title: Judgment of the Court of 12 November 2002 in Case C-206/01 (Reference for a preliminary ruling from the High Court of Justice (England & Wales), Chancery Division): Arsenal Football Club plc v Matthew Reed (Approximation of laws — Trade marks — Directive 89/104/EEC — Article 5(1)(a) — Scope of the proprietor's exclusive right to the trade mark)

text:
C 323/22                EN                       Official Journal of the European Communities                                         21.12.2002
C.W.A. Timmermans (Rapporteur), President of the Chamber,                   party uses in the course of trade a sign which is identical to a validly
D.A.O. Edward and S. von Bahr, Judges; F.G. Jacobs, Advocate                registered trade mark on goods which are identical to those for which
General; R. Grass, Registrar, has given a judgment on 7 Novem-              it is registered, the trade mark proprietor of the mark is entitled, in
ber 2002, in which it:                                                      circumstances such as those in the present case, to rely on Article
                                                                            5(1)(a) of that directive to prevent that use. It is immaterial that, in
                                                                            the context of that use, the sign is perceived as a badge of support for
1.    Dismisses the appeal;                                                 or loyalty or affiliation to the trade mark proprietor.
2.    Orders Mr Hirschfeldt to pay the costs.
                                                                            (1 ) OJ C 212 of 28.7.2001.
( 1) OJ C 200 of 14.7.2001.
                                                                                JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                 JUDGMENT OF THE COURT
                                                                                of 7 November 2002
                      of 12 November 2002
                                                                            In Joined Cases C-228/01 and C-289/01 (Reference for a
in Case C-206/01 (Reference for a preliminary ruling from                   preliminary ruling from the tribunal de grande instance
the High Court of Justice (England & Wales), Chancery                         de Dax): Jacques Bourrasse and Jean-Marie Perchicot ( 1)
   Division): Arsenal Football Club plc v Matthew Reed (1)
                                                                            (Transport— Directive 84/647/EEC — Use of vehicles hired
(Approximation of laws — Trade marks — Directive 89/                        without drivers for the carriage of goods by road —
104/EEC — Article 5(1)(a) — Scope of the proprietor’s                       Registration of hired vehicles — Hired vehicles operating
                exclusive right to the trade mark)                          under Community authorisation — Regulation (EEC)
                                                                            No 881/92 — Management of tachograph discs of hired
                                                                                vehicles — Regulation (EEC) No 3821/85)
                          (2002/C 323/29)
                                                                                (2002/C 323/30)
                   (Language of the case: English)
                                                                                (Language of the case: French)
                                                                            (Provisional translation; the definitive translation will be published
In Case C-206/01: Reference to the Court under Article 234
                                                                                in the European Court Reports)
EC by the High Court of Justice of England and Wales,
Chancery Division, for a preliminary ruling in the proceedings
pending before that court between Arsenal Football Club plc
and Matthew Reed, on the interpretation of Article 5(1)(a) of
the First Council Directive 89/104/EEC of 21 December 1988                  In Joined Cases C-228/01 and C-289/01: Reference to the
to approximate the laws of the Member States relating to trade              Court under Article 234 EC by the Cour d’appel de Pau (C-228/
marks (OJ 1989 L 40, p. 1), the Court, composed of:                         01) and the Tribunal de grande instance de Dax (C-289/01)
G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet,          (France) for a preliminary ruling in the criminal proceedings
C.W.A. Timmermans (Rapporteur) (Presidents of Chambers),                    pending before those courts against Jacques Bourrasse (C-228/
C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris, F. Macken,                  01) and Jean-Marie Perchicot (C-289/01) Third parties: Union
N. Colneric and S. von Bahr, Judges; D. Ruiz-Jarabo Colomer,                régionale syndicale des petits et moyens transporteurs du Sud-
Advocate General; L. Hewlett, Principal Administrator, for the              Ouest (Unostra Aquitaine) (C-228/01), Fédération générale des
Registrar, has given a judgment on 12 November 2002, in                     transports et de l’équipement CFDT (FGTE-CFDT) (C-289/01)
which it has ruled:                                                         and Inspection du travail des transports (C-228/01 and C-289/
                                                                            01), and on the interpretation of Article 2 of Council Directive
                                                                            84/647/EEC of 19 December 1984 on the use of vehicles
In a situation which is not covered by Article 6(1) of the First Council    hired without drivers for the carriage of goods by road (OJ
Directive 89/104/EEC of 21 December 1988 to approximate the                 1984 L 335, p. 72), as amended by Council Directive 90/398/
laws of the Member States relating to trade marks, where a third            EEC of 24 July 1990 (OJ 1990 L 202, p. 46), the Court (Second


title: Case C-289/99 P: Appeal brought on 3 August 1999 by Schiocchet, a company incorporated under French law, against the order made on 21 May 1999 by the First Chamber of the Court of First Instance of the European Communities in Joined Cases T-169/98 and T-170/98 between Schiocchet and the Commission of the European Communities

text:
C 281/10              EN                    Official Journal of the European Communities                                     2.10.1999
The nationality requirement laid down in Article 134 the               represented by Hendrik van Lier and Léna Ström, Legal
Consolidated Legislation on Public Security thus cannot be             Advisers, acting as Agents, with an address for service in
imposed on service providers established in other countries.           Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
Such an obstacle is discriminatory and therefore contrary to           Centre, Kirchberg.
Article 59 of the EC Treaty (now, after amendment, Article 49
EC). The effect of such legislation is to deny undertakings            The Commission of the European Communities claims that
established in other countries of the Community any chance             the Court should:
of providing security services in Italy so long as they retain a
head office in another country.                                        — declare that, by failing to adopt the measures necessary in
                                                                            order to ensure complete and correct transposition of
                                                                            Council Directive 89/369/EEC of 8 June 1989 on the
                                                                            prevention of air pollution from new municipal waste
                                                                            incineration plants (1) and Council Directive 89/429/EEC
                                                                            of 21 June 1989 on the reduction of air pollution from
                                                                            existing municipal waste-incineration plants (2), the
                                                                            Kingdom of Belgium has failed to fulfil its obligations
Reference for a preliminary ruling by the Landesgericht                     under Articles 6 and 8 of Directive 89/369/EEC and
Korneuburg (Austria) by order of 5 July 1999 in the case                    Articles 2, 6 and 7 of Directive 89/429/EEC;
 of New Yorker S.H.K. Jeans GmbH v Ing. Jaroslav Kupco                 — order the Kingdom of Belgium to pay the costs.
                        (Case C-284/99)
                                                                       Pleas in law and main arguments
                        (1999/C 281/19)                                The Commission proposes to limit the present proceedings to
                                                                       the Brussels-Capital Region.
Reference has been made to the Court of Justice of the
European Communities by order of 5 July 1999 from the                  In relation to Directive 89/369/EEC, the Commission refers to
Landesgericht Korneuburg (Regional Court, Korneuburg) (Aus-            a series of respects in which the rules applying to Brussels are
tria), which was received at the Court Registry on 29 July             not in conformity with the directive, particularly as regards the
1999, for a preliminary ruling in the case of New Yorker               absence of any obligation on the authorities requiring them to
S.H.K. Jeans GmbH v Ing. Jaroslav Kupco on the following               take action in the event that standards are exceeded and the
question:                                                              absence of any detailed provisions regarding the obligations
                                                                       incumbent on undertakings.
On a proper construction of Article 1 thereof, is Council
Regulation (EC) No 3295/94 of 22 December 1994 laying                  In relation to Directive 89/429/EEC, the Commission declares
down measures to prohibit the release for free circulation,            that Articles 6(3) to (5) and 7(1) and (2) of the directive have
export, re-export or entry for a suspensive procedure of               not been transposed.
counterfeit and pirated goods (1) also applicable to situations
in which goods of the type specified therein are, in the course
of transit between two States not belonging to the European            (1) OJ L 163 of 14.6.1989, p. 32.
                                                                       (2) OJ L 203 of 15.7.1989, p. 50.
Community, temporarily detained by customs authorities in a
Member State on the basis of that regulation, at the request of
a holder of rights who claims that his rights have been
infringed and whose undertaking has its registered office in a
Member State of the European Community?
(1) OJ L 341 of 30.12.1994.                                            Appeal brought on 3 August 1999 by Schiocchet, a
                                                                       company incorporated under French law, against the
                                                                       order made on 21 May 1999 by the First Chamber of the
                                                                       Court of First Instance of the European Communities in
                                                                       Joined Cases T-169/98 and T-170/98 between Schiocchet
                                                                           and the Commission of the European Communities
                                                                                (Case C-289/99 P)
Action brought on 30 July 1999 by the Commission
of the European Communities against the Kingdom of                                             (1999/C 281/21)
                            Belgium
                                                                       An appeal against the order made on 21 May 1999 by the
                        (Case C-287/99)                                First Chamber of the Court of First Instance of the European
                                                                       Communities in Joined Cases T-169/98 and T-170/98 between
                                                                       Schiocchet and the Commission of the European Communities
                        (1999/C 281/20)                                was brought before the Court of Justice of the European
                                                                       Communities on 3 August 1999 by Schiocchet, represented
An action against the Kingdom of Belgium was brought before            by Pascal Barbier, of the Thionville Bar, with an address for
the Court of Justice of the European Communities on 30 July            service in Luxembourg at the offices of the Viva Vacances
1999 by the Commission of the European Communities,                    agency, 33 Rue de Strasbourg.
 ---pagebreak--- 2.10.1999              EN                    Official Journal of the European Communities                                       C 281/11
The appellant claims that the Court should:                             Action brought on 3 August 1999 by the Commission of
                                                                         the European Communities against the French Republic
(1) set aside the contested order in so far as it dismisses the
    claims under Article 173 of the Treaty;                                                     (Case C-292/99)
(2) allow the appellant’s claim (1);
                                                                                (1999/C 281/22)
(3) alternatively, in the event that the Court accepts the appeal,
    examine the case and rule on the unresolved points of the           An action against the French Republic was brought before the
    application, having regard to the principle of the essential        Court of Justice of the European Communities on 3 August
    need to ensure the impartiality of the court seised of the          1999 by the Commission of the European Communities,
    master, and, principally, on the validity of the provisions         represented by Hendrik van Lier and Léna Ström, Legal
    of Council Regulation 684/92 of 16 March 1992 (2);                  Advisers, acting as Agents, with an address for service in
                                                                        Luxembourg at the office of Carlos Gómez de la Cruz, Wagner
                                                                        Centre, Kirchberg.
(4) order the Commission to pay all the costs, both of the
    proceedings at first instance and of the proceedings before
    the Court of Justice.                                               The Commission of the European Communities claims that
                                                                        the Court should:
                                                                        — declare that, by failing to draw up management plans
                                                                            either for the whole of its territory or for all waste, and by
Pleas in law and main arguments                                             failing to include a chapter relating to packaging waste in
                                                                            all the waste plans adopted, the French Republic has failed
                                                                            to fulfil its obligations under Article 7(1) of Directive
— Distortion of the facts by virtue of the legal characterisation           75/442/EEC on waste (1), as amended by Directive
    applied to them, and of the evidence: the contested order               91/156/EEC (2), Article 6(1) of Directive 91/689/EEC on
    distorted the concept of acts producing binding effects for             hazardous waste (3) and Article 14 of Directive 94/62/EC
    the purposes of the fourth paragraph of Article 173 of the              on packaging and packaging waste (4);
    EC Treaty by taking the view that the contested decision
    (in the form of a letter stating that no action was to be
                                                                        — order the French Republic to pay the costs.
    taken on the complaint) did not involve measures which
    might affect the appellant’s legal situation;
— Contravention of the principle of complete legal certainty,
    by means of Article 234 EC: the contested order wrongly             Pleas in law and main arguments
    finds that the appellant should have pleaded the illegality
    of Regulation No 684/92 before the national court;                  — Infringement of Article 7(1) of Directive 75/442/EEC (as
                                                                            amended) and of Article 6(1) of Directive 91/689/EEC:
— Distortion of the nature of the application: it was wrongly               twelve of the one hundred French départements do not have
    held in the contested order that the actions for annulment              a ‘departmental plan for the elimination of domestic and
    were intended, in substance, to obtain a declaration that               related waste’ as provided for by the French legislation
    the French State had failed to comply with its Treaty                   transposing the abovementioned directives, and six of the
    obligations, whereas, in reality, they were principally                 twenty six French regions do not have a ‘regional plan for
    directed against the conduct of undertakings supported by               the elimination of waste other than domestic and related
    the French authorities which were engaged in practices                  waste’.
    contrary to Community competition law, analogous to
    those referred to in Council Regulation (EEC) No 1017/68            — Infringement of Article 7(1) of Directive 75/442/EEC (as
    in the field of transport by road.                                      amended) and of Article 6(1) of Directive 91/689/EEC: the
                                                                            existing waste management plans do not cover all of
                                                                            the waste which is the subject of the abovementioned
                                                                            directives. Thus, most of the regional plans do not take
                                                                            into account PCBs (the French Government seeks to justify
(1) OJ C 378 of 5.12.1998, pp. 25 and 26.
(2) OJ L 74 of 20.3.1992, p. 1.                                             this by citing the imminent transposition of Directive
                                                                            96/59/EC); the ‘schemes for the elimination of hospital
                                                                            waste’ do not constitute plans for the implementation of
                                                                            the requirements laid down by Community law, and the
                                                                            six regions possessing such plans are not therefore covered
                                                                            by a plan relating to that category of waste; moreover, in
                                                                            18 départements ‘special domestic waste’ is not covered by
                                                                            either a regional or a departmental plan.


title: Case T-6/02: Action brought on 18 January 2002 by Michael Gerhard Franz Platte against Commission of the European Communities

text:
6.4.2002                 EN                  Official Journal of the European Communities                                      C 84/65
The applicants claim that the Court should:                             one and the same Member State. Finally, this was not a partial
                                                                        transfer of an undertaking but a merger.
—     declare that, by failing to reach a decision on the
      complaint lodged by the applicants against a concen-
      tration with a Community dimension, which was notified
      and approved at national level by the Vienna Oberlandes-
      gericht (Higher Regional Court), in its capacity as Kar-          Action brought on 18 January 2002 by Michael Gerhard
      tellgericht (Restrictive Practices Court) by decision of          Franz Platte against Commission of the European Com-
      26 February 2001, or, in the alternative, by failing to                                       munities
      require the parties to the concentration to notify the
      defendant of the concentration, the defendant failed to                                     (Case T-6/02)
      fulfil its obligations under the EC Treaty;
                                                                                (2002/C 84/119)
—     order the defendant to pay the costs.
                                                                                (Language of the case: French)
Pleas in law and main arguments                                         An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 18 January 2002 by Michael
By letter of 25 May 2001, the applicants, as owners of Austrian         Gerhard Franz Platte, residing in Tielt-Winge (Belgium), rep-
newspapers, lodged with the defendant a complaint regarding             resented by Xavier De Kesel, lawyer.
a media concentration which had been approved in Austria, to
which the companies Bertelsmann, Gruner+Jahr, Raffeisen,                The applicant claims that the Court should:
KURIER-Magazine and NEWS were parties, and which, accord-
ing to the applicants, had a Community dimension. The                   —     annul the decision of 6 September 2001 being appealed
complaint was accompanied by the request that the parties to                  against and make an order emending and implementing
the concentration be required to notify the concentration in                  what the appointing authority ought to have done,
accordance with Council Directive (EEC) No 4064/89.                           namely appoint the applicant to Grade C 4.
DG Competition took the view, in a number of letters, that              Pleas in law and main arguments
the abovementioned regulation was not applicable to the
concentration in question, as there had only been a partial             The applicant was classified, upon taking up his duties, in
transfer, which did not involve at least two undertakings with          Grade C 5. In his application, the applicant contests that
turnovers of more than EUR 250 million. DG Competition                  decision. According to the applicant, he should, in view of his
pointed out, however, that that view was not binding on the             previous experience and of the fact that the requirements of
defendant.                                                              the service call for the recruitment of a particularly well-
                                                                        qualified person, have been classified in Grade C 4.
Since the defendant failed to react within two months to the
applicants’ request for a formal decision on the complaint, the
applicants have brought an action under Article 232 EC for a
declaration of failure to act. They submit that in the absence
of a decision attributable to the defendant, it is not possible to             Removal from the register of Case T-315/00 (1)
bring an action for annulment before the Court of First
Instance, and that the applicants are directly and individually                                 (2002/C 84/120)
concerned by the defendant’s failure to adopt a decision.
                                                                                (Language of the case: Italian)
The applicants claim that the national decision is invalid under
Article 81 EC in conjunction with Regulation 4064/89,                   By order of 29 November 2001 the President of the Fourth
because, contrary to Article 21(2) of that regulation, the              Chamber of the Court of First Instance of the European
Republic of Austria applied its national competition law to a           Communities Case T-315/00 Associazione delle Cantine Socia-
concentration with a Community dimension. In addition, they             li Venete e della Cantina dei Colli Berici against Commission
claim that there are two parties to the concentration with              of the European Communities, was removed from the register.
turnovers in excess of EUR 250 million, one of which does
not achieve more than two-thirds of its annual turnover within          (1) OJ C 335 of 25 November 2000.


title: Case C-241/02 P: Appeal brought on 1 July 2002 by the International and European Public Services Organisation (IPSO) against the order of 18 April 2002 of the Fourth Chamber of the Court of First Instance of the European Communities in Case T-238/00 between (1) the International and European Public Services Organisation (IPSO), (2) the Union of Staff of the European Central Bank (U.S.E.) and the European Central Bank

text:
C 191/22               EN                   Official Journal of the European Communities                                     10.8.2002
the Court Registry on 17 June 2002, for a preliminary ruling           Appeal brought on 1 July 2002 by the International and
in the case of Rosa Garcı́a Blanco against Instituto Nacional de       European Public Services Organisation (IPSO) against the
la Seguridad Social and Tesoreria General de la Seguridad              order of 18 April 2002 of the Fourth Chamber of the
Social on the following questions:                                     Court of First Instance of the European Communities in
                                                                       Case T-238/00 between (1) the International and Euro-
                                                                       pean Public Services Organisation (IPSO), (2) the Union
                                                                       of Staff of the European Central Bank (U.S.E.) and the
                                                                                European Central Bank
1.   Do Article 12 and Articles 39 to 42 of the Treaty on
     European Union (Article 6 and Articles 48 to 52 of
     the Treaty establishing the European Community) and                                       (Case C-241/02 P)
     Article 45 of Regulation (EEC) No 1408/71 of the Council
     of 14 June 1971, preclude a national provision under
     which retirement contributions which the Organismo                                         (2002/C 191/36)
     Gestor del Seguro del Desempleo paid on behalf of a
     worker for the period during which she was receiving
     certain unemployment benefits, are not taken into
     account for the purposes of covering the various qualify-         An appeal against the order of 18 April 2002 of the Fourth
     ing periods established in the national legislation and of        Chamber of the Court of First Instance of the European
     giving entitlement to the old-age pension, when, because          Communities in Case T-238/00 between (1) the International
     of the long period of unemployment which it is sought             and European Public Services Organisation (IPSO), (2) the
     to protect, it is absolutely impossible for that worker to        Union of Staff of the European Central Bank (U.S.E.) and the
     claim credit for retirement contributions other that those        European Central Bank was brought before the Court of Justice
     which have been invalidated by law, with the result that          of the European Communities on 1 July 2002 by the
     only workers who have exercised the right to freedom of           International and European Public Services Organisation
     movement are affected by that provision of national law           (IPSO), represented by Boris Karthaus, Rechtsanwalt, Roth
     and are unable to qualify for the national retirement             Rechtsanwälte, Eckenheimer Landstraße 38, D-60318 Frank-
     pension, despite the fact that, under Article 45 of               furt am Main, with an address for service at the offices of Marc
     the aforementioned (EEC) Regulation, those qualifying             Glesener, Chairman of the Association Luxembourgeoise des
     periods would have been regarded as completed?                    Employés des Banques et d’Assurances, 29 Avenue Monterey,
                                                                       B.P. 325, L-2013, Luxembourg.
                                                                       The appellant claims that the Court should:
2.   Do Article 12 and Articles 39 to 42 of the Treaty on
     European Union (Article 6 and Articles 48 to 52 of
     the Treaty establishing the European Community) and               1.    set aside the order of the Court of First Instance of
     Article 48(1) of Regulation (EEC) No 1408/71 of the                     18 April 2002 in Case T-238/00 (1), notified to the
     Council of 14 June 1971, preclude national provisions                   appellants on 26 April 2002;
     under which retirement contributions which the Orga-
     nismo Gestor del Seguro de Desempleo paid on behalf of            2.    annul the decision of the European Central Bank of 7 July
     a worker for the period during which she was receiving                  2000;
     certain unemployment benefits, are not taken into
     account for the purposes of considering whether ‘the              3.    order the European Central Bank to pay the costs of the
     total insurance or residence periods covered under the                  proceedings.
     legislation of that State amounts to one year’, when,
     because of the long period of unemployment which it is
     sought to protect, it is absolutely impossible for that
     worker to claim credit for retirement contributions
     other than those which fell due and were paid during              Pleas in law and main arguments
     unemployment, so that only workers who have exercised
     the right to freedom of movement are affected by that
     provision of national law and are unable to qualify for           In the contested order, the Court of First Instance incorrectly
     the national retirement pension, despite the fact that,           applied Community law by failing to observe the principle of
     under Article 48(1) of the aforementioned EEC Regu-               effective judicial protection (Articles 6 and 13 of ECHR and
     lation, the national Organismo Gestor could not be                the constitutional traditions of the Member States). It failed
     exempt from the obligation to award national benefits?            to observe the principle of effective judicial protection by
                                                                       incorrectly interpreting the expression ‘individual concern’ in
                                                                       paragraph four of Article 230 EC. The Court of First Instance
                                                                       defines the class of ‘all other persons’ too narrowly, by
                                                                       restricting it to trade unions and failing to take account of all
                                                                       other persons affected by the Conditions of Employment and
                                                                       Staff Rules and is therefore unable to see precisely what
                                                                       differentiates the applicants from ‘all other persons’, namely
                                                                       the fact that they are able to conclude collective agreements
 ---pagebreak--- 10.8.2002              EN                     Official Journal of the European Communities                                   C 191/23
(and to organise any necessary strikes to that end). Conse-                     Removal from the register of Case C-178/01 (1)
quently, a possible infringement of a fundamental right (the
freedom to form an association) cannot be examined by the                                       (2002/C 191/38)
Community judicature in precisely those cases where such an
infringement concerns, in a general and abstract manner, all
potential holders of the fundamental right, i.e. where it is             By order of 18 April 2002 the President of the Court of Justice
based on a legislative provision.                                        of the European Communities ordered the removal from the
                                                                         register of Case C-178/01: Commission of the European
(1) Not yet published in the European Court Report.                      Communities v Republic of Austria.
                                                                         (1) OJ C 212 of 28.7.2001.
       Removal from the register of Case C-357/00 (1)
                         (2002/C 191/37)
                                                                                Removal from the register of Case C-214/01 (1)
                                                                                (2002/C 191/39)
By order of 16 April 2002 the President of the Sixth Chamber
of the Court of Justice of the European Communities ordered
the removal from the register of Case C-357/00 (Reference for
a preliminary ruling by the Verwaltungsgericht Bremen): Fikri            By order of 15 April 2002 the President of the Court of Justice
Akdenk v Stadtgemeinde Bremen.                                           of the European Communities ordered the removal from the
                                                                         register of Case C-214/01: Commission of the European
                                                                         Communities v Federal Republic of Germany.
(1) OJ C 355 of 9.12.2000.
                                                                         (1) OJ C 212 of 28.7.2001.


title: Case T-359/99: Action brought on 24 December 1999 by DKV Deutsche Krankenversicherungs AG against the Office for Harmonisation in the Internal Market (Trade marks and Designs)

text:
C 79/38                 EN                    Official Journal of the European Communities                                      18.3.2000
     necessarily caught by the inward processing system and                  Community trade mark in the Community Trade Marks
     were thus constantly monitored by the Turkish customs                   Bulletin for the claimed services in Class 36 (insurance;
     authorities. It was the customs offices themselves which                financial affairs);
     stamped generally on the same day the export declarations
     which cleared the importation of duty-free components
                                                                         — in the alternative, annul the contested decision;
     and the ATRS. The Turkish offices themselves also dealt
     with clearance of licences, the recovery of securities, export
     formalities and the issuing of ATR certificates.                    — order the Office to pay such of the applicant’s costs as are
                                                                             recoverable.
— the Commission, despite being aware of the problem posed
     by the irregularities concerning the payment of the Turkish
     duties on components originating in third countries, did
     not consider that it should take appropriate measures to            Pleas in law and main arguments
     alert the operators concerned.
                                                                         Trade mark:                   Word mark ‘EuroHealth’ — appli-
— the error was not evident to the company, whose good                                                 cation no 293977
     faith was beyond reproach, and that they cannot be
     accused of being negligent.                                         Goods or services:            Goods and services in Class 36
                                                                                (insurance; financial affairs)
— it is justified in relying in the present case on a special
     circumstance within the meaning of Article 13 of Regu-              Decision         contested    Refusal by the examiner to regis-
     lation No 1430/79.                                                  before the Board of           ter
                                                                         Appeal:
Finally, the applicant takes the view that in any event, in the
operations in question, it acted as fiscal representative for the        Pleas in law:                 — infringement of Article 7(1)(b)
importer, which alone could be considered liable for any                                                   of Regulation (EC) No 40/94
customs debt.
                                                                                — misapplication of Article
                                                                                7(1)(c) of Regulation (EC)
                                                                                No 40/94
                                                                                — failure to take into account
                                                                                Article 12(b) of Regulation
                                                                                (EC) No 40/94
Action brought on 24 December 1999 by DKV Deutsche
Krankenversicherungs AG against the Office for Harmon-
 isation in the Internal Market (Trade marks and Designs)
                          (Case T-359/99)
                           (2000/C 79/80)
                                                                         Action brought on 30 December 1999 by Karl L. Meyer
                                                                         against the Commission of the European Communities
                                                                                and the European Investment Bank
                   (Language of the case: German)
                                                                                (Case T-361/99)
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                                            (2000/C 79/81)
24 December 1999 by DKV Deutsche Krankenversicherungs
AG, Cologne, Germany, represented by Stephan v. Peter-
dorff-Campen, of von Rospatt, von der Osten, Pross, of the                                  (Language of the case: French)
Düsseldorf Bar, with an address for service in Luxembourg at
the chambers of De Bandt, van Hecke, Lagae & Loesch, 11 Rue
Goethe, Luxembourg.                                                      An action against the Commission of the European Communi-
                                                                         ties and the European Investment Bank was brought before
                                                                         the Court of First Instance of the European Communities on
The applicant claims that the Court should:                              30 December 1999 by Karl L. Meyer, of Raiatea, French
                                                                         Polynesia, represented by Jean-Dominique des Arcis, of Uturoa,
— vary the contested decision and order the office to                    French Polynesia, with an address for service in Luxembourg
     publish the sign EuroHealth, application no 293977, as a            at the offices of Mr Pakowski, 20-22 Avenue Emile Reuter.


title: Case T-6/00: Action brought on 17 January 2000 by Technische Unie BV against the Commission of the European Communities

text:
C 149/34               EN                     Official Journal of the European Communities                                   27.5.2000
Action brought on 17 January 2000 by Technische Unie                     non-discrimination to single out TU as being the only FEG
BV against the Commission of the European Communities                    member liable, and the Commission has failed to provide a
                                                                         sufficient statement of reasons as to why TU should be held
                           (Case T-6/00)                                 liable together with FEG. In addition, the Commission has
                                                                         erred as regards the facts and the law. There was no collective
                                                                         exclusive dealing, no horizontal pricing pressure and thus no
                         (2000/C 149/65)                                 connection between the two. Furthermore, the Commission
                                                                         has infringed the rights of the defence in various ways. First,
                                                                         the decision was adopted out of time. Second, it is based on
                    (Language of the case: Dutch)                        facts which were not mentioned in the statement of objections,
                                                                         and the Commission has acted contrary to the principle of the
An action against the Commission of the European Communi-                presumption of innocence and the principle in dubio pro reo
ties was brought before the Court of First Instance of the               flowing therefrom. Finally, the applicant claims that the fine
European Communities on 17 January 2000 by Technische                    imposed in unreasonable, or at any rate discriminatory and/or
Unie BV, established at Amstelveen, represented by P.V.F. Bos            lacking in a sufficient statement of reasons.
and M.A. Coumans, of the law firm Trenité van Doorne,
Rotterdam, with an address for service in Luxembourg at the
                                                                         (1) OJ L 39 of 14.2.2000.
Chambers of De Bandt, Van Hecke, Lagae & Loesch, 11 Rue
Goethe.
The applicant claims that the Court should:
— declare the action admissible;
— primarily, annul the Commission’s decision (document
                                                                         An action brought on 18 January 2000 by Hyper Srl
    number C(1999) 3439 final) of 26 October 1999 (1)
                                                                           against the Commission of the European Communities
    concerning a proceeding pursuant to Article 81 of the EC
    Treaty in Case IV/33.884 — Nederlandse Federatieve
    Vereniging voor de Groothandel op Elektrotechnisch Ge-                                          (Case T-7/00)
    bied and Technische Unie (FEG and TU);
                                                                                (2000/C 149/66)
— in the alternative, annul Articles 3 and 5(2) of that decision;
— in the further alternative, reduce the fine imposed in Article
    5(2) of that decision;                                                                 (Language of the case: German)
— order the Commission to pay the costs.                                 An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 18 January 2000 by Hyper Srl,
Pleas in law and principal arguments                                     Limena, Italy, represented by Dr Dietrich Ehle and Dr Dirk
                                                                         Ehle, of the Cologne Bar, with an address for service in
                                                                         Luxembourg at the Chambers of Marc Lucius, 6 Rue Michel
The applicant is the largest wholesale distributor of electrotech-
                                                                         Welter, Luxembourg.
nical fittings in the Netherlands and the largest member of
FEG, a sectorial association established to protect the common
interests of stockkeeping wholesalers of electrotechnical fit-           The applicant claims that the Court should:
tings. In response to a complaint submitted in 1991, the
Commission in 1999 adopted a decision in which it found                  — annul the Commission’s decision of 30 September 1999
that the applicant had infringed Article 81(1) EC by taking an               (REM 2/98),
active part in infringements committed by FEG. The latter had
infringed Article 81 EC by entering into a collective exclusive          — order the defendant to pay the costs.
dealing arrangement intended to prevent supplies to non-
members of FEG, on the basis of an agreement with the
Nederlandse Agentenvereniging op Elektrotechnisch Gebied
                                                                         Pleas in law and main arguments
(‘NAVEG’) and of practices concerted with suppliers not
represented in NAVEG. The Commission further found that
the FEG had infringed Article 81(1) EC by directly and                   The Commission found in the contested decision addressed to
indirectly restricting the freedom of its members to determine           the Republic of Italy that the remission of import duties owed
their selling prices independently. A fine of EUR 2.15 million           by the applicant in the amount of LIT 170 465 765 was not
was imposed on the applicant. TU seeks annulment of                      justified. Those duties were levied in connection with the
the decision on the following grounds. To begin with, the                import of colour televisions from Turkey from April 1992 to
Commission is wrong to regard TU as being (individually)                 December 1993 and were remitted ex post facto on the ground
liable. TUs membership of FEG is not enough to render it                 that preference form A.TR.1 had been wrongly completed in
individually liable. Moreover, it is contrary to the principle of        Turkey.


title: Case T-119/06: Action brought on  19 April 2006  — Usha Martin v Council and Commission

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/18

         Action brought on 19 April 2006 — Usha Martin v Council and Commission
   (Case T-119/06)
   (2006/C 154/47)
   Language of the case: English
   Parties

      Applicant: Usha Martin Ltd (Calcutta, India) (represented by: K. Adamantopoulos, lawyer and J. Branton, Solicitor)

      Defendants: Council of the European Union and Commission of the European Communities
   Form of order sought

               —

               A declaration, pursuant to Article 230 of the Treaty establishing the European Communities, that Commission Decision of 22 December 2005 amending Commission Decision 1999/572/EC accepting undertakings in connection with the anti-dumping proceedings concerning imports of steel wire rope and cables originating, inter alia, in India, published on 26 January 2006 in the Official Journal of the European Union, OJ L 22, p. 54, 26.01.2006 (‘contested decision’) is annulled insofar as it relates to the applicant and withdraws a minimum price undertaking previously in force.

               —

               A declaration, pursuant to Article 230 of the Treaty establishing the European Communities, that Council Regulation (EC) No 121/2006 of 23 January 2006 amending Regulation (EC) No. 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating, inter alia, in India, published on 26 January 2006 in the Official Journal of the European Union, OJ L 22, p. 1, 26.01.2006 is annulled insofar as it relates to the applicant and gives effect to the contested decision withdrawing a minimum price undertaking previously held by the applicant.

               —

               An order that the costs of and occasioned by these proceedings be borne by the respondent.

         Pleas in law and main arguments
   The applicant is an exporting producer of steel wire ropes in India exporting to the European Union.
   The Commission had by decision of 13 August 1999 (1) accepted certain minimum price undertakings offered by among others the applicant in the framework of anti-dumping proceedings concerning imports of steel wire ropes and cables originating in e.g. India.
   By Decision 2006/38 (2) the Commission withdrew the acceptance of the price undertaking offered by the applicant on the grounds, according to the applicant, that it had failed to report sales outside the scope of the price undertaking and claimed Dubai origin on steel wire ropes and cables from Dubai when in fact the origin should have been Indian due to insufficient further working of Indian raw material in Dubai. By Council Regulation No 121/2006 (3) a definitive anti-dumping duty was imposed giving effect to the Commission's decision.
   Concerning the failure to report sales outside the scope of the minimum price undertaking, the applicant alleges it relates to a human error and claims a violation of the principle of proportionality as it is not a material breach of the price undertaking and should therefore only result in instructions not to commit such a breach in the future and not in a withdrawal of the price undertaking. The applicant further submits that no material harm was done to the Community industry.
   Concerning the claimed Dubai origin, the applicant alleges the institutions have erred in law by making an incorrect origin analysis as the Commission allegedly used the criterion whether or not there was a change in the tariff heading of the product concerned, whereas the applicant finds that the relevant criteria are the following:

               i)

               Last substantial process or operation;

               ii)

               the operation must be economically justified;

               iii)

               the operation must be carried out in an undertaking equipped for the purpose; and

               iv)

               the operation must result in the manufacture of a new product or represent an important stage of manufacture.

         Furthermore, there were less onerous sanctions than withdrawing the price undertaking, such as the reclaiming of anti-dumping duty by the Member States' customs authorities or making it a condition that exports from Dubai of ropes made from Indian strand had stopped.
   The applicant therefore invokes an error of law, lack of reasoning, misuse of powers and a violation of the principle of proportionality.

      (1)  Commission Decision 1999/572/EC of 13 August 1999 accepting undertakings offered in connection with the anti-dumping proceedings concerning imports of steel wire ropes and cables originating in the People's Republic of China, Hungary, India, the Republic of Korea, Mexico, Poland, South Africa and Ukraine (OJ 1999 L 217, p. 63).

      (2)  Commission Decision 2006/38/EC of 22 December 2005 amending Commission Decision 1999/572/EC accepting undertakings offered in connection with the anti-dumping proceedings concerning imports of steel wire ropes and cables originating, inter alia, in India (JO 2006 L 22, p. 54).

      (3)  Council Regulation (EC) No 121/2006 of 23 January 2006 amending Regulation (EC) No 1858/2005 imposing a definitive anti-dumping duty on imports of steel ropes and cables originating, inter alia, in India (JO 2006 L 22, p. 1).


title: Judgment of the Court (Sixth Chamber) of 5 October 1999 in Case C-240/97: Kingdom of Spain v Commission of the European Communities (EAGGF — Clearance of accounts — 1993 — Export refunds for butter, beef and veal — Aid for processing of citrus fruit)

text:
C 6/4                   EN                      Official Journal of the European Communities                                           8.1.2000
                 JUDGMENT OF THE COURT                                     M. Dı́az-Llanos La Roche and C. Gómez de la Cruz) —
                                                                           application for the partial annulment of Commission Decision
                         (Sixth Chamber)                                   97/333/EC of 23 April 1997 on the clearance of the accounts
                                                                           presented by the Member States in respect of the expenditure
                        of 5 October 1999                                  for 1993 of the Guarantee Section of the European Agricultural
                                                                           Guidance and Guarantee Fund (EAGGF) (OJ 1997 L 139, p. 30)
in Case C-308/95: Kingdom of the Netherlands v Com-                        — the Court (Sixth Chamber), composed of: P.J.G. Kapteyn,
          mission of the European Communities (1)                          President of the Chamber, G. Hirsch and J.L. Murray (Rappor-
                                                                           teur), Judges; P. Léger, Advocate General; H. von Holstein,
(European Regional Development Fund — Projects co-                         Deputy Registrar, has given a judgment on 5 October 1999,
          financed by the ERDF — Closure decision)                         in which it:
                           (2000/C 6/06)                                   1. Annuls Commission Decision 97/333/EC of 23 April 1997
                                                                               on the clearance of the accounts presented by the Member States
                    (Language of the case: Dutch)                              in respect of the expenditure for 1993 of the Guarantee Section
                                                                               of the European Agricultural Guidance and Guarantee Fund
                                                                               (EAGGF) to the extent to which it failed to charge definitively to
(Provisional translation; the definitive translation will be published         the EAGGF the sum of ESP 58 804 012 in respect of financial
                   in the European Court Reports)                              compensation advanced by the Kingdom of Spain in respect of
                                                                               processing of citrus fruit;
In Case C-308/95: Kingdom of the Netherlands (Agents:
J.S. van den Oosterkamp and M.A. Fierstra) v Commission of                 2. Dismisses the remainder of the action;
the European Communities (Agents: E. Mennens and P. Oliver)
— application for annulment of the Commission’s letter dated               3. Orders the parties to bear their own costs.
28 July 1995 on the closure of projects co-financed by the
European Regional Development Fund — the Court (Sixth
Chamber), composed of: P.J.G. Kapteyn, President of the                    (1) OJ C 271 of 6.9.1997.
Chamber, G. Hirsch, J.L. Murray (Rapporteur), H. Ragnemalm
and R. Schintgen, Judges; A. La Pergola, Advocate General;
L. Hewlett, Administrator, for the Registrar, has given a
judgment on 5 October 1999, in which it:
1. Dismisses the application as inadmissible;
2. Orders the Kingdom of the Netherlands to pay the costs.
                                                                                JUDGMENT OF THE COURT
(1) OJ No C 299 of 11.11.1995.
                                                                                of 5 October 1999
                                                                           in Case C-251/97: French Republic v Commission of the
                                                                                European Communities (1)
                 JUDGMENT OF THE COURT
                                                                           (Article 92 of the EC Treaty (now, after amendment, Article
                         (Sixth Chamber)                                   87 EC) — Concept of aid — Relief on social security
                                                                           contributions in consideration for the costs arising for
                        of 5 October 1999                                  undertakings from collective agreements concerning the
                                                                                reorganisation and reduction of working time)
in Case C-240/97: Kingdom of Spain v Commission of the
                   European Communities (1)
                                                                                (2000/C 6/08)
(EAGGF — Clearance of accounts — 1993 — Export
refunds for butter, beef and veal — Aid for processing of
                            citrus fruit)                                                       (Language of the case: French)
                           (2000/C 6/07)
                                                                           (Provisional translation; the definitive translation will be published
                   (Language of the case: Spanish)                                             in the European Court Reports)
(Provisional translation; the definitive translation will be published     In Case C-251/97: French Republic (Agents: K. Rispal-Bellanger
                   in the European Court Reports)                          and G. Mignot) v Commission of the European Communities
                                                                           (Agent: G. Rozet) — application for annulment of Commission
In Case C-240/97: Kingdom of Spain (Agent: S. Ortiz Vaamon-                Decision 97/811/EC of 9 April 1997 concerning aid granted
de) v Commission of the European Communities (Agents:                      by France to the textile, clothing, leather and footwear


title: Case C-340/02: Action brought on 24 September 2002 by Commission of the European Communities against French Republic

text:
C 289/12                EN                     Official Journal of the European Communities                                     23.11.2002
      enables the relevant class of persons to distinguish the            at the Court Registry on 23 September 2002, for a preliminary
      services in question from services of another business              ruling in the proceedings between Saatgut-Treuhandverwal-
      source. Instead the Court based its view that the sign in           tungs-GmbH and Brangewitz GmbH on the following ques-
      question fell within the scope of Article 7(1)(b) of the            tions concerning the interpretation of Article 14(3), sixth
      Regulation on the fact that it did not satisfy criteria for         indent, of Council Regulation (EC) No 2100/94 (1) of 27 July
      protection governed by other provisions. It interprets              1994 on Community Plant variety rights (OJ 1994 L 227,
      Article 7(1)(b) as a catch-all provision for cases in which         p. 1) in conjunction with Article 9 of Commission Regulation
      the trade marks applied for, despite having descriptive             (EC) No 1768/95 ( 2) of 24 July 1995:
      character, do not fall within the scope of the grounds
      for rejecting protection under Article 7(1)(c) of the               1.     Are the abovementioned provisions to be interpreted as
      Regulation.                                                                meaning that the holder of a variety protected under
                                                                                Regulation No 2100/94 can request the supplier of
      The splitting by the Court of the trade mark ‘SAT.2’ into                  processing services or the processor to provide the
      its component parts does not reflect the view and
                                                                                information specified in those provisions, regardless of
      approach adopted by consumers. The distinctive charac-                     whether there is any evidence that the supplier of
      ter or lack of distinctive character of the trade mark must                processsing services has supplied a processing service in
      to some degree be apparent ‘at first sight’.                               respect of the protected variety concerned or that the
                                                                                processor has processed the protected variety concerned?
(in the alternative)                                                      2.     If there must be evidence for the factual situation referred
                                                                                to in Question 1:
—     Infringement of the principle of equal treatment: it may
                                                                                Must the supplier of processing services or processor
      be correct that a person cannot rely on a failure to apply
                                                                                provide information pursuant to Article 14(3), sixth
      the law which has benefitted another person. In the
                                                                                indent, of Regulation No 2100/94 in conjunction with
      present case, however, the appellant did not point to
                                                                                Article 9 of Regulation No 1768/95 with regard to all the
      wrongly-decided isolated cases, but to the Office’s clearly
                                                                                farmers to whom he has supplied the processing service
      recognisable general practice of allowing in principle
                                                                                in respect of the protected variety concerned and/or for
      applications for registration of trademarks consisting of a
                                                                                whom he has carried out the processing of the protected
      combination of numbers and descriptive indications/
                                                                                variety concerned, or only with regard to those farmers
      abbreviations. The appellant refers in this connection in
                                                                                in respect of whom the holder has evidence that the
      particular to the trademarks ‘T-SAT’ (00 918 409), ‘One
                                                                                supplier of processing services has supplied processing
      Tel’ (001 096 312, 000 983 973, 001 105 089), ‘MEDIA
                                                                                services in respect of the protected variety concerned
      4’ (001 179 530, ‘CAR ONE’ (000 707 430), ‘D1’ (000
                                                                                and/or the processor has carried out the processing of the
      920 157) and ‘B-MAIL’ (000 896 399).
                                                                                protected variety concerned?
( 1) OJ 2002 C 202, p. 23.
                                                                          (1 ) OJ L 227, p. 1.
( 2) OJ 2001 C 4, p. 5.
                                                                          (2 ) OJ L 173, p. 14.
Reference for a preliminary ruling by the Landgericht                     Action brought on 24 September 2002 by Commission
Düsseldorf by order of that Court of 17 September 2002                       of the European Communities against French Republic
in the proceedings between Saatgut-Treuhandverwal-
             tungs-GmbH and Brangewitz GmbH
                                                                                (Case C-340/02)
                         (Case C-336/02)
                                                                                (2002/C 289/21)
                         (2002/C 289/20)
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 24 Septem-
Reference has been made to the Court of Justice of the                    ber 2002 by the Commission of the European Communities,
European Communities by order of the Landgericht Düsseldorf               represented by M. Nolin, acting as Agent, with an address for
(Regional Court, Düsseldorf) of 17 September 2002, received               service in Luxembourg.
 ---pagebreak--- 23.11.2002                EN                   Official Journal of the European Communities                                      C 289/13
The applicant claims that the Court should:                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                          27 September 2002, received at the Court Registry on
—      declare that, when the municipal community of Le Mans              30 September 2002, for a preliminary ruling in the proceed-
       awarded a contract with the purpose of assisting the               ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
       person responsible for the Chauvinière sewage treatment            3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
       works to carry out a study into it without previously              the following questions:
       publishing a tender notice in the Official Journal of the
       European Communities, the French Republic failed to
       fulfil its obligations under Directive 92/50/EEC ( 1) and in
       particular Article 15(2) thereof;                                  (1) Is a scheme such as that under consideration, in which
                                                                               levies are imposed to finance collective advertising cam-
                                                                               paigns, to be regarded as (part of a measure of) aid within
—      order the French Republic to pay the costs.
                                                                               the meaning of Article 92(1) of the EC Treaty, and must
                                                                               the plans to implement it be notified to the Commission
                                                                               under Article 93(3) of the EC Treaty? Does that apply
                                                                               only to the benefit derived from the scheme, in the form
Pleas in law and main arguments                                                of the organisation and provision of collective advertising
                                                                               campaigns, or does it also apply to the method of
                                                                               financing it, such as a bye-law instituting levies and/or
                                                                               the decisions imposing levies based thereon? Does it
The Commission takes the view that the tender for the study
                                                                               make any difference whether the collective advertising
into the works which concerned services other than those                       campaigns are offered to (undertakings in) the same
involved in the call for proposals launched by the notice                      business sector as that on which the levy decisions in
published in the Official Journal of the European Communities                  question are imposed? If so, what difference does it make?
on 30 November 1996 should have been published and                             Is it relevant in that connection whether the costs incurred
should have been the subject of a new tender in compliance
                                                                               by the public body are offset in full by the earmarked
with the obligations laid down by Directive 92/50/EEC. The                     levies payable by the undertakings benefiting from the
direct award of that contract to the successful tenderer of the                service, so that the benefit derived costs the public
call for proposals was unauthorised. Nor can it be justified on                authorities, on balance, nothing? Is it relevant in that
the basis of a reference in the notice of 30 November 1996                     connection whether the benefit from the collective adver-
according to which ‘the tenderer whose solution is accepted in
                                                                               tising campaigns is distributed more or less evenly across
the context of the competition for proposals may be invited to                 the field of activity concerned and whether the individual
become involved in the implementation of his idea as part of                   establishments within the branch are also deemed, on
a study intended to ... assist the person responsible for the
                                                                               balance, to have derived a more or less equal benefit or
works’.                                                                        profit from those campaigns?
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
     coordination of procedures for the award of public service
     contracts (JO L 209 of 24.7.1992, p. 1).                             (2) Does the obligation to notify under Article 93(3) apply
                                                                               to any aid or only to aid which satisfies the definition in
                                                                               Article 92(1)? In order to avoid its obligation to notify,
                                                                               does a Member State have free discretion to determine
                                                                               whether aid satisfies the definition in Article 92(1)? If so,
                                                                               how much discretion? And to what extent can such
                                                                               free discretion affect the obligation to notify under
                                                                               Article 93(3)? Or is it the case that the obligation to
                                                                               notify ceases to apply only if it is beyond reasonable
                                                                               doubt that no aid is involved?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 27 September
2002 in the proceedings between 1. Pearle B.V., 2. Hans
Prijs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and                  (3) If the national court concludes that aid within the
                   Hoofdbedrijfschap Ambachten                                 meaning of Article 92(1) is involved, must it then
                                                                               consider the ‘de minimis’ rule, as formulated by the
                                                                               Commission in a notice published in OJ 1992 C 213 (and
                           (Case C-345/02)
                                                                               subsequently in OJ 1996 C 68), when assessing whether
                                                                               the measure in question is to be regarded as aid which
                           (2002/C 289/22)                                     ought to have been notified to the Commission under
                                                                               Article 93(3)? If so, must that ‘de minimis’ rule also be
                                                                               applied with retroactive effect to aid which was granted
                                                                               before the publication of the rule, and how must that ‘de
                                                                               minimis’ rule be applied to aid such as annual collective
Reference has been made to the Court of Justice of the                         advertising campaigns which benefit an entire branch of
European Communities by judgment of the Hoge Raad                              industry?


title: Case C-138/03: Action brought on 27 March 2003 by Italian Republic against Commission of the European Communities

text:
7.6.2003                 EN                       Official Journal of the European Union                                          C 135/13
      information, which is intended to protect ‘the interests of               Article 9(1) of the directive (for which no provision is
      shareholders and third parties’, permits only shareholders                made in the Austrian legal system) — save in cases of
      and creditors to apply for the imposition of penalties, thus              urgency — where appeals against its decisions may be
      depriving third parties generally of effective protection?                lodged with the courts of public law only subject to the
                                                                                following limitations: such appeals have no suspensory
4.    Must the directives mentioned, and in particular the                      effect from the outset and the courts are not barred from
      provisions of Article 44(2)(g) of the Treaty Establishing                 taking a decision on appropriateness and are able merely
      the European Community, Article 2(1)(f) and Article 6 of                  to annul the contested decision. Moreover, is one court
      the First Directive and Article 2(2), (3) and (4) of the                  (the Verwaltungsgerichtshof — the Higher Administrative
      Fourth Directive, as amended by Directive 83/349/EEC                      Court) limited, as regards the findings of the facts, to
      and Directive 90/605/EEC, be interpreted as precluding                    an examination of conclusiveness, and the other (the
      the legislation of a Member State under which, in the case                Verfassungsgerichtshof — the Constitutional Court) also
      of breach of the duty to publish true and fair company                    limited to an examination of the infringement of rights
      information, which is intended to protect ‘the interests of               guaranteed by the constitution?
      shareholders and third parties’, lays down rules for the
      prosecution of offences and a system of penalties which             2.    Are the guarantees of judicial protection provided by
      are differentiated, reserving to cases where material                     Articles 8 and 9(1) of the directive referred to in
      damage or loss is caused to shareholders or creditors the                 paragraph 1 to be applied to Turkish nationals who enjoy
      right to submit a complaint and apply for the imposition                  legal status under Article 6 or Article 7 of Decision No 1/
      of sanctions and reserving to such cases sanctions which                  80 of the Association Council — set up by the Agreement
      are serious and effective?                                                establishing an Association between the European Econ-
                                                                                omic Community and Turkey — of 19 September 1980
                                                                                on the development of the Association (‘the Association
( 1) OJ, English Special Edition 1968 (I), p. 41.                               Council decision’)?
( 2) OJ L 222 of 14.08.1978, p. 11.
( 3) OJ L 193 of 18.07.1983, p. 1.
( 4) OJ L 317 of 16.11.1990, p. 60.                                       (1 ) OJ L 56 of 04.04.1964, p. 850.
                                                                          Action brought on 27 March 2003 by Italian Republic
Reference for a preliminary ruling by the Verwaltungsge-                       against Commission of the European Communities
richtshof by order of that Court of 18 March 2003 in the
joint appeals lodged by (1) Georg Dörr and by (2) Ibrahim
                                  Ünal                                                             (Case C-138/03)
                                                                                (2003/C 135/19)
                           (Case C-136/03)
                           (2003/C 135/18)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of Justice of the European
                                                                          Communities on 27 March 2003 by the Italian Republic,
                                                                          represented by Umberto Leanza, acting as Agent, assisted by
Reference has been made to the Court of Justice of the                    Ivo Maria Braguglia and Antonio Cingolo, Avvocati dello
European Communities by order of the Verwaltungsgerichts-                 Stato, with an address for service in Luxembourg.
hof (Higher Administrative Court [Austria]) of 18 March 2003,
received at the Court Registry on 26 March 2003, for a
preliminary ruling in the joint appeals lodged by (1) Georg               The applicant claims that the Court should:
Dörr and by (2) Ibrahim Ünal on the following questions:
                                                                          —     annul the memorandum of 20 January 2003 No 100629
1.    Are Articles 8 and 9 of Council Directive 64/221/EEC of                   (doc. 19), received on 21 January 2003, by which the
      25 February 1964 (1) on the co-ordination of special                      Commission’s Directorate General Regional Policy —
      measures concerning the movement and residence of                         Regional intervention in France, Greece, Italy, communi-
      foreign nationals which are justified on grounds of public                cated its decision to deduct part of the amount requested
      policy, public security or public health (‘the directive’)                by way of assistance in the context of the POP ‘Ricerca,
      to be interpreted as meaning that the administrative                      Sviluppo Tecnologico e Alta Formazione’ (Research,
      authorities may not — notwithstanding the existence of                    Technological development and Higher Education) 2000-
      an internal appeal facility — take a decision ordering                    2006; the memorandum of 3 March 2003 No 102627
      expulsion from the territory without obtaining an opinion                 (doc. 21) quantifying the amount to be deducted; and all
      from a competent authority within the meaning of                          other measures connected therewith and entailed thereby;
 ---pagebreak--- C 135/14               EN                       Official Journal of the European Union                                          7.6.2003
—     order the Commission of the European Communities to                     sale of optician’s goods, the Hellenic Republic is
      pay the costs.                                                          restricting the conditions of establishment of natural
                                                                              persons working as opticians in breach of Article 43 EC.
                                                                        —     Declare that, by enacting and maintaining in force Law
Pleas in law and main arguments                                               No 91/119 and Law No 2646/98 under which the
                                                                              establishment by a legal person of a shop for the sale of
                                                                              optician’s goods is subject to the following conditions:
The applicant claims that the contested memoranda do not
appear to have been issued as a result of one of the procedures
for making decisions exhaustively provided for by the Com-                    —     authorisation of the establishment and operation of
mission’s internal rules, C(2000) 3614 of 29 November 2000,                         the shop for the sale of optician’s goods must
which renders null and void the contested measures, not least                       have been granted to a recognised optician/natural
in view of their content which is of external effect.                               person, the person holding the authorisation to
                                                                                operate the shop must hold at least 50 % of the
                                                                                company’s share capital, and must participate at
It further claims that the contested measures were adopted by                       least to that extent in the profits and losses of the
the Commission in manifest breach of Article 32 of Regulation                       company, and the company must be in the form of
EC No 1260/99 (1) and of and of Rule 1.1 and 1.2 in the annex                       a collective or limited partnership,
to Commission Regulation (EC) No 1685/2000 (2).
                                                                              —     the optician in question may participate at most in
Finally, it claims that the decisions adopted by way of the                         one other company owning a shop for the sale of
contested measures are invalid inasmuch as the statement of                         optical articles, subject to the conditions that the
reasons is defective and contradictory and because they                             authorisation for the establishment and operation
infringe the legitimate expectations of the applicant.                              of that shop is in the name of another authorised
                                                                                optician,
( 1) OJ 1999 L 161, p. 1.
( 2) OJ 2000 L 193, p. 39.                                                    the Hellenic Republic has restricted the conditions of
                                                                              establishment of legal persons operating as opticians in
                                                                              Greece in a manner inconsistent with Article 43 EC and
                                                                              has infringed Article 48 in conjunction with Article 43 EC
                                                                              by imposing on legal persons conditions not applicable to
                                                                              natural persons,
                                                                        —     order the Hellenic Republic to pay the costs.
Action brought on 27 March 2003 by the Commission of
the European Communities against the Hellenic Republic
                          (Case C-140/03)
                                                                        Pleas in Law and Main Arguments
                          (2003/C 135/20)
                                                                        1.    Restrictions on freedom of establishment for natural
                                                                              persons.
An action against the European Communities was brought
before the Court of Justice on 27 March 2003 by the                     2.    Restrictions on freedom of establishment for legal per-
Commission of the European Communities, represented by                        sons.
Maria Patakia, of the legal service.
                                                                        3.    The abovementioned restrictions are not justified by the
The Commission claims that the Court should:                                  grounds put forward.
—     Declare that by enacting and maintaining in force Law
      No 971/79, which does not permit a qualified optician as
      a natural person to operate more than one shop for the


title: Judgment of the Court of First Instance of 5 August 2003 in Joined Cases T-116/01 and T-118/01: P & O European Ferries (Vizcaya), SA and Diputación Foral de Vizcaya v Commission of the European Communities (State aid — Actions for annulment — Decision terminating a review procedure initiated under Article 88(2) EC — Concept of State aid — Purchase of services by the State at the market price — Aid having a social character granted without discrimination related to the origin of the products concerned — Failure to order a Member State to produce the necessary information — Obligation to refund aid — Legitimate expectations of recipients — Statement of reasons)

text:
C 251/10               EN                        Official Journal of the European Union                                         18.10.2003
                                                       COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     ORDER OF THE COURT OF FIRST INSTANCE
                        of 5 August 2003
                                                                                of 9 July 2003
in Joined Cases T-116/01 and T-118/01: P & O European
Ferries (Vizcaya), SA and Diputación Foral de Vizcaya v                   in Case T-216/01: Reisebank AG v Commission of the
       Commission of the European Communities (1)                                           European Communities (1)
(State aid — Actions for annulment — Decision terminating
a review procedure initiated under Article 88(2) EC —                     (Action for annulment — Application for access to docu-
Concept of State aid — Purchase of services by the State                  ments — Decision of the Hearing Officer — Admissibility)
at the market price — Aid having a social character granted
without discrimination related to the origin of the products
concerned — Failure to order a Member State to produce the                                         (2003/C 251/20)
necessary information — Obligation to refund aid —
Legitimate expectations of recipients — Statement of
                              reasons)                                                      (Language of the case: German)
                         (2003/C 251/19)
            (Language of the case: Spanish and English)                   In Case T-216/01: Reisebank AG, established in Frankfurt am
                                                                          Main (Germany), represented by M. Klusmann and F. Wiemer,
                                                                          lawyers, against the Commission of the European
                                                                          Communities (Agent: S. Rating) — application for annulment
In Joined Cases T-116/01 and T-118/01, P&O European                       of the Hearing Officer's decision of 14 August 2001 refusing
Ferries (Vizcaya) SA, formerly Ferries Golfo de Vizcaya SA,               to allow the applicant access to certain documents concerning
established in Bilbao (Spain), represented by Sir Jeremy Lever            the closure of the proceeding in Case COMP/E-1/37.919 —
QC, D. Beard, barrister, J. Ellison, solicitor, and J. Folguera           bank fees for currency exchange in the Euro zone, initiated
Crespo, lawyer, v Commission of the European Communities                  against other banks — the Court of First Instance (Fifth
(Agent: J. Flett): Application for annulment of Commission                Chamber), composed of R. García-Valdecasas, President,
Decision 2001/247/EC of 29 November 2000 on the aid                       P. Lindh and J. D. Cooke, Judges; H. Jung, Registrar, has made
scheme implemented by Spain in favour of the shipping com-                an order on 9 July 2003, in which it:
pany Ferries Golfo de Vizcaya (OJ 2001 L 89, p. 28), the Court
of First Instance (First Chamber, Extended Composition), com-
posed of: B. Vesterdorf, President, K. Lenaerts, J. Azizi,
M. Jaeger and H. Legal, Judges; J. Palacio González, Principal
Administrator, for the Registrar, has given a judgment on
5 August 2003, in which it:
                                                                          1.   Dismisses the action as inadmissible.
1.   Dismisses the actions;
                                                                          2.   Orders the applicant to bear its own and the defendant's costs,
2.   Orders the applicant, in each case, to bear its own costs and             including the costs of the interlocutory proceedings in Case
     those incurred by the Commission;                                         T-216/01 R.
3.   Orders the interveners to bear their own costs.
                                                                          (1) OJ C 331 of 24.11.01.
(1) OJ C 212 of 28.07.2001 and C 227 of 11.08.2001.


title: Action brought on 8 September 1997 by C against the Commission of the European Communities (Case T-250/97)

text:
18 . 10 . 97             EN                Official Journal of the European Communities                                 C 318/35
Pleas in law and main arguments adduced in support:                   payment, that is he suffers from an illness which prevents
                                                                      him from performing his normal duties and his invalidity
                                                                      is the result of a mental illness arising from an
This action has been brought against the implied rejection            occupational disease .
of the complaint submitted against the implied rejection of
the request for an invalidity pension .
In support of this application the applicant claims to fulfil
the conditions laid down by the applicable legislation
( Article 78 of the Staff Regulations and Articles 13 and 16                   Removal from the register of T-231/95 ( ')
of Annex VIII thereto ) for entitlement to the said pension:                                       ( 97/C 318/68 )
he suffers total permanent invalidity brought about while
completing periods of pensionable service which prevents
him from pursuing any employment. The medical check                               (Language of the case: Portuguese)
up prior to entering the service did not reveal that the
applicant was suffering from any illness or complaint.                By order of 4 July 1997 the President of Second Chamber
                                                                      of the Court of First Instance of the European
                                                                      Communities has ordered the removal from the register of
The applicant would observe that the granting of the                  Case T-231 /95 : SIC, Sociedade Independente de
pension is subject to the prior declaration that the                  Comunica^ao SA v. Commission of the European
acceptance of the resignation tendered by the applicant is            Communities .
null and void or non-existent. In this regard the
application refers to the arguments put forward in Case
T-27/97 C v. Commission ( M.                                          (') OJ C 77, 16 . 3 . 1996 .
(') OJ C 181 , 15 . 6 . 1997, p . 15 .
                                                                              Removal from the register of T- 163/97 R (')
                                                                                ( 97/C 318/69
Action brought on 8 September 1997 by C against the
          Commission of the European Communities                                       (Language of the case: Dutch)
                          ( Case T-250/97)
                                                                      By order of 8 July 1997 the President of the Court of First
                            ( 97/C 318/67)                            Instance of the European Communities has ordered the
                                                                      removal from the register of Case T-163/97 R:
                                                                      Netherlands Antilles v. Commission of the European
                (Language of the case: Spanish)                       Communities .
An action against the Commission of the European                      (') OJ C 212, 12 . 7. 1997.
Communities was brought before the Court of First
Instance of the European Communities on 8 September
1997 by C, represented by Valeriano Hernandez Martin,
of the Madrid Bar, with an address for service at 2, Calle
Conde de la Cimera, Madrid .
                                                                               Removal from the register of T-155/96 (')
The applicant claims that the Court should award him an                                            ( 97/C 318/70 )
invalidity payment following the completion of the
appropriate procedure .                                                              (Language of the case: German)
Pleas in law and main arguments adduced in support:                   By order of 9 July 1997 the President of the Third
                                                                      Chamber, Extended Composition, of the Court of First
                                                                      Instance of the European Communities has ordered the
This action has been brought against the implied rejection            removal from the register of Case T-155/96 : City of Mainz
of the complaint submitted against the implied rejection of           ( Federal Republic of Germany ) v. Commission of the
the request for an invalidity payment as provided for in              European Communities .
Article 73 of the Staff Regulations .
                                                                      (') OJ C 354, 23 . 11 . 1996 .
The applicant claims to fulfil all the requirements laid
down by law for entitlement to the abovementioned