title: Case T-141/00: Action brought on 25 May 2000 by Laboratoires Pharmaceutiques Trenker S.A. against the Commission of the European Communities

text:
12.8.2000              EN                     Official Journal of the European Communities                                      C 233/31
Action brought on 25 May 2000 by Laboratoires Pharma-                    (b) Breach of the principle of proportionality, inasmuch as
ceutiques Trenker S.A. against the Commission of the                          the Commission is now ordering the withdrawal of the
                    European Communities                                      marketing authorisations despite the fact that there is no
                                                                              new scientific evidence indicating that the measures taken
                                                                              by the Commission in its previous decision, dated
                         (Case T-141/00)                                      9 December 1996, were incapable of achieving the
                                                                              desired objective.
                         (2000/C 233/58)
                                                                         (c)  Infringement of Directive 75/318/EEC on the approxima-
                                                                              tion of the laws of Member States relating to analytical,
                   (Language of the case: French)                             pharmaco-toxicological and clinical standards and proto-
                                                                              cols in respect of the testing of proprietary medicinal
An action against the Commission of the European Communi-                     products (2), as amended by Commission Directive
ties was brought before the Court of First Instance of the                    1999/83/EC of 8 September 1999 (3), according to which
European Communities on 25 May 2000 by Laboratoires                           the constituents of a medicinal product are deemed to
Pharmaceutiques Trenker S.A., having its registered office in                 have a well established medicinal use, with an acceptable
Brussels, represented by Xavier Leurquin and Lucette Defalque,                level of safety and recognised efficacy, where the marke-
of the Brussels Bar.                                                          ting of the product in question has been authorised for at
                                                                              least ten years.
The applicant claims that the Court should:
                                                                              The approach taken by the contested decision is that the
—     declare null and void the Commission’s decision of                      risk/benefit ratio of amfepramone is negative, having
      9 March 2000;                                                           regard to the new evaluation criteria applied by the
                                                                              Committee for Proprietary Medicinal Products of the
                                                                              European Agency for the Evaluation of Proprietary Medi-
—     order the defendant to pay the costs.                                   cinal Products, although the marketing of the applicant’s
                                                                              medicinal products containing amfepramone has been
                                                                              authorised in Belgium for over ten years and they thus
Pleas in law and principal arguments                                          have a well established medicinal use within the meaning
                                                                              of the directive referred to above, without it being
                                                                              possible to assess their efficacy and their therapeutic
The applicant contests Commission Decision C(2000) 453                        effect in the light of any new evaluation criteria.
of 9 March 2000 concerning the withdrawal of marketing
authorisations of medicinal products for human use which
contain the substance ‘amfepramone’.                                     (d) Violation of the fundamental principles of legal certainty
                                                                              and non-retroactivity, inasmuch as the Committee for
                                                                              Proprietary Medicinal Products, in its findings, and the
In support of its application, the applicant pleads:                          Commission, in adopting those findings, referred to new
                                                                              guidelines and applied them to old medicinal products.
(a)   Infringement of Article 15a of Council Directive 75/319/-
      EEC of 20 May 1975 on the approximation of provisions
      laid down by law, regulation or administrative action              (e)  Infringement of essential procedural requirements,
      relating to proprietary medicinal products (1).                         inasmuch as the contested decision:
      The applicant maintains that, contrary to what is stated in
      the decision at issue, Article 15a of Directive 75/319/EEC              —     does not comply with the obligation to provide a
      cannot constitute the proper legal basis for that decision,                   statement of reasons;
      inasmuch as neither of the two criteria laid down in that
      provision as conditions for its applicability is fulfilled in
      the present case.                                                       —     was adopted without regard for the applicant’s right
                                                                                to be heard;
      The applicant states in that regard, first, that Article 15a
      concerns marketing authorisations which are granted in                  —     was adopted following an unlawful procedure.
      pursuance of the mutual recognition procedure (whereby
      an authorisation originally granted by one Member State
      is subsequently recognised in another Member State),               (1) OJ 1975 L 147, p. 13.
      whereas the marketing authorisations which have been               (2) OJ 1975 L 147, p. 1.
      granted to the applicant are purely national authorisa-            (3) OJ 1999 L 243, p. 9.
      tions, and, second, that it has not been established in any
      way that the withdrawal of the medicinal product in issue
      was necessary in order to protect public health.


title: Judgment of the Court (Fifth Chamber) 21 March 2002 in Case C-267/00 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Queen's Bench Division (Crown Office)): Commissioners of Customs and Excise v Zoological Society of London (Sixth VAT Directive — Article 13A(2)(a), second indent — Exempt transactions — Bodies managed and administered on a voluntary basis)

text:
18.5.2002                EN                      Official Journal of the European Communities                                          C 118/13
1.    Declares that, by maintaining in force, in Article 207 of the         F. Macken and N. Colneric (Presidents of Chambers), A. La
      Italian highway code, a disproportionate difference in treatment      Pergola, J.P. Puissochet, M. Wathelet, R. Schintgen (Rapporteur)
      between offenders based on the place of registration of their         and V. Skouris, Judges; S. Alber, Advocate General; R. Grass,
      vehicles, the Italian Republic has failed to fulfil its obligations   Registrar, has given a judgment on 19 February 2002, in
      under Article 6 of the EC Treaty (now, after amendment,               which it has ruled:
      Article 12 EC);
2.    Orders the Italian Republic to pay the costs.                         The special jurisdictional rule in matters relating to a contract, laid
                                                                            down in Article 5(1) of the Convention of 27 September 1968 on
                                                                            Jurisdiction and the Enforcement of Judgments in Civil and Commer-
(1) OJ C 247 of 26.8.2000.                                                  cial Matters, as amended by the Convention of 9 October 1978 on
                                                                            the Accession of the Kingdom of Denmark, Ireland and the United
                                                                            Kingdom of Great Britain and Northern Ireland, is not applicable
                                                                            where, as in the present case, the place of performance of the
                                                                            obligation in question cannot be determined because it consists in an
                                                                            undertaking not to do something which is not subject to any
                                                                            geographical limit and is therefore characterised by a multiplicity of
                                                                            places for its performance. In such a case, jurisdiction can be
                  JUDGMENT OF THE COURT                                     determined only by application of the general criterion laid down in
                                                                            the first paragraph of Article 2 of that Convention.
                          19 February 2002
                                                                            (1) OJ C 233 of 12.8.2000.
in Case C-256/00 (Reference for a preliminary ruling from
the Cour d’appel de Bruxelles): Besix SA v Wasserreini-
gungsbau Alfred Kretzschmar GmbH & Co. KG (WAB-
AG), Planungs- und Forschungsgesellschaft Dipl. Ing.
        W. Kretzschmar GmbH & Co. KG (Plafog) (1)
(Brussels Convention — Article 5(1) — Jurisdiction in
matters relating to a contract — Place of performance of the
obligation in question — Obligation not to do something,
applicable without geographical limit — Undertakings given
by two companies not to bind themselves to other partners                                    JUDGMENT OF THE COURT
when tendering for a public contract — Application of
                              Article 2)
                                                                                (Fifth Chamber)
                           (2002/C 118/19)
                                                                                21 March 2002
                     (Language of the case: French)
                                                                            in Case C-267/00 (Reference for a preliminary ruling from
(Provisional translation; the definitive translation will be published      the High Court of Justice (England & Wales), Queen’s
                    in the European Court Reports)                          Bench Division (Crown Office)): Commissioners of Cus-
                                                                                toms and Excise v Zoological Society of London (1)
In Case C-256/00: Reference to the Court under the Protocol                 (Sixth VAT Directive — Article 13A(2)(a), second indent —
of 3 June 1971 on the interpretation by the Court of Justice of             Exempt transactions — Bodies managed and administered
the Convention of 27 September 1968 on Jurisdiction and the                                        on a voluntary basis)
Enforcement of Judgments in Civil and Commercial Matters
by the Cour d’Appel de Bruxelles (Belgium) for a preliminary
ruling in the proceedings pending before that court between
                                                                                (2002/C 118/20)
Besix SA and Wasserreinigungsbau Alfred Kretzschmar GmbH
& Co. KG (WABAG), Planungs- und Forschungsgesellschaft
Dipl. Ing. W. Kretzschmar GmbH & Co. KG (Plafog), on
the interpretation of Article 5(1) of the aforementioned                                       (Language of the case: English)
Convention of 27 September 1968 (OJ 1972 L 299, p. 32), as
amended by the Convention of 9 October 1978 on the
Accession of the Kingdom of Denmark, Ireland and the United
Kingdom of Great Britain and Northern Ireland (OJ 1978
L 304, p. 1 and — amended version - p. 77), the Court,                      In Case C-267/00: Reference to the Court under Article 234
composed of: G.C. Rodrı́guez Iglesias, President, P. Jann,                  EC by the High Court of Justice of England and Wales, Queen’s
 ---pagebreak--- C 118/14               EN                       Official Journal of the European Communities                                            18.5.2002
Bench Division (Crown Office), for a preliminary ruling in the                                JUDGMENT OF THE COURT
proceedings pending before that court between Com-
missioners of Customs and Excise and Zoological Society
of London, on the interpretation of the second indent of                                              (Third Chamber)
Article 13A(2)(a) of the Sixth Council Directive (77/388/EEC)
of 17 May 1977 on the harmonisation of the laws of the
Member States relating to turnover taxes - Common system of                                             19 March 2002
value added tax: uniform basis of assessment (OJ 1977 L 145,
p. 1), the Court (Fifth Chamber), composed of: P. Jann
(Rapporteur), President of the Chamber, S. von Bahr and
C.W.A. Timmermans, Judges; F.G. Jacobs, Advocate General;                  in Case C-268/00: Commission of the European Communi-
L. Hewlett, Administrator, for the Registrar, has given a                                ties v Kingdom of the Netherlands (1)
judgment on 21 March 2002, in which it has ruled:
                                                                           (Failure by a Member State to fulfil its obligations —
                                                                           Quality of bathing water — Inadequate implementation of
                                                                                Directive 76/160/EEC)
                                                                                (2002/C 118/21)
1.   On a proper construction of the second indent of
     Article 13A(2)(a) of the Sixth Council Directive (77/388/
     EEC) of 17 May 1977 on the harmonisation of the laws of the
                                                                                (Language of the case: Dutch)
     Member States relating to turnover taxes — Common system
     of value added tax: uniform basis of assessment, the condition
     requiring a body to be managed and administered on an
     essentially voluntary basis refers only to members of that body       (Provisional translation; the definitive translation will be published
     who are designated in accordance with its constitution to direct                           in the European Court Reports)
     it at the highest level, as well as other persons who, without
     being designated by the constitution, do in fact direct it in that
     they take the decisions of last resort concerning the policy of
     that body, especially in the financial area, and carry out the
     higher supervisory tasks.                                             In Case C-268/00, Commission of the European Communities
                                                                           (Agents: G. Valero Jordana and C. van der Hauwaert) v
                                                                           Kingdom of the Netherlands (Agent: M. A. Fierstra): Appli-
                                                                           cation for a declaration that, by failing to fulfil its obligations
                                                                           under Articles 4(1) and 6(1) of Council Directive 76/160/EEC
                                                                           of 8 December 1975 concerning the quality of bathing water
2.   On a proper construction of the second indent of                      (OJ 1976 L 31, p. 1) within the periods prescribed by that
     Article 13A(2)(a) of the Sixth Directive 77/388, the words            directive, the Kingdom of the Netherlands has failed to
     ‘on an essentially voluntary basis’ refer to the members who          fulfil its obligations under Community law, the Court (Third
     compose the organs entrusted with the management and                  Chamber), composed of: F. Macken, President of the Chamber,
     administration of a body of the kind referred to in that provision    C. Gulmann (Rapporteur) and J.-P. Puissochet, Judges;
     and those persons who, without being designated by the                F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a
     constitution, do in fact direct it, and refer also to the reward      judgment on 19 March 2002, in which it:
     which the latter may receive, habitually or exceptionally, from
     that body.
                                                                           1.     Declares that, by failing to fulfil its obligations as regards the
                                                                                quality of bathing water and the frequency of sampling thereof
                                                                                within the periods prescribed by Council Directive 76/160/EEC
                                                                                of 8 December 1975 concerning the quality of bathing water,
                                                                                the Kingdom of the Netherlands has failed to fulfil its
                                                                                obligations under Articles 4(1) and 6(1) of that directive;
(1) OJ C 259 of 9.9.2000.
                                                                           2.     Orders the Kingdom of the Netherlands to pay the costs.
                                                                           (1) OJ C 259 of 9.9.2000.


title: Order of the President of the Court of First Instance of 7 April 2000 in Case T-326/99 R: Nancy Fern Olivieri v Commission of the European Communities (Proceedings for interim measures — Marketing authorisation for a medicinal product — Admissibility — Prima facie case — Urgency — Balancing of interests)

text:
7.10.2000               EN                       Official Journal of the European Communities                                         C 285/9
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                                cation for annulment of the decision of the selection board in
                             INSTANCE                                       competition CdR B/01/98 refusing to admit the applicant to
                                                                            the tests in that competition — the Court of First Instance
                          of 7 April 2000                                   (First Chamber), composed of: B. Vesterdorf, President, and
                                                                            M. Vilaras and N. Forwood, Judges; H. Jung, Registrar, made
in Case T-326/99 R: Nancy Fern Olivieri v Commission of                     an order on 17 May 2000, the operative part of which is as
                   the European Communities                                 follows:
(Proceedings for interim measures — Marketing authoris-                     1.    The action is dismissed as manifestly inadmissible;
ation for a medicinal product — Admissibility — Prima
       facie case — Urgency — Balancing of interests)                       2.    The parties are to bear their own costs.
                          (2000/C 285/17)                                   (1) OJ C 122 of 29.4.2000.
                    (Language of the case: English)
In Case T-326/99 R: Nancy Fern Olivieri, resident in Toronto
(Canada), represented by P. Sands and J. Marks, Barristers, and
R. Stein, Solicitor, with an address for service in Luxembourg
at the Chambers of Nathan & Noesen, 18 Rue des Glacis, v                    ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Commission of the European Communities (Agents: R. Wain-                                                INSTANCE
wright and H. Støvlbæk), supported by Apotex Europe Ltd,
having its registered office in Leeds (United Kingdom),
represented by P. Bogaert and M. Le Berre, of the Brussels Bar,                                      of 18 April 2000
S. Fries, Rechtsanwalt, Baden Württemberg, and G. Castle,
Solicitor, with an address for service in Luxembourg at                     in Cases T-83/00 R I, T-83/00 R II, T-84/00 R and
the Chambers of A. Lutgen, 1 Rue Jean-Paul Brasseur —                       T-85/00 R: Hänseler GmbH and Others v Commission of
application for suspension of the operation of the Commission                                 the European Communities
decision of 25 August 1999 granting marketing authorisation
for the medicinal product for human use known as ‘Ferriprox’                (Proceedings for interim relief — Withdrawal of authoris-
(OJ 1999 C 270, p. 2) — the President of the Court has made                 ation for the placing on the market of medicinal products for
an order on 7 April 2000, the operative part of which is as                 human use containing the substance ‘norpseudoephredin’ —
follows:                                                                    Directive 75/319/EEC — Suspension of operation of a
                                                                            measure pending the making of the order bringing the
1.    The application for interim relief is dismissed.                                  proceedings for interim relief to a close)
2.    Costs are reserved.
                                                                                (2000/C 285/19)
                                                                                (Language of the case: German)
                                                                            In Cases T-83/00 R I, T-83/00 R II, T-84/00 R and T-85/00 R:
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                            Hänseler GmbH, established at Konstanz (Germany), applicant
                                                                            in Case T-83/00 R I, Schuck GmbH, established at Schwaig
                          of 17 May 2000                                    (Germany), applicant in Case T-83/00 R II, Laboratórios Rous-
                                                                            sel, Ltda, established at Mem Martins (Portugal), applicant in
in Case T-28/00: Luis Borrego Alias v Committee of the                      Cases T-84/00 R and T-85/00 R, Laboratoires Roussel Dia-
              Regions of the European Union (1)                             mant SARL, established at Puteaux (France), applicant in
                                                                            Case T-84/00 R, and Roussel Iberica SA, established in Barce-
(Officials — Time-limit for bringing proceedings — Mani-                    lona (Spain), applicant in Case T-85/00 R, represented by
                        fest inadmissibility)                               B. Sträter, Rechtsanwalt, Bonn, with an address for service in
                                                                            Luxembourg at the Chambers of Bonn and Schmidt, 7 Val
                          (2000/C 285/18)                                   Sainte Croix, v Commission of the European Communities
                                                                            (Agents: H. Støvlbæk and B. Wägenbaur) — application for
                                                                            suspension of operation of the Commission’s decision of
                     (Language of the case: French)                         9 March 2000 concerning the withdrawal of authorisation for
                                                                            the placing on the market of medicinal products for human
In Case T-28/00: Luis Borrego Alias, residing in Brussels,                  use containing the substances ‘Clobenzorex’, ‘Fenbutrazat’,
represented by J.-N. Louis, G.F. Parmentier and V. Peere, of the            ‘Fenproporex’, ‘Mazindol’, ‘Mefenorex’, ‘Norpseudoephredin’,
Brussels Bar, with an address for service in Luxembourg at the              ‘Phenmetrazin’ and ‘Propylhexedrin’ (C(2000) 608) — the
offices of Société de Gestion Fiduciaire, 2-4 Rue Beck, v                   President of the Court of First Instance made an order on
Committee of the Regions of the European Union — appli-                     18 April 2000, the operative part of which is as follows:


title: Case T-423/13: Action brought on 16 August 2013 — Good Luck Shipping v Council

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/35

         Action brought on 16 August 2013 — Good Luck Shipping v Council
   (Case T-423/13)
   2013/C 325/59
   Language of the case: English

      Parties

      Applicant: Good Luck Shipping LLC (Dubai, United Arab Emirates) (represented by: F. Randolph, QC, M. Lester, Barrister, and M. Taher, Solicitor)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul Council Decision 2013/270/CFSP of 6 June 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 156, p. 10) and Council Implementing Regulation (EU) No 522/2013 of 6 June 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 156, p. 3), in so far as they relate to the applicant; and

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging that the Council failed to give adequate or sufficient reasons.

               2.

               Second plea in law, alleging that the Council failed to fulfill the criteria for listing, and/or committed a manifest error of assessment in determining that those criteria were satisfied in relation to the applicant and/or included the applicant without an adequate legal basis for doing so.

               3.

               Third plea in law, alleging that the Council failed to safeguard the applicant’s rights of defence and right to effective judicial review.

               4.

               Fourth plea in law, alleging that the Council infringed, without justification or proportion, the applicant’s fundamental rights, including its right to protection of its property, business, and reputation.


title: Case C-393/03: Action brought on 18 September 2003 by the Republic of Austria against the Commission of the European Communities

text:
1.11.2003              EN                        Official Journal of the European Union                                           C 264/25
The applicant claims that the Court should:                              —     order the Commission to pay the costs.
—     find that, by failing to adopt the laws, regulations
      and administrative provisions necessary to comply with
      Council Directive 1999/74/EC of 19 July 1999 laying                Pleas in law and main arguments
      down minimum standards for the protection of laying
      hens (1) or, in any event, by failing to communicate the
      same to the Commission, the Italian Republic has failed
      to fulfil its obligations under Article 13(1) of that              (Main application)
      directive;
—     order the Italian Republic to pay the costs.                       Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                         1994 Act of Accession by definitively refusing the request
                                                                         made under the second paragraph of Article 232 EC. The
                                                                         Commission wrongly seeks to deduct from the number of
Pleas in law and main arguments                                          transit journeys declared overall for the year 2002 (1 718 622)
                                                                         journeys declared as transit journeys in respect of which there
                                                                         is no information on departure (69 433), journeys declared as
The time-limit for transposing the directive expired on 1 Janu-
                                                                         transit journeys where both entry and departure were effected
ary 2002.
                                                                         at the same border point (52 642) and journeys involving
                                                                         ‘piggyback transportation’ (7 812).
(1) OJ L 203 of 3.8.1999, p. 53.
                                                                         The ecopoint system under Protocol No 9 to the 1994 Act of
                                                                         Accession is based on the principle of declarations. Accord-
                                                                         ingly, if journeys are clearly declared by a driver as transit
                                                                         journeys, they are included within the ecopoint statistics and
                                                                         are relevant to the question whether the 108 % threshold has
                                                                         been exceeded, whereupon the Commission is bound under
Action brought on 18 September 2003 by the Republic                      Article 11(2)(c) of Protocol No 9, in conjunction with para-
of Austria against the Commission of the European                        graph 3 of Annex 5 thereto, to adopt appropriate measures,
                          Communities                                    namely to reduce the number of ecopoints for the following
                                                                         year in accordance with a calculation method laid down in the
                                                                         Annex to the Protocol. It cannot, in the light of the principle
                         (Case C-393/03)
                                                                         of declarations, be for the Republic of Austria, either legally or
                                                                         factually, to provide evidence in each individual case that,
                         (2003/C 264/43)                                 where a journey is clearly declared to be a transit journey, such
                                                                         a transit journey actually took place. The Republic of Austria
                                                                         merely has to deduct journeys declared to be transit journeys
                                                                         where it is beyond doubt that, despite a clear declaration, there
An action against the Commission of the European Communi-                cannot have been a transit journey. It clearly follows, therefore,
ties was brought before the Court of Justice of the European             that the 108 % threshold was exceeded in 2002. In the light of
Communities on 18 September 2003 (fax: 11.9.03) by the                   its decision of 1 July 2003, the Commission consequently
Republic of Austria, represented by Dr Harald Dossi of the               failed to fulfil its obligations under Protocol 9 to the 1994 Act
Constitutional Service of the Federal Chancellor’s Office of the         of Accession, in particular its obligations under Article 11(2)(c)
Republic of Austria, with an address for service in Luxembourg.          in conjunction with Article 16 and paragraph 3 of Annex 5 to
                                                                         that Protocol, thereby creating grounds for annulment on
                                                                         account of infringement of the EC Treaty and/or of Protocol
The applicant claims that the Court should:                              No 9 to the 1994 Act of Accession pursuant to the second
                                                                         paragraph of Article 230 EC.
—     annul the negative opinion of the Commission of 1 July
      2003 definitively refusing the request for action submit-
      ted to the Commission by the Republic of Austria under
      the second paragraph of Article 232 EC;                            (In the alternative)
—     order the Commission to pay the costs.
                                                                         Infringement of the EC Treaty and/or of Protocol No 9 to the
                                                                         1994 Act of Accession. In relation to the grounds, the
In the alternative, the Republic of Austria claims that the Court        applicant refers to its arguments regarding the first plea in law.
should:
—     annul the Commission’s decision of 1 July 2003 ordering            (1) Protocol No 9 on road, rail and combined transport in Austria.
      the non-application of Article 11(2)(c) of Protocol No 9
      to the 1994 Act of Accession (1) and the full award of
      ecopoints for the year 2003;


title: Action brought on 22 December 1997 by the Commission of the European Communities against the French Republic (Case C-434/97)

text:
28.3.98              EN                   Official Journal of the European Communities                                    C 94/5
Emden (Germany), represented by Detlef Schumacher and                1. The appeal is dismissed.
Wilhelm Wiltfang, Rechtsanwalt Ð appeal against the
order of the Court of First Instance (Third Chamber) of
19 February 1997 in Case T-117/96 Intertronic v.                     2. Mr Abello and Others and Mr Riesch shall pay the
Commission [1997] ECR II-141, seeking to have that                       costs.
order set aside, the other party to the proceedings being
Commission of the European Communities (Agent: Klaus                 (1) OJ C 108, 13.4.1996.
Wiedner) Ð the Court (First Chamber), composed of: M.
Wathelet, President of the Chamber, D. A. O. Edward and
L. Sevón (Rapporteur), Judges; N. Fennelly, Advocate-
General; R. Grass, Registrar, made an order on 15 January
1998, the operative part of which is as follows:
                                                                     Action brought on 22 December 1997 by the Commission
1. The appeal is dismissed.                                          of the European Communities against the French Republic
                                                                                (Case C-434/97)
2. The applicant is ordered to pay the costs.                                                 (98/C 94/11)
(1) OJ C 212, 12.7.1997.
                                                                     An action against the French Republic was brought before
                                                                     the Court of Justice of the European Communities on
                                                                     22 December 1997 by the Commission of the European
                                                                     Communities, represented by HeÂleÁne Michard and Enrico
                                                                     Traversa, of its Legal Service, acting as Agents, with an
                                                                     address for service in Luxembourg at the office of Carlos
                  ORDER OF THE COURT                                 Gómez de la Cruz, Wagner Centre, Kirchberg.
                      (Fourth Chamber)
                                                                     The applicant claims that the Court should:
                     of 5 February 1998
in Case C-30/96 P: Giovanni Battista Abello and Others,
Gerhard Riesch v. Commission of the European                         Ð declare that, by maintaining in force legislative
Communities, supported by Council of the Euroepan                        provisions under which beverages with an alcohol
                           Union (1)                                     content exceeding 25 % vol. are subject to a special
                                                                         contribution calculated per decilitre or parts thereof,
(Officials Ð Pay slips Ð Weightings Ð Regulations (EEC)                  the French Republic has failed to fulfil its obligations
No 3761/92, (EEC) No 3765/92 and (EEC) No 3766/92                        under Article 3(2) of Council Directive 92/12/EEC (1)
                  Ð Plea of inadmissibility)                             of 25 February 1992 on the general arrangements for
                                                                         products subject to excise duty and on the holding,
                         (98/C 94/10)                                    movement and monitoring of such products, read in
                                                                         conjunction with Council Directive 92/83/EEC (2) of
                                                                         19 October 1992 on the harmonisation of the
                (Language of the case: Italian)
                                                                         structures of excise duties on alcohol and alcoholic
                                                                         beverages,
  (Provisional translation; the definitive translation will be
         published in the European Court Reports)                    Ð order the French Republic to pay the costs.
In Case 30/96 P: Giovanni Battista Abello and Others,                Pleas in law and main arguments adduced in support:
Gerhard Riesch (Agents: Michele Tamburini and Franco
Colussi) Ð appeal against the judgment of the Court of               Failure to fulfil obligations under Directive 92/12/EEC
First Instance of the European Communities (Fourth                   inasmuch as the French social security' contribution:
Chamber) of 7 December 1995 in Joined Cases T-544/93
and T-566/93 Abello and Others v. Commission [1995]
ECR-SC II-815, seeking to have that judgment set aside,              Ð is calculated per decilitre of beverage and not by
the other party to the proceedings being: Commission of                  reference to the quantity of pure alcohol contained in
the European Communities (Agent: Gianluigi Valsesia,                     the beverage in question,
assisted by Alberto Dal Ferro), supported by Council of
the European Union (Agent: Anna Lo Monaco) Ð the
Court (Fourth Chamber), composed of: H. Ragnemalm,                   Ð applies to beverages with an alcohol content exceeding
President of the Chamber, J. L. Murray (Rapporteur) and                  25 % vol, whereas the Community customs duty
K. M. Ioannou, Judges; P. LeÂger, Advocate-General; R.                   category of ethyl alcohol (Article 20 of Directive 92/
Grass, Registrar, made an order on 5 February 1998, the                  83/EEC) covers products with an alcohol content
operative part of which is as follows:                                   exceeding 22 % vol.
 ---pagebreak--- C 94/6                EN                  Official Journal of the European Communities                                   28.3.98
The power allowed to Member States to derogate from                  Ð Infringement of the evidential principles of the rule of
the principle of the unity of excise duties (taxes and                   law, applicable in penal proceedings, that the
structure) and maintain or create additional national                    imposition of severe penalties may not be based on an
charges for specific purposes in respect of a single product             assessment of the evidence which manifestly violates
or a single category of products may only be construed                   the rules of thought and logic. The appellant submits
strictly. Any other construction would undermine the                     in the present appeal that the contradictions which
effectiveness of Community legislation on products subject               have been pointed out in the contested judgment are
to duty since it would give rise to the establishment of                 manifest and follow from the Court of First Instance's
parallel' national indirect taxation which would call in                own findings, so that there is no need for any further
question the objectives of Directive 92/12/EEC in the                    examination of the facts by the Court of Justice.
context of the internal market.
                                                                     Ð Infringement of the principle of the rule of law in
(1) OJ L 76, 23.3.1992, p. 1.                                            dubio pro reo, which states that in penal proceedings
(2) OJ L 316, 31.10.1992, p. 29.                                         full proof of the offence is required and doubts and
                                                                         uncertainties regarding the evidence must be assessed
                                                                         in favour of the accused and exclude the imposition of
                                                                         penalties. The presumption of innocence is a
                                                                         fundamental principle which corresponds to the
                                                                         generally accepted view of the rule of law and is
Appeal brought on 29 December 1997 by Deutsche Bahn                      furthermore codified in Article 6(2) of the European
AG against the judgment delivered on 21 October 1997                     Convention for the Protection of Human Rights and
by the First Chamber, Extended Composition, of the                       Fundamental Freedoms, and hence to be respected by
Court of First Instance of the European Communities in                   the European Union via Article F(2) of the EU Treaty
Case T-229/94 between Deutsche Bahn AG and the                           as a fundamental right. The in dubio pro reo principle
          Commission of the European Communities                         applies not only in the field of criminal law in the
                      (Case C-436/97 P)                                  strict sense, but also in the law of administrative
                                                                         offences.
                         (98/C 94/12)
                                                                     (1) OJ C 387, 20.12.1997, p. 14.
An appeal against the judgment delivered on 21 October
1997 by the First Chamber, Extended Composition, of the
Court of First Instance of the European Communities in
Case T-229/94 between Deutsche Bahn AG and the
Commission of the European Communities was brought
before the Court of Justice of the European Communities              Appeal brought on 30 December 1997 by Wirtschaftsver-
on 29 December 1997 by Deutsche Bahn AG, represented                 einigung Stahl, Thyssen Stahl AG, Preussag Stahl AG and
by Jochim Sedemund, Rechtsanwalt, of Deringer, Tessin,               Hoogovens Staal BV against the judgment delivered on
Herrmann & Sedemund, Berlin, with an address for                     24 October 1997 by the First Chamber, Extended
service in Luxembourg at the Chambers of Aloyse May,                 Composition, of the Court of First Instance of the
31 Grand Rue.                                                        European Communities in Case T-244/94 between Wirt-
                                                                     schaftsvereinigung Stahl, Thyssen Stahl AG, Preussag Stahl
The appellant claims that the Court should:                          AG and Hoogovens Groep BV and the Commission of the
                                                                     European Communities, supported by the Council of the
Ð set aside the judgment of the Court of First Instance     of       European Union, the Italian Republic and Ilva Laminati
     the European Communities of 21 October 1997 (1)         in                                Piani SpA
     Case T-229/94 Deutsche Bahn AG v. Commission,           in                            (Case C-441/97 P)
     so far as it dismissed the application for annulment   of
                                                                                (98/C 94/13)
     Articles 2 to 4 of the Commission's decision           of
     29 March 1994 (IV/33.941 Ð HOV-SVZ/MCN),
                                                                     An appeal against the judgment delivered on 24 October
Ð annul Articles 2 to 4 of the said Commission Decision,             1997 by the First Chamber, Extended Composition, of the
                                                                     Court of First Instance of the European Communities in
Ð order the Commission to pay the costs.                             Case T-244/94 between Wirtschaftsvereinigung Stahl,
                                                                     Thyssen Stahl AG, Preussag Stahl AG and Hoogovens
                                                                     Groep BV and the Commission of the European
Pleas in law and main arguments adduced in support:                  Communities, supported by the Council of the European
                                                                     Union, the Italian Republic and Ilva Laminati Piani SpA
Ð Infringement of the principle of the rule of law,                  was brought before the Court of Justice of the European
     applicable in penal proceedings generally, that the             Communities on 30 December 1997 by Wirtschaftsvereini-
     offence complained of must be sufficiently certain to           gung Stahl, Thyssen Stahl AG, Preussag Stahl AG and
     make the necessary proof and examination of that                Hoogovens Staal BV (formerly Hoogovens Groep BV),
     proof possible at all; infringement of the general              represented by Jochim Sedemund, Rechtsanwalt, of
     obligation to state reasons, which applies to courts            Deringer, Tessin, Herrmann & Sedemund, Berlin, and Erik
     too.                                                            H. Pijnacker Hordijk, Advocaat, of De Brauw, Blackstone,


title: Judgment of the Court (Fourth Chamber) of 6 March 2003 in Case C-478/01: Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Freedom to supply services — Patent agents — Choice of domicile with an approved agent — Article 10 EC — Member States' duty of cooperation)

text:
26.4.2003                EN                          Official Journal of the European Union                                                C 101/9
                  JUDGMENT OF THE COURT                                      2.     Orders the Grand Duchy of Luxembourg to pay the costs.
                         (Fourth Chamber)                                    (1 ) OJ C 84 of 6.4.2002.
                          of 6 March 2003
in Case C-478/01: Commission of the European Communi-
             ties v Grand Duchy of Luxembourg ( 1)
                                                                                JUDGMENT OF THE COURT
(Failure by a Member State to fulfil its obligations —
Freedom to supply services — Patent agents — Choice of                                                  (Fifth Chamber)
domicile with an approved agent — Article 10 EC —
               Member States’ duty of cooperation)
                                                                                of 6 March 2003
                           (2003/C 101/15)                                   in Case C-485/01 (Reference for a preliminary ruling from
                                                                             the Tribunal civile e penale di Trento): Francesca Caprini
                                                                             v Conservatore Camera di Commercio, Industria, Artigi-
                     (Language of the case: French)                                           anato e Agricoltura (CCIAA) (1)
                                                                             (Directive 86/653/EEC — Self-employed commercial agents
(Provisional translation; the definitive translation will be published       — National legislation requiring enrolment of a commercial
                    in the European Court Reports)                           agent in a register provided for that purpose as a prior
                                                                                condition of registration in the register of undertakings)
                                                                                (2003/C 101/16)
In Case C-478/01, Commission of the European Communities
(Agent: M. Patakia) v Grand Duchy of Luxembourg (Agent:                                           (Language of the case: Italian)
J. Faltz): Application for a declaration that, by maintaining the
obligation for patent agents, when supplying services, either
to be domiciled in Luxembourg or, failing such domicile, to                  (Provisional translation; the definitive translation will be published
opt for domicile with an approved agent, and by failing to                                       in the European Court Reports)
supply information concerning the precise conditions for the
application of Article 85(2) of the Law of 20 July 1992
amending the rules on patents (Mémorial A 1992, p. 1530),
and Articles 19 and 20 of the Law of 28 December 1998
                                                                             In Case C-485/01: Reference to the Court under Article 234 EC
governing access to occupations in craft trades, business and                by the Tribunale civile e penale di Trento (Italy) for a
industry, and to certain liberal professions (Mémorial A 1998,
                                                                             preliminary ruling in the proceedings pending before that
p. 1494), the Grand Duchy of Luxembourg has failed to fulfil
                                                                             court between Francesca Caprini and Conservatore Camera di
its obligations under Article 49 EC et seq. and Article 10
                                                                             Commercio, Industria, Artigianato e Agricoltura (CCIAA),
EC respectively, the Court (Fourth Chamber), composed of:
                                                                             on the interpretation of Council Directive 86/653/EEC of
C.W.A. Timmermans, President of the Chamber,                                 18 December 1986 on the coordination of the laws of the
D.A.O. Edward and A. La Pergola (Rapporteur), Judges;
                                                                             Member States relating to self-employed commercial agents
F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a
                                                                             (OJ 1986 L 382, p. 17), the Court (Fifth Chamber), composed
judgment on 6 March 2003, in which it:
                                                                             of: M. Wathelet, President of the Chamber, D.A.O. Edward,
                                                                             A. La Pergola, P. Jann (Rapporteur) and S. von Bahr, Judges;
                                                                             F.G. Jacobs, Advocate General; R. Grass, Registrar, has given a
1.     Declares that, having regard to the requirement that patent           judgment on 6 March 2003, in which it has ruled:
       agents, when supplying services, should elect domicile with an
       approved agent, and having regard to the fact that the
       Luxembourg Government has not provided information con-               On a proper reading, Council Directive 86/653/EEC of 18 December
       cerning the precise conditions for the application of                 1986 on the coordination of the laws of the Member States relating
       Article 85(2) of the Law of 20 July 1992 amending the rules           to self-employed commercial agents does not preclude national
       on patents and Articles 19 and 20 of the Law of 28 December           legislation from making registration of a commercial agent in the
       1998 governing access to occupations in craft trades, business        register of undertakings subject to that agent’s enrolment in a register
       and industry, and to certain liberal professions, the Grand           provided for that purpose, on condition that non-registration in the
       Duchy of Luxembourg has failed to fulfil its obligations under        register of undertakings does not affect the validity of an agency
       Article 49 EC and Article 10 EC.                                      contract which that agent has concluded with his principal or that


title: JUDGMENT OF THE COURT of 11 March 1997 in Case C-357/95 P: Empresa Nacional de Urânio SA (ENU) v. Commission of the European Communities (Appeal - EAEC - Supply - Right of option and exclusive right of the Euratom Supply Agency to conclude contracts for the supply of ores, source materials and special fissile materials - Infringement of the rules of the Treaty - Community preference - Principles of good faith and legitimate expectations - Non-contractual liability)

text:
No C 131 /2                 EN                 Official Journal of the European Communities                                      26 . 4 . 97
interpretation of Council Directive 77/187/EEC of                         with an address for service in Luxembourg at the
14 February 1977 on the approximation of the laws of the                  Chambers of Aloyse May, 31 Grand-rue — the Court,
Member States relating to the safeguarding of employees '                 composed of: G. C. Rodriguez Iglesias, President, G. F.
rights in the event of transfers of undertakings, businesses              Mancini, J. C. Moitinho de Almeida and J. L. Murray
or parts of businesses ( 2 ) — the Court, composed of: G. C.              ( Presidents of Chambers ), P. J. G. Kapteyn, C. Gulmann,
Rodriguez Iglesias, President, J. C. Moitinho de Almeida,                 D. A. O. Edward, J. -P. Puissochet, G. Hirsch, P. Jann
J. L. Murray and L. Sevón ( Presidents of Chambers ),                     ( Rapporteur ) and M. Wathelet, Judges; C. O. Lenz,
P. J. G. Kapteyn, C. Gulmann, D. A. O. Edward, J. -P.                     Advocate-General; R. Grass, Registrar, has given a
Puissochet ( Rapporteur), G. Hirsch, P. Jann and H.                       judgment on 11 March 1997, in which it:
Ragnemalm, Judges; A. La Pergola, Advocate-General; D.
Louterman-Hubeau, Principal Administrator, for the
Registrar, has given a judgment on 11 March 1997, in                      1 . Dismisses the appeal.
which it has ruled :
                                                                          2 . Orders the Commission to pay the costs.
Article 1 (1 ) of Council Directive 77/187/EEC of
 14 February 1977 on the approximation of the laws of the                 C ) OJ No C 248 , 23 . 9 . 1995 , p . 10 .
Member States relating to the safeguarding of employees '
rights in the event of transfers of undertakings, businesses
or parts of businesses is to be interpreted as meaning that
the Directive does not apply to a situation in which a
person who had entrusted the cleaning of his premises to a
first undertaking terminates his contract with the latter
and, for the performance of similar work, enters into a                                   JUDGMENT OF THE COURT
new contract with a second undertaking, if there is no                                            of 11 March 1997
 concomitant transfer from one undertaking to the other of
significant tangible or intangible assets or taking over by               in Case C-357/95 P: Empresa Nacional de Urânio SA
 the new employer of a major part of the workforce, in                        (ENU ) v. Commission of the European Communities (')
 terms of their numbers and skills, assigned by his                        (Appeal — EAEC — Supply — Right of option and
predecessor to the performance of the contract.                            exclusive right of the Euratom Supply Agency to conclude
                                                                           contracts for the supply of ores, source materials and
 (') OJ No C 54, 4 . 3 . 1995 , p . 12 .                                   special fissile materials — Infringement of the rules of the
 ( 2 ) OJ No L 61 , 5 . 3 . 1977, p . 26 .                                 Treaty — Community preference — Principles of good
                                                                           faith and legitimate expectations — Non-contractual
                                                                                liability)
                                                                                ( 97/C 131/04 )
                  JUDGMENT OF THE COURT                                                  (Language of the case: Portuguese)
                             of 11 March 1997
 in Case C-264/95 P: Commission of the European                               (Provisional translation; the definitive translation will be
 Communities v. Union Internationale des chemins de fer                              published in the European Court Reports)
                                   (UIC) n
  (Appeal — Competition — Transport by rail — Legal                        In Case C-357/95 P: Empresa Nacional de Urânio SA
    basis for a decision — Regulation No 1017/68 — Scope)                   (ENU), a company incorporated under Portuguese law,
                               ( 97/C 131 /03                              established at Urgeiriça, Nelas (Portugal ), represented by
                                                                           João Mota de Campos and João Luis dos Reis Mota de
                                                                            Campos, of the Lisbon Bar, with an address for service in
                   (Language of the case: French)                           Luxembourg at the office of Joaquim Calvo Basáran,
                                                                            34 boulevard Ernest Feltgen — appeal against the
                                                                            judgment of the Court of First Instance ( Second Chamber,
      (Provisional translation; the definitive translation will be
                                                                            Extended Composition) of 15 September 1995 in Joined
             published in the European Court Reports)                       Cases T-458/93 and T-523/93 ENU v. Commission [ 19951
                                                                            ECR 11-2459 , seeking to have that judgment set aside, the
  In Case C-264/95 P: Commission of the European                            other party to the proceedings being: Commission of the
  Communities (Agent: Giuliano Marenco ) — appeal                           European Communities ( Agents : Antonio Caeiro and
  against the judgment of the Court of First Instance (Third                Jürgen Grunwald ) — the Court, composed of: G. C.
  Chamber, Extended Composition ) of 6 June 1995 in Case                    Rodriguez Iglesias, President, G. F. Mancini, J. L. Murray
  T- 14/93     Union internationale        des chemins    de  fer v.        and L. Sevón ( Presidents of Chambers ), C. N. Kakouris,
  Commission [ 1995] ECR 11-1503 , seeking to have that                     D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann, H.
  judgment set aside, the other party to the proceedings                    Ragnemalm and M. Wathelet ( Rapporteur ), Judges; N.
  being: Union internationale des chemins de fer (UIC ), an                 Fennelly, Advocate-General; H. A. Rühl, Principal
  association of railway companies, having its head office in               Administrator, for the Registrar, has given a judgment on
  Paris, represented by Chantal Momége, of the Paris Bar,                    11 March 1997, in which it:
 ---pagebreak--- 26 . 4 . 97                                   Official Journal of the European Communities                                  No C 131 /3
 1 . Dismisses the appeal.                                                                  ORDER OF THE COURT
                                                                                (Second Chamber )
2 . Orders the appellant to pay the costs.                                                      of 5 February 1997
                                                                         in Case C-51/95 P: Unifruit Hellas EPE v. Commission of
(') OJ No C 16, 20 . 1 . 1996 , p. 6 .                                                   the European Communities (')
                                                                         (Appeal — Non-contractual liability — Special
                                                                         surveillance measures concerning imports of apples —
                                                                         Countervailing charge — Applied concurrently —
                                                                         Products in transit to the Community — Principle of the
                                                                                protection of legitimate expectations)
                JUDGMENT OF THE COURT                                                                 ( 97/C 131 /06 )
                         ( Second Chamber)
                        of 13 March 1997                                                  (Language of the case: Greek)
in Case C-109/95 (reference for a preliminary ruling made
by the Polimeles Protodikio, Athens ): Astir AE v. the                     (Provisional translation; the definitive translation will be
                            Greek State ( 1 )                                     published in the European Court Reports)
(Export refunds for agricultural products — Loss of goods
   in transit by reason of force majeure — Variable refund)              In Case C-51/95 P: Unifruit Hellas EPE, a company
                                                                         governed by Greek law, established in Athens, represented
                            ( 97/C 131 /05 )                             by Ilias Soufleros, of the Athens Bar, with an address for
                                                                         service in Luxembourg at the Chambers of Aloyse May,
                                                                         31 Grand-rue — appeal against the judgment of the Court
                  (Language of the case: Greek)                          of First Instance of the European Communities (Third
                                                                         Chamber ) of 15 December 1994 in Case T-489/93
                                                                         Unifruit Hellas v. Commission [ 1994] ECR 11-1201 ,
   (Provisional translation; the definitive translation will be          seeking to have that judgment set aside, the other party to
          published in the European Court Reports)                       the proceedings being Commission of the European
                                                                         Communities (Agents: Xenophon Yataganas and
                                                                         Theofanis Christoforou ) — the Court ( Second Chamber ),
In Case C-109/95 : reference to the Court pursuant to
Article 177 of the EC Treaty by the Polimeles Protodikio,                composed of G. F. Mancini , President of the Chamber, G.
Athens, for a preliminary ruling in the proceedings                      Hirsch ( Rapporteur ) and R. Schintgen, Judges; A. La
pending before that court between Astir AE and the Greek                 Pergola, Advocate-General ; R. Grass, Registrar, made an
State — on the interpretation of Articles 10 (4 ), 20 and 21             order on 5 February 1997, the operative part of which is
                                                                         as follows :
of Commission Regulation (EEC ) No 2730/79 of
29 November 1979 laying down common detailed rules
for the application of the system of export refunds on                   1 . The appeal is dismissed.
agricultural products (2) — the Court ( Second Chamber),
composed of: G. F. Mancini, President of the Chamber, G.                 2 . The applicant shall bear the costs.
Hirsch ( Rapporteur) and J. L. Murray, Judges; M. B.
Elmer,       Advocate-General;            D.  Louterman-Hubeau,
                                                                         (') OJ No C 119 , 13 . 5 . 1995 , p . 5 .
Principal Administrator, for the Registrar, has given a
judgment on 13 March 1997, the operative part of which
is as follows :
Articles 10 (4), 20 and 21 of Commission Regulation
(EEC) No 2730179 of 29 November 1979 laying down                         Action on 14 February 1997 by the Commission of the
common detailed rules for the application of the system of               European Communities against Cascina Laura SAS di
export refunds on agricultural products must be                          Aldo Delbo e C. and Gariboldi Engineering Company SRL
interpreted as meaning that a trader is not entitled to an
                                                                                ( Case C-65/97)
export refund where the product concerned has perished
in transit as a result of force majeure, after leaving the                                            ( 97/C 131 /07 )
geographical territory of the Community, and where the
same rate of refund has been fixed for all non-member
countries, with the exception of one single country, for                 An action against Cascina Laura SAS Aldo Delbo e C. ,
which no refund has been fixed.                                          whose registered office is in Novara ( Italy), and Gariboldi
                                                                         Engineering Company SRL, whose registered office is in
                                                                         Milan (Italy ), was brought before the Court of Justice of
H OJ No C 137, 3 . 6 . 1995 , p . 14 .
( 2 ) OJ No L 317, 12 . 12 . 1979 , p . 1 .                              the European Communities on 14 February 1997 by the
                                                                         Commission of the European Communities, represented
                                                                         by Paolo Stancanelli of its Legal Service and Jean-Francis
                                                                         Pasquier, a national civil servant on detachment to that


title: Action brought on 7 March 1997 by the Commission of the European Communities against the Italian Republic (Case C-101/97)

text:
10 . 5 . 97         EN                     Official Journal of the European Communities                                  No C 142/9
Pleas in law and main arguments adduced in support:                   Turin v. Ministero . delle Finanze dello Stato on the
                                                                      following question:
The Government considers that the decision of the
Commission is unlawful in so far as it orders a financial             If the judgment of the Court of Justice of 20 April 1993 in
adjustment for the purpose of clearing the EAGGF                      Joined Cases C-71/91 and C-178/91 Ponente Carni Spa
accounts with regard to the sum of Lit 11 934 331 913                 and Cispadana Costruzioni Spa v. Amministrazione delle
and accordingly challenges the decision itself, seeking the           Finanze dello Stato (*) on a reference made under
partial annulment thereof on the following ground:                    Article 177 of the EEC Treaty on the interpretation of
                                                                      Articles 10 and 12 of Council Directive 69/335/EEC (2 )
Infringement of Article                  11   of Commis              and those Articles of that Directive must be interpreted —
sion Regulation ( EEC )                No      2677 / 85 of           in proceedings brought before the national court for
24 September 1985                                                     repayment of taxes paid pursuant to national legislation
                                                                      ( Article 3 of Decree-Law No 853 of 19 December 1984,
                                                                      enacted as Law No 17/1985 , as amended ) contrary to that
The Azienda per gli Interventi nel Mercato Agricola ( State           Directive — as meaning that the prescription periods laid
Board for Intervention in the Agricultural Market, AIMA)              down by Article 13 of Decree No 641 /72 of the President
observed the provisions contained in Article 11 of                    of the Republic may or may not be relied upon in order to
Regulation ( EEC ) No 2677/85 in respect of security.                 refuse such repayment and, if they may be so relied upon,
                                                                      as meaning that those periods must start running on the
The allegations made in the Summary Report are untrue                 date of payment or at the time when the aforementioned
with regard to 82 instances 'relating to applications for             Directive was properly transposed into national law ?
aid unduly paid, covered, moreover, by valid security and
which has not yet been recovered from the national                    H [ 1993 ECR 1-1915 .
authority'.                                                           (2 ) OJ, English Special Edition 1969(11), p. 412.
Some amounts have already been received and paid to the
EAGGF. In respect of others, the sums have been
recovered by being set off against other amounts which
were payable . In one instance, the credit which fell to be
recovered is guaranteed by means of a voluntary first                 Action brought on 7 March 1997 by the Commission of
mortgage. In many other cases, the necessary executive                    the European Communities against the Italian Republic
procedures have been put in place for the compulsory                                            ( Case C-101/97)
recovery of amounts due.
                                                                                97/C 142/20 )
Finally, a special situation is that regarding the 'Caruso
Rosa' company, in respect of which the 'AgencontroP                   An action against the Italian Republic was brought before
found that there had been infringements, without,                     the Court of Justice of the European Communities on
however, succeeding in quantifying the amount of the aid              7 March 1997 by the Commission of the European
unduly paid. In the absence of reliable information, it has           Communities, represented by Enrico Traversa, of its Legal
not been possible to forfeit the securities. To that end, the         Service, acting as Agent, with an address for service at the
Guardia di Finanza has therefore been requested to                    office of Carlos Gomez de la Cruz, Wagner Centre,
investigate further and when such investigation is                    Kirchberg.
completed any aid unduly received by the undertaking will
be recovered .                                                        The applicant claims that the Court should:
                                                                      — declare that, by adopting and maintaining in force a
                                                                            law relating to value added tax which does not permit
                                                                            deduction of the tax in respect of real property
                                                                            acquired, even by means of financial leasing, in joint
Reference for a preliminary ruling from the Tribunale                       ownership or co-ownership with persons who are not
Civile e Penale di Torino — Prima Sezione Civile — by                       acting in connection with carrying on a business, trade
order of that court of 14 February 1997 in the case of CIF                  or profession, the Italian Republic has failed to fulfil
srl, operating in Turin, v. Ministero delle Finanze dello                   its obligations under Article 17 ( 2 ) ( a ) of Council
                              Stato                                         Directive 77/388/EEC of 17 May 1977 H ( the Sixth
                       ( Case C-98/97 )                                     VAT Directive ),
                         ( 97/C 142/19 )                              — order the Italian Republic to bear the costs.
Reference has been made to the Court of Justice of the                Pleas in law and main arguments adduced in support:
European Communities by order of the Tribunale Civile e
Penale di Torino — Prima Sezione Civile — ( Civil and                 The Commission cannot but note the glaring discrepancy
Criminal Court, Turin, First Civil Section ) of 14 February           between Article 19 (2 ) ( e ) ( b ) of the Italian Presidential
1997, received at the Court Registry on 6 March 1997,                 Decree and Article 17 (2 ) ( a ) of the Sixth Directive, as
for a preliminary ruling in the case of CIF srl, operating in         interpreted in the decisions of the Court.
 ---pagebreak--- No C 142/10            EN                  Official Journal of the European Communities                                          10 . 5 . 97
Deduction of the VAT liable to be paid in connection with             Pleas in law and main arguments adduced in support:
real property acquired by a taxable person in joint
ownership or co-ownership with individuals must be                    The treatment of waste oil is regulated in the Federal
authorized immediately and unconditionally, in proportion             Republic of Germany primarily by the Abfallgesetz ( Law
of course to the part of the property used for business               on Waste Products ) ( until 6 October 1996 ) and the
purposes .                                                            Kreislaufwirtschafts- und Abfallgesetz ( Law on Economic
                                                                      Cycles and Waste Products) ( since 7 Oktober 1996 ) and
Excluding that deduction constitutes a breach of the                  by the subordinate legislation enacted pursuant thereto
principle of neutrality of the tax which, where the                   ( the Altolverordnung ( Regulation on Waste Oils ), the Ab
property is resold, would be charged twice on the same                fallbestimmungsverordnung ( Regulation on dealing with
taxable amount, that is to say the price of that part of the          Waste Products ), the Reststoffbestimmungsverordnung
property used for business purposes. Where property is                ( Regulation dealing with Residual Matter ) and the Abfall
resold, the trader or other self-employed person carries out          und Reststoffiiberwachungsverordnung ( Regulation on the
a taxable transfer and is liable to pay to the tax                    Control of Waste Products and Residual Matter)). None
authorities the VAT received from the purchaser of the                of the provisions of that legislation gives priority to the
property, even though that same taxable person, on his                regeneration of waste oils . According to paragraph 6 ( 1 )
purchase of that same property, had paid the VAT charged              of the Kreislaufwirtschafts- und Abfallgesetz ( BGB1 . I
him hy the vendor without any possibility of deduction for            1994, p. 2705 ), waste products may be used as materials
the part to be used for business purposes, in short being             or used for energy purposes. Priority is given to whichever
treated as though he were the end-user of the entire                  form of utilization is better adapted to the environment.
property.                                                             Rules may be adopted giving priority either to use for
                                                                      material purposes or to utilization for energy purposes,
In essence, by providing for that derogation from the                 depending on which use constitutes a better solution in
principle that VAT paid on business costs should be                   environmental terms . Although discussion took place at
deductible, the Italian legislature has arbitrarily introduced        the time of the adoption of the Kreislaufwirtschafts- und
an irrebuttable presumption of evasion in relation to all             Abfallgesetz as to whether priority should be given to
purchases by taxable persons jointly with private                     regeneration, such priority was not ultimately provided for
individuals of property intended for undifferentiated use,            in that Law. This is contrary to the wording of Article 3(1 )
without taking into account the actual, even though                   of Directive 75/439/EEC, as amended by Directive 87/101 /
partial, use of that investment property for the business             EEC, and to the choice made by the European legislature,
requirements.                                                         as expressed in the recitals in the preamble to Directive
                                                                      87/ 101 /EEC: regeneration is generally the most rational
(') OJ No L 145 , 13 . 6 . 1977, p . 1 .                              way of re-using waste oils in view of the energy savings
                                                                      which can be achieved, and priority should therefore be
                                                                      given to the processing of waste oils by regeneration ( see
                                                                      the second recital in the preamble to Directive 87/101 /
                                                                      EEC ). Although the prohibition of the mixing of waste
                                                                      oils laid down by paragraphs 2 ( 1 ) and 4 ( 1 ) and ( 2 ) of
Action brought on 10 March 1997 by the Commission of                  the Altolverordnung prevents high-grade waste oils from
the European Communities against the Federal Republic                 being extracted by the regenerating industry, and thus
                             of Germany                               represents a condition of regeneration, it does not
                          ( Case C-102/97)                            establish any priority in favour of regeneration.
                             97/C 142/21 )
                                                                      ( 1 ) Council Directive 75/439/EEC of 16 June 1975 on the
                                                                            disposal of waste oils ( OJ No L 194, 1975, p. 31 ).
An action against the Federal Republic of Germany was                 ( 2 ) Council   Directive       87/ 101 /EEC of 22  December     1986
brought before the Court of Justice of the European                         amending Directive 75/439/EEC on the disposal of waste oils
Communities on 10 March 1997 by the Commission of                           ( OJ No L 42 , 12 . 2 . 1987, p. 43 ).
the European Communities, represented by Gotz zur
Hausen, Legal Adviser in the Commission, with an
address for service in Luxembourg at the office of Carlos
Gomez de la Cruz, of the Legal Service of the European
Commission, Wagner Centre C 254, Kirchberg.
                                                                      Reference for a preliminary ruling from the Amt der
The applicant claims that the Court should:                           Tiroler Regierung (Landesvergabeamt) by order of that
                                                                      body of 7 November 1996 in the review proceedings
— declare that, by failing to give priority to the material,          brought by Josef Kollensperger GmbH & Co KG and
     rather than the thermal, processing of waste oils,                           Atzwanger AG against Gemeindeverband
     notwithstanding that such processing is not precluded                                 Bezirkskrankenhaus Schwaz
     by any economic, technical or organizational                                                   ( Case C-103/97 )
    constraints, the Federal Republic of Germany has
     failed to fulfil its obligations under Article 3 ( 1 ) of                                        ( 97/C 142/22 )
     Council Directive 75/439/EEC H as amended by
    Directive 87/ 101 /EEC ( 2 ),                                     Reference has been made to the Court of Justice of the
                                                                      European Communities by an order of the Amt der Tiroler
— order the Federal Republic of Germany to pay the                    Landesregierung, Landesvergabeamt ( Office of the
    costs .                                                           Regional Government for the Tyrol — Regional Public


title: Case C-74/04 P: Appeal brought on 16 February 2004 by the Commission of the European Communities against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/24

         Appeal brought on 16 February 2004 by the Commission of the European Communities against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities
   (Case C-74/04 P)
   (2004/C 94/51)
   An appeal against the judgment delivered on 3 December 2003 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-208/01 between Volkswagen AG and Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 February 2004 by the Commission of the European Communities, represented by Walter Mölls, acting as Agent, assisted by Dr Heinz-Joachim Freund, Rechtsanwalt, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               set aside the judgment of the Court of First Instance of 3 December 2003 in Case T-208/01; (1)

               2.

               refer the case back to the Court of First Instance;

               3.

               order the respondent to pay the costs.

         Pleas in law and main arguments
   By the abovementioned judgment, the Court of First Instance annulled Commission Decision 2001/711/EC of 29 June 2001 relating to a proceeding under Article 81 of the EC Treaty (Case COMP/F-2/36.693 — Volkswagen) (2). In that decision, the Commission had found that between June 1996 and September 1999 Volkswagen had agreed a fixed resale price with its German dealers, contrary to Article 81 EC. The decision imposed upon Volkswagen a fine of EUR 30.96 million.
   The Court found that the demands made by Volkswagen AG to its German dealers did not become part of the dealership agreements since they were unlawful. They were unilateral measures not covered by Article 81 EC.
   In so reasoning the Court has misapplied the concept of agreement as set out in Article 81(1) EC and so breached that provision.
   In the Commission's view the Court is requiring too high a level of knowledge from the parties to a selective distribution agreement of its application and development in practice. At the same time it is confusing those demands with the requirements for the agreement to be lawful.
   In this connection, the Court is overlooking in particular the peculiarities of selective distribution systems, which are based upon a framework agreement which requires to be completed and put into more concrete terms. The fact that such an agreement is not itself unlawful at a certain time does not preclude its becoming so at a later date. As regards the dealers in particular, their general interest is in retaining their position as members of the distribution system. It cannot be assumed that they systematically — to a certain degree preventatively — upon the conclusion of the contract reject all later requirements which may prove to be unlawful. That applies particularly when, depending on the circumstances, the dividing line between lawful and unlawful measures can be difficult to determine.
   The Commission's line of argument is confirmed by the established case-law of the Court of Justice, which the Court of First Instance has misinterpreted. In the present case, in addition, it can clearly be seen from the actions of the parties (manufacturer and dealers) that they regarded the requirements as part of the dealership contract. Those facts also prove that the reasoning of the Court of First Instance is incorrect. In so far as the Court regarded them as irrelevant (in the case of the manufacturer) or entirely ignored them (in the case of the dealer), that is due to the abovementioned error regarding the concept of agreement.

      (1)  Not yet published in the European Court Reports.

      (2)  OJ 2001 L 262, p. 14.


title: Case T-16/02: Action brought on 30 January 2002 by Audi AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 97/12               EN                     Official Journal of the European Communities                                      20.4.2002
The applicant asserts that the decision refusing his application        Grounds of claim:              —     incorrect application of the
is contrary to Article 5(2) of Annex VII, since the conditions                                               provisions of Regulation
for granting an installation allowance are fulfilled, and that the                                           (EC) No 40/94 (1) and of
European Parliament cannot validly rely on the ground of                                                     Regulation (EC) No 2868/
exclusion laid down in Article 5(4) of Annex VII.                                                            95 (2);
                                                                                —     incorrect application of
                                                                                Article 7(1)(b) and (c) of
                                                                                Regulation (EC) No 40/94;
                                                                                —     incorrect application of
                                                                                Article 7(3) of Regulation
                                                                                (EC) No 40/94.
Action brought on 30 January 2002 by Audi AG against
the Office for Harmonisation in the Internal Market
                                                                        (1) Council Regulation (EC) No 40/94 of 20.12.1003 on the Com-
                  (Trade Marks and Designs)
                                                                            munity trade mark (OJ 1994 L 11, p. 1).
                                                                            (2) Commission Regulation (EC) No 2868/95 of 13 December
                                                                            1995 implementing Council Regulation (EC) No 40/94 on the
                         (Case T-16/02)                                     Community trade mark (OJ 1995 L 303, p. 1).
                         (2002/C 97/25)
                  (Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on                  Action brought on 29 January 2002 by Fred Olsen S.A.
30 January 2002 by Audi AG, of Ingolstadt (Germany),                         against Commission of the European Communities
represented by L. von Zumbusch, lawyer.
                                                                                (Case T-17/02)
The applicant claims that the Court should:
                                                                                (2002/C 97/26)
—     annul the decision adopted on 8 November 2001 by the
      First Board of Appeal in appeal No R 0652/2000-1;
                                                                                (Language of the case: Spanish)
—     order the defendant Office to pay the costs.
                                                                        An action against the Commission of the European Communi-
Pleas in law and main arguments                                         ties was brought before the Court of First Instance of the
                                                                        European Communities on 29 January 2002 by Fred Olsen
                                                                        S.A., whose registered office is in Santa Cruz de Tenerife
The trade mark con-           the verbal mark ‘TDI’ — appli-            (Spain), represented by Rafael Marı́n Correa, lawyer.
cerned:                       cation No 19752
Goods or services:            goods and services in Classes 12          The applicant claims that the Court should:
                              and 37 (vehicles and constructive
                              parts thereof; repair and mainten-        —      annul the decision of the Commission of 25 July 2001
                              ance of vehicles)
Decision        contested     refusal of registration by the            —      order the Commission of the European Communities
before the Board of           examiner                                         to initiate the procedure for verifying whether aid is
Appeal:                                                                        compatible with the EC Treaty in accordance with its
                                                                               judgment;
Decision of the Board of      rejection of the appeal
Appeal:                                                                 —      order the defendant to pay the costs.


title: Case C-110/14: Request for a preliminary ruling from the Judecătoria Oradea (Romania) lodged on 7 March 2014  — Horațiu Ovidiu Costea v SC Volksbank România SA

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/21

         Request for a preliminary ruling from the Judecătoria Oradea (Romania) lodged on 7 March 2014 — Horațiu Ovidiu Costea v SC Volksbank România SA
   (Case C-110/14)
   2014/C 175/25
   Language of the case: Romanian

      Referring court

   Judecătoria Oradea

      Parties to the main proceedings

      Applicant: Horațiu Ovidiu Costea

      Defendant: SC Volksbank România SA

      Question referred

   Must Article 2(b) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (1) be interpreted as including in, or as excluding from, the definition of ‘consumer’ a natural person who practises as a lawyer and concludes a credit agreement with a bank, in which the purpose of the credit concerned is not specified, when in that agreement that natural person’s law firm is stated to be the guarantor for the mortgage?

      (1)  OJ 1993 L 95, p. 29.