     supplied to users, contrary to Articles 2 and 4 of the         resources . The infringement would thereby cause the other
     Sixth Council Directive 77/388/EEC of 17 May                   Member States financial damage; the principle of equal
     1977 ('), the French Republic has failed to fulfil its         treatment would no longer be complied with.
     obligations under the Treaty establishing the European
     Community,
                                                                    It observes that certain Member States such as Italy, Spain
— declare that, by failing to make the corresponding                and Portugal have, unlike the French Government, always
     sums, with interest for late payment, available to the         paid over the own resources corresponding to those
     Commission as own resources, the French Republic               supplies of services, and that the Netherlands, although
     has failed to fulfil its obligations under the Treaty          contesting the Commission's interpretation in the context
     establishing the European Community,                           of proceedings for failure to fufil obligations, has paid
                                                                    over the own resources in question ' subject to the decision
                                                                    of the Court of Justice'. The fact that the French
— order the French Republic to pay the costs .                      authorities have not paid over the contributions
                                                                    corresponding to those supplies of services amounts to a
                                                                    difference in treatment which runs counter to the rules for
Pleas in law and main arguments adduced in support:                 financing the Community budget and seriously
                                                                    compromises the uniform application of those rules
( On the taxation of motorway tolls )                               regarding own resources based on Community VAT.
According to the Commission, the making available of                (') OJ L 145 , 13 . 6 . 1977, p . 1 .
                                                                    ( 2 ) OJ L 155 , 7 . 6 . 1989 , p . 1 .
highway infrastructure constitutes an economic activity             (') OJ L 336 , 27 . 12 . 1977 , p . 1
within the meaning of Articles 2 and 4 of the Sixth VAT
Directive. Under Article 4 ( 5 ) of that Directive, the only
activities in respect of which bodies governed by public
law are not to be considered taxable persons are those
which fall strictly within the performance of the functions
of a public authority. Users are not obliged to use the toll
network, however. The fact that motorists individually
agree to make a payment to use a highway network or                 Reference for a preliminary ruling from the Oberster
certain infrastructure is indicative of the fact that that          Gerichtshof by order of that court of 10 June 1997 in
payment corresponds to a service which they receive in              the case of Wrangler Germany GmbH v. Metro
order to enjoy the right to use the infrastructure in                             Selbstbedienungs-GrofShandel GmbH
question . The legal classification of a transaction in the                                      ( Case C-278/97 )
context of the Sixth VAT Directive is independent of the
legal classification it may be given in the various national                                       ( 97/C 295/29 )
laws .
In so far as the French authorities consider that the               Reference has been made to the Court of Justice of the
services supplied by the concessionary are supplied to the          European Communities by an order of the Oberster
State, not to the economic operators who use the                    Gerichtshof (Austrian Supreme Court ) of 10 June 1997,
infrastructure, it is impossible for those operators to             which was received at the Court Registry on 30 July 1997,
deduct the tax which is included as a residual amount in            for a preliminary ruling in the case of Wrangler Germany
the toll paid .                                                     GmbH v. Metro Selbstbedienungs-GroShandel GmbH on
                                                                    the following questions:
 ( On the own resources question )
                                                                     Is Article 7 ( 1 ) of the First Council Directive 89/ 104/EEC
                                                                     of 21 December 1988 to approximate the laws of the
It follows from Articles 1 and 2 ( 1 ) of Council Regulation
                                                                    Member States relating to trade marks ( OJ L 40, 11 . 2 .
 ( EEC, Euratom ) No 1553/89 (2 ) ( and the corresponding
provisions of Council Regulation ( EEC, Euratom, ECSC )              1989, p. 1 , ' the Trade Mark Directive') to be interpreted
No 2892/77 ( } ) which it replaced ) that the own resources          as meaning that the trademark entitles its proprietor to
corresponding to receipts from VAT are to be made
                                                                     prohibit a third party from using the mark for goods
                                                                    which have been put on the market under that mark in a
available by the Member State in which the VAT has been
                                                                     State which is not a Contracting State ?
charged .
The      Commission    considers that   where    there  is  an       May the proprietor of the trade mark on the basis of
 infringement of the Sixth VAT Directive and the VAT                 Article 7 ( 1 ) of the Trade Mark Directive alone seek an
 ---pagebreak--- C 295/20                EN                     Official Journal of the European Communities                                  27. 9 . 97
order that the third party cease using the trademark for                  München ( Labour Court, Munich ) of 3 July 1997, which
goods which have been put on the market under that                        was received at the Court Registry on 1 August 1997, for
mark in a State which is not a Contracting State ?                        a preliminary ruling in the case of Andrea Krüger v.
                                                                          Kreiskrankenhaus Ebersberg on the following question :
                                                                          Is a rule of national law — in this case Paragraph 3n of
                                                                          the Bundesangestelltentarifvertrag ( federal employees'
                                                                          collective agreement, 'BAT') in conjunction with the
Reference for a preliminary ruling from the Finanzgericht                 Zuwendungs-TV ( collective agreement on allowances ) of
Düsseldorf by order of that court of 22 July 1997 in the                  12 October 1993 — compatible with Directive 76/207/
case    of   Rose    Elektrotechnik GmbH &              Co  KG    v.      EEC on the implementation of the principle of equal
                     Oberfinanzdirektion Köln                             treatment for men and women as regards access to
                         ( Case C-280/97 )                                employment, vocational training and promotion, and
                                                                          working conditions ('), and with Article 119 of the EC
                             ( 97/C 295/30 )                              Treaty, if it provides that workers who exercise an activity
                                                                          which is not subject to compulsory social insurance during
                                                                          child-care leave , by contrast with workers liable to
Reference has been made to the Court of Justice of the                    compulsory social insurance, do not receive an annual
European Communities by an order of the Fourth Senate                     special allowance under the relevant collective agreement ?
of the Finanzgericht Düsseldorf ( Finance Court,                          Is that rule compatible with the above provisions in
Düsseldorf) of 22 July 1997, which was received at the                    particular if workers who are on child-care leave but are
Court Registry on 1 August 1997, for a preliminary ruling                 not working nevertheless receive the special allowance
in the case of Rose Elektrotechnik GmbH & Co KG v.
                                                                          under the collective agreement in the first year ?
Oberfinanzdirektion Köln on the following questions :
                                                                          (') OJ L 39 , 14 . 2 . 1976 , p . 40 .
 1.  Is the Common Customs Tariff in the version in
     Annex I to Commission Regulation ( EC ) No 1734/96
     of 9 September 1996 amending Annex I to Council
     Regulation ( EEC ) No 2658/87 on the tariff and
     statistical nomenclature and on the Common Customs
     Tariff (')   ( combined         nomenclature    1997 )  to   be
     interpreted as meaning that an article described as a                Action brought on 1 August 1997 by the Commission of
     junction box and consisting of a rectangular container                  the European Communities against the French Republic
     with lid of coated die-cast aluminium ( aluminium/                                              ( Case C-282/97 )
     silicon alloy with aluminium content predominant by
     weight ) with four steel connecting bolts and four                                                 ( 97/C 295/32 )
     earthing bolts of copper-plated steel ( packed loose in
     the article and yet to be inserted into threaded holes
     provided for that purpose ) is to be classified under                 An action against the French Republic was brought before
     heading No 8538 ?                                                     the Court of Justice on 1 August 1997 by the Commission
                                                                           of the European Communities, represented by Fernando
                                                                           Castillo de la Torre, of its Legal Service, and O. Couvert-
 2 . If the answer to Question 1 is negative : Is the
                                                                           Castera, a national civil servant on secondment to that
     Common Customs Tariff ( Combined Nomenclature
                                                                           service, acting as Agents, with an address for service in
      1997) to be interpreted as meaning that such an                      Luxembourg at the office of Carlos Gomez de la Cruz,
     Article is to be classified, applying the first sentence of
                                                                           Wagner Centre , Kirchberg.
      General Rule 2(a ) for the interpretation of the
      Combined Nomenclature, under heading No 8536 ?
                                                                           The Commission of the European Communities claims
 H OJ L 238 , 19 . 9 . 1996 , p. 1 .                                       that the Court should :
                                                                           — declare that, by failing to adopt witin the period
                                                                                prescribed the laws, regulations and administrative
                                                                                provisions necessary to comply with Council Directive
                                                                                92/73/EEC (') of 22 September 1992 widening the
 Reference for a preliminary ruling from the Arbeitsgericht                     scope of Directives 65/65/EEC (2 ) and 75/319/EEC ( 3 )
 München by order of that court of 3 July 1997 in the case                      on the approximation of provisions laid down by
       of Andrea Krüger v. Kreiskrankenhaus Ebersberg                           law, regulation or administrative action relating to
                           ( Case C-281/97)                                     medicinal products and laying down additional
                                                                                provisions on homeopathic medicinal products, the
                               ( 97/C 295/31 )                                  French Republic has failed to fulfil its obligations
                                                                                under the EC Treaty and that Directive,
 Reference has been made to the Court of Justice of the
 European Communities by an order of the Arbeitsgericht                     — order the French Republic to pay the costs.


C 122/16               EN                    Official Journal of the European Communities                                    29.4.2000
Action brought on 29 February 2000 by the Commission                           Removal from the register of Case C-373/98 (1)
         of the European Communities against Ireland
                                                                                (2000/C 122/30)
                         (Case C-70/00)
                        (2000/C 122/28)                                 By order of 13 January 2000 the President of the Court of
                                                                        Justice of the European Communities has ordered the removal
An action against Ireland was brought before the Court of               from the register of Case C-373/98: Commission of the
Justice of the European Communities on 29 February 2000 by              European Communities v French Republic.
the Commission of the European Communities, represented
by Mr Michael Shotter, a member of its Legal Service, acting as
agent, with an address for service at the office of Mr Carlos
Gómez de la Cruz, a member of its Legal Service, at the                (1) OJ C 378 of 5.12.1998.
Wagner Centre, Kirchberg, Luxembourg.
The Applicant claims that the Court should:
— declare that by failing to adopt the laws, regulations
     or administrative provisions necessary to comply with
     Commission Directive 98/36/EC (1) of 2 June 1998
     amending Directive 96/5/EC on processed cereal-based
     foods and baby foods and baby foods for infants and
     young children (2) or, an any event, by failing to inform the             Removal from the register of Case C-161/99 (1)
     Commission of those measures, Ireland has failed to fulfil
     its obligations under that Directive; and,
                                                                                (2000/C 122/31)
— order Ireland to pay the costs.
                                                                        By order of 13 January 2000 the President of the Court of
                                                                        Justice of the European Communities has ordered the removal
Pleas in law and main arguments
                                                                        from the register of Case C-161/99: Commission of the
                                                                        European Communities v Italian Republic.
Article 249 EC (ex Article 189 of the EC Treaty) under which
a directive shall be binding as to the result to be achieved,
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance               (1) OJ C 188 of 3.7.1999.
laid down in the directive. That period expired on 31 December
1998 without Ireland having enacted the provisions necessary
to comply with the directive referred to in the conclusions of
the Commission.
(1) OJ L 167, 12.06.1998, p. 23.
(2) Commission Directive 96/5/EC, Euratom of 16 February 1996,
    OJ L 049, 28.02.1996, p. 17.
                                                                               Removal from the register of Case C-149/99 (1)
                                                                                (2000/C 122/32)
        Removal from the register of Case C-360/98 (1)                  By order of 14 January 2000 the President of the Court of
                                                                        Justice of the European Communities has ordered the removal
                        (2000/C 122/29)                                 from the register of Case C-149/99 (reference for a preliminary
                                                                        ruling from the Verwaltungsgerichtshof): Johannes Blachnitzky
By order of 13 January 2000 the President of the Court of               v Landes-Grundverkehrskommission beim Amt der Tiroler
Justice of the European Communities has ordered the removal             Landesregierung.
from the register of Case C-360/98 (reference for a preliminary
ruling from the Conseil de Prud’hommes de Bobigny): Bernard
Bauduin and Laurent Blondeau v SA Renault.
                                                                        (1) OJ C 188 of 3.7.1999.
(1) OJ C 358 of 21.11.1998.


title: Case T-262/99: Action brought on 28 October 1999 by Anthony Goldstein against the Commission of the European Communities

text:
5.2.2000              EN                     Official Journal of the European Communities                                       C 34/25
(b) order the Commission to pay the costs.                              nomic and legal information necessary to assist the national
                                                                        court in the application of the Community competition rules.
                                                                        The applicant considers that the Commission’s reply to
Pleas in law and main arguments                                         the Court’s request was inadequate because the information
                                                                        provided by it is totally devoid of any factual and legal
                                                                        assessment of the rules applicable to specialist medical prac-
The pleas in law and main arguments are the same as in Case             titioners trained and established in the United Kingdom and
T-237/99.                                                               whether or not the legal conditions are satisfied for the
                                                                        application by the national court of the prohibitions contained
                                                                        in Articles 85 and 86 of the EC Treaty (now Articles 81 and
(1) OJ L 280 of 30.10.1999, p. 87.
                                                                        82 EC) to the anti-competitive practices of the GMC.
                                                                        The applicant claims therefore that the Commission is guilty
                                                                        of misuse of powers in so far as it has concealed from the
                                                                        national court and from the parties to the proceedings before
                                                                        the national court the nature and extent of the factual and
Action brought on 28 October 1999 by Anthony Gold-                      legal information it may be able to supply to national court
stein against the Commission of the European Communi-                   under the principle of active and sincere cooperation pursuant
                               ties                                     to Article 5 of the EC Treaty (now Article 10 EC) and failed to
                                                                        take all steps necessary within its power, in breach of the
                                                                        principle of good faith, to ensure all relevant documents are
                        (Case T-262/99)                                 produced to the national court and to the parties and its
                                                                        officials are authorised to give evidence in the national
                         (2000/C 34/48)                                 proceedings. He further claims that the Commission is guilty
                                                                        of breach of the principle of protection of legitimate expec-
                                                                        tations and breach of the principle of legal certainty.
                  (Language of the case: English)
An action against the Commission of the European Communi-               The applicant submits that as a direct consequence of the
ties was brought before the Court of First Instance of the              conduct alleged the national court was not in a position to
European Communities on 28 October 1999 by Anthony                      determine whether the conditions for the application of the
Goldstein, represented by Raymond St John Murphy, Solicitor,            prohibitions contained in Articles 85 and 86 of the EC
of Merriman White Solicitors, 61 Fleet Street, London EC4Y              Treaty were satisfied. This meant that the national court was
1JU, United Kingdom.                                                    effectively prohibited from adopting all necessary measures
                                                                        forthwith to terminate the anti-competitive conduct of the
The applicant claims that the Court should:                             GMC.
— order the defendant to supply the factual and legal
    information requested by the national court under Article 5
    of the EC Treaty (now Article 10 EC);                               Finally, the applicant asserts that the Commission’s action
                                                                        caused him to sustain damage which consists of non-material
                                                                        damage for harm to his professional reputation as a specialist
— order the defendant to pay damages in the amount of
                                                                        medical practitioner recognised at Community level as a result
    EUR 100 000 to the applicant;
                                                                        of the publication to all registered medical practitioners in the
                                                                        United Kingdom of a fact sheet by the GMC containing
— order the amount of damages to bear default interest at the           information misrepresenting the legal status of specialist
    annual rate of 4,5 per cent from the date of the judgment           medical practitioners whose names appear on the Specialist
    until actual payment;                                               List, including the applicant, contrary to Directive 84/450 in
                                                                        so far as it implies that those practitioners are not specialist
— order the defendant to bear its own costs and to pay those            medical practitioners and furthermore that they are engaged
    of the applicant.                                                   in the illegal pursuit of a regulated profession.
Pleas in law and main arguments
                                                                        (1) OJ 1993 C 39, p. 6.
The applicant explains that in the context of his action against
the General Medical Council (GMC), the High Court made an
order pursuant to the Notice on Co-operation between national
courts and the Commission in applying Articles 85 and 86
of the EC Treaty (1), requiring the Directorate-General for
Competition of the European Commission to provide eco-