title: Case T-14/01: Action brought on 22 January 2001 by Fiorenzo Rizzello against Commission of the European Communities

text:
24.3.2001              EN                      Official Journal of the European Communities                                    C 95/19
Action brought on 22 January 2001 by Cristina Ascatigno                   The applicant claims that the Court should:
Battistella against Commission of the European Com-
                             munities                                     —     Annul the decision of the Commission of 28 September
                                                                                2000 rejecting the complaint lodged by the applicant on
                                                                                28 March 2000 under No 168/2000;
                          (Case T-12/01)
                                                                          —     Order the Commission to pay the costs.
                          (2001/C 95/36)
                                                                          Pleas in law and main arguments
                   (Language of the case: Italian)
                                                                          The pleas in law and main arguments are the same as though
An action against the Commission of the European Communi-                 in Case T-11/01 Maschetti v Commission (1).
ties was brought before the Court of First Instance of the
European Communities on 22 January 2001 by Cristina
Ascatigno Battistella represented by Bruno Nascimbene and                 (1) Not yet published in the OJ.
Massimo Condinanzi, Avvocati, with an address for service in
Luxembourg.
The applicant claims that the Court should:
—     Annul the decision of the Commission of 28 September
      2000 rejecting the complaint lodged by the applicant on
      28 March 2000 under No 170/2000;                                    Action brought on 22 January 2001 by Fiorenzo Rizzello
                                                                              against Commission of the European Communities
—     Order the Commission to pay the costs.
                                                                                (Case T-14/01)
Pleas in law and main arguments                                                                     (2001/C 95/38)
The pleas in law and main arguments are the same as though
                                                                                (Language of the case: Italian)
in Case T-11/01 Maschetti v Commission (1).
                                                                          An action against the Commission of the European Communi-
(1) Not yet published in the OJ.                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 22 January 2001 by Fiorenzo
                                                                          Rizzello represented by Bruno Nascimbene and Massimo
                                                                          Condinanzi, Avvocati, with an address for service in Luxem-
                                                                          bourg.
                                                                          The applicant claims that the Court should:
                                                                          —     Annul the decision of the Commission of 28 September
Action brought on 22 January 2001 by Daniele Riva                               2000 rejecting the complaint lodged by the applicant on
    against Commission of the European Communities                              28 March 2000 under No 167/2000;
                          (Case T-13/01)                                  —     Order the Commission to pay the costs.
                          (2001/C 95/37)                                  Pleas in law and main arguments
                                                                          The pleas in law and main arguments are the same as though
                   (Language of the case: Italian)
                                                                          in Case T-11/01 Maschetti v Commission (1).
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                (1) Not yet published in the OJ.
European Communities on 22 January 2001 by Daniele Riva
represented by Bruno Nascimbene and Massimo Condinanzi,
Avvocati, with an address for service in Luxembourg.


C 118/26              EN                   Official Journal of the European Communities                                     21.4.2001
        Removal from the register of Case C-8/00 (1)                         Removal from the register of Case C-102/99 (1)
                         (2001/C 118/58)                                                     (2001/C 118/61)
By order of 19 October 2000 the President of the Court of             By order of 27 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           Justice of the European Communities has ordered the removal
from the register of Case C-8/00: Commission of the European          from the register of Case C-102/99: (reference for a preliminary
Communities v Ireland.                                                ruling from the Commissione Tributaria Regionale di Venezia):
                                                                      Veneta Assicurazioni SpA. v Ufficio del Registro di Padova.
(1) OJ C 63 of 4.3.2000.
                                                                      (1) OJ C 136 of 15.5.1999.
       Removal from the register of Case C-331/99 (1)
                                                                             Removal from the register of Case C-421/99 (1)
                         (2001/C 118/59)
                                                                                (2001/C 118/62)
By order of 25 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 27 October 2000 the President of the Court of
from the register of Case C-331/99: Commission of the                 Justice of the European Communities has ordered the removal
European Communities v France.                                        from the register of Case C-421/99: Commission of the
                                                                      European Communities v Italy.
(1) OJ C 314 of 30.10.1999.
                                                                      (1) OJ C 20 of 22.1.2000.
       Removal from the register of Case C-95/00 (1)
                                                                             Removal from the register of Case C-469/99 (1)
                         (2001/C 118/60)
                                                                                (2001/C 118/63)
By order of 26 October 2000 the President of the Court of
Justice of the European Communities has ordered the removal           By order of 27 October 2000 the President of the Court of
from the register of Case C-95/00: [reference for a preliminary       Justice of the European Communities has ordered the removal
ruling from the Landesgericht Korneuburg (Austria)]: O’Neill          from the register of Case C-469/99: Commission of the
Incorporated v JOMO s.r.o.                                            European Communities v Italian Republic.
(1) OJ C 149 of 27.5.2000.                                            (1) OJ C 47 of 19.2.2000.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 21 October 1998 in Case T-100/96: Miguel Vicente-Nuñez v. Commission of the European Communities (Officials - Classification - Additional seniority - Professional experience and university education prior to recruitment)

text:
19.12.98             EN                  Official Journal of the European Communities                                    C 397/29
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           the LieÁge Bar, with an address for service in Luxembourg
                                                                    at the Chambers of Evelyne Korn, 21 Rue de Nassau, v
                    of 12 November 1998
                                                                    Commission of the European Communities (Agents: Julian
in Case T-91/96 (125): Council of the European Union v.             Currall and Bertrand Wägenbaur) Ð application,
                      Nicole Hankart (1)                            primarily, for annulment of the Commission's decision of
                                                                    24 May 1995 reviewing the applicant's classification in
(Officials Ð Action for revision Ð Decisive new fact Ð              step and classifying him, as at 1 June 1991, in grade A 7,
                    None Ð Inadmissible)                            step 2 and not grade A 7, step 3 Ð the Court of First
                                                                    Instance (Second Chamber), composed of: C. W. Bellamy,
                         (98/C 397/55)
                                                                    President, A. Potocki and J. Pirrung, Judges; J. Palacio
                                                                    GonzaÂlez, Administrator, for the Registrar, has given a
                                                                    judgment on 21 October 1998, in which it:
               (Language of the case: French)
In Case T-91/96 (125): Council of the European Union                1. Annuls the Commission's decision of 24 May 1995 in
(Agent: TheÂreÁse Blanchet) v. Nicole Hankart, an official of            so far as it classifies the applicant in grade A 7, step 2
the Commission of the European Communities, residing at                  as at 1 June 1991 and in grade A 7, step 3 as at
Rhode-Saint-GeneÁse (Belgium), represented initially by                  28 September 1993;
Jean-NoeÈl Louis, Thierry Demaseure, VeÂronique Leclercq
and Ariane Tornel, of the Brussels Bar, and subsequently
by Messrs Louis and Demaseure alone, with an address                2. Dismisses the remainder of the application;
for service in Luxembourg at the Offices of Fiduciaire
Myson SARL, 30 Rue de Cessange Ð application for
revision of the judgment of the Court of First Instance of
17 February 1998 in Case T-91/96 Hankart v. Council                 3. Orders the Commission to pay all of the costs.
[1998] ECR-SC II-149 Ð the Court of First Instance
(Fourth Chamber), composed of: R. M. Moura Ramos,
President, and V. Tiili and P. Mengozzi, Judges; H. Jung,           (1) OJ C 247, 24.8.1996.
Registrar, has given a judgment on 12 November 1998, in
which it:
1. Dismisses the application for revision as inadmissible;
                                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
2. Orders the Council to pay the costs.
                                                                                of 17 November 1998
(1) OJ C 233, 10.8.1996.                                            in Case T-217/96: Lut Fabert-Goossens v. Commission of
                                                                                the European Communities (1)
                                                                    (Temporary staff Ð Selection procedure Ð Professional
                                                                           experience required Ð Classification in grade)
                                                                                (98/C 397/57)
  JUDGMENT OF THE COURT OF FIRST INSTANCE
                     of 21 October 1998                                             (Language of the case: French)
in Case T-100/96: Miguel Vicente-NunÄez v. Commission
              of the European Communities (1)
                                                                    In Case T-217/97: Lut Fabert-Goossens, a member of the
(Officials Ð Classification Ð Additional seniority Ð                temporary staff of the Commission of the European
Professional experience and university education prior to           Communities, represented by Marc-Albert Lucas, of the
                          recruitment)                              LieÁge Bar, with an address for service in Luxembourg at
                                                                    the Chambers of Evelyne Korn, 21 de Nassau, v.
                         (98/C 397/56)
                                                                    Commission of the European Communities (Agent: Julian
                                                                    Currall, assisted by Denis Waelbroeck) Ð application for
                                                                    annulment of the Commission's decision to recruit the
               (Language of the case: French)                       applicant as a member of the temporary staff in the
                                                                    context of selection procedure 50T/XVI/93 instead of
                                                                    selection procedure 71T/TFRH/93, and to classify her in
In Case T-100/98: Miguel Vicente-NunÄez, an official of             grade A 7 rather than grade A 5 Ð the Court of First
the Commission of the European Communities, residing at             Instance (First Chamber), composed of: B. Vesterdorf,
Krainem (Belgium), represented by Marc-Albert Lucas, of             President, R. M. Moura Ramos and P. Mengozzi, Judges;


20.2.1999              EN                   Official Journal of the European Communities                                 C 48/31
The applicant claims that the Court should:                                   Removal from the register of Case T-357/93 (1)
                                                                                (1999/C 48/65)
Ð annul the Commission Decision of 14 October 1998
     relating to a proceeding under Article 85 of the EC
     Treaty (in Case IV/F-3/33.310) in so far as such                                 (Language of the case: English)
     Decision relates to Napier Brown;
                                                                       By order of 7 December 1998 the President of the Fourth
Ð cancel, or reduce the amount of, the fine imposed on                 Chamber of the Court of First Instance of the European
     Napier Brown under the Decision;                                  Communities has ordered the removal from the register of
                                                                       Case T-357/93: W. J. Wyness and Sons v. Council of the
                                                                       European Union and Commission of the European
Ð order that the Commission pay the costs of the                       Communities.
     proceedings;
                                                                       (1) OJ C 189, 13.7.1993.
Ð order that the Commission reimburse the applicant for
     any expenses incurred in providing security for the
     payment of the fine.
Pleas in law and main arguments adduced in support
                                                                              Removal from the register of Case T-525/93 (1)
                                                                                (1999/C 48/66)
The applicant seeks the annulment of the Commission's
decision of 14 October 1998 relating to a proceeding
pursuant to Article 85 of the EC Treaty (1).                                          (Language of the case: English)
The application contests the Commission's finding that the
                                                                       By order of 7 December 1998 the President of the Fourth
applicant has infringed Article 85(1) by participating in
                                                                       Chamber, Extended Composition, of the Court of First
an agreement and/or concerted practice the object of
                                                                       Instance of the European Communities has ordered the
which was to restrict competition by the coordination of
                                                                       removal from the register of Case T-525/93: Patrick
the parties' pricing policy on the market for industrial
                                                                       Griffin v. Council of the European Union and Commission
sugar in Great Britain', on the basis that the Commission
                                                                       of the European Communities.
has failed to adduce any, or any sufficient, evidence of an
anti-competitive object' which can be imputed to the
applicant, and has failed to show any collusive behaviour              (1) OJ C 328, 4.12.1993.
in the market.
The Commission has also misapplied the law to the facts
and relied upon inconsistent reasoning in coming to its
decision.
                                                                              Removal from the register of Case T-554/93 (1)
The applicant also submits that the Commission has                                            (1999/C 48/67)
misused its powers under Article 15 of Regulation No 17,
has misapplied its own Guidelines (2) on the method of
setting fines and is in breach of general principles of                               (Language of the case: English)
Community law, especially of the general principle of
proportionality, in fixing the level of fine imposed on the
applicant. The fine of ECU 1 800 000 is wholly unjustified             By order of 7 December 1998 the President of the Fourth
and excessive in all the circumstances. For this reason the            Chamber, Extended Composition, of the Court of First
applicant submits, as an additional ground, that the fine              Instance of the European Communities has ordered the
should be cancelled or, at least, reduced.                             removal from the register of Case T-554/93: Alfred
                                                                       Thomas Edward Saint and Christopher Murray v. Council
(1) See also Cases T-202/98 (Tate & Lyle v. Commission) and            of the European Union and Commission of the European
    T-204/98 (British Sugar v. Commission).                            Communities.
(2) Guidelines on the method of setting fines imposed pursuant to
    Article 15(2) of Regulation No 17 and Article 65(5) of the
    ECSC Treaty (OJ C 9, 14.1.1998, p. 3).                             (1) OJ C 338, 15.12.1993.


title: Case T-425/07: Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/46

         Action brought on 16 November 2007 — Agencja Wydawnicza Technopol v OHIM (100)
   (Case T-425/07)
   (2008/C 22/87)
   Language of the case: Polish
   Parties

      Applicant: Agencja Wydawnicza Technopol sp. z o.o. (Częstochowa, Poland) (represented by D. Rzążewska, legal adviser)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 September 2007 in Case R 1274/2006-4 in its entirety;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘100’ for goods and services in Classes 16, 28 and 41 (Application No 3 875 408).

      Decision of the Examiner: Refusal of registration.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Incorrect application of Articles 7(1)(b) and (c) of Regulation No 40/94 on the Community trade mark (1) since, in the applicant's submission, the sign ‘100’ is neither descriptive nor devoid of distinctive character in relation to the goods and services indicated.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 (OJ 1994 L 11, p. 1).


title: Case C-572/07: Reference for a preliminary ruling from the Krajský Soud v Ústí nad Labem (Czech Republic) lodged on 24 December 2007 — RLRE Tellmer Property s.r.o. v Finanční ředitelství v Ústí nad Labem

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/14

         Reference for a preliminary ruling from the Krajský Soud v Ústí nad Labem (Czech Republic) lodged on 24 December 2007 — RLRE Tellmer Property s.r.o. v Finanční ředitelství v Ústí nad Labem
   (Case C-572/07)
   (2008/C 79/25)
   Language of the case: Czech
   Referring court
   Krajský Soud v Ústí nad Labem
   Parties to the main proceedings

      Applicant: RLRE Tellmer Property s.r.o.

      Defendant: Finanční ředitelství v Ústí nad Labem
   Questions referred

               1.

               Whether the provisions of Article 6 (Supply of services) and Article 13 (Exemptions within the territory of the country) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (1) can be interpreted as meaning that the letting of an apartment (and possibly of non-residential premises) on the one hand and the related cleaning of the common parts on the other hand can be regarded as independent, mutually-divisible taxable transactions.

               2.

               If, as the referring court suspects, the answer to the first question is in the negative, it further asks the Court of Justice whether the provisions of Article 13 of that directive, and in particular the introduction and part B(b) thereof: (1) require; (2) preclude; or (3) leave to the determination of the Member State the application of VAT to payment for cleaning of the common parts of a rented apartment block.

      (1)  OJ 1977 L 145, p. 1.


8.3.2003               EN                   Official Journal of the European Union                                          C 55/21
        Removal from the register of Case C-347/01 ( 1)                     Removal from the register of Case C-390/01 ( 1)
                         (2003/C 55/52)                                                      (2003/C 55/55)
By order of 28 November 2002 the President of the Court of          By order of 12 December 2002 the President of the Court of
Justice of the European Communities ordered the removal             Justice of the European Communities ordered the removal
from the register of Case C-347/01: Commission of the               from the register of Case C-390/01: Commission of the
European Communities v Federal Republic of Germany.                 European Communities v Portuguese Republic.
( 1) OJ C 331 of 24.11.2001.                                        (1 ) OJ C 348 of 8.12.2001.
        Removal from the register of Case C-377/01 ( 1)                     Removal from the register of Case C-21/02 (1)
                         (2003/C 55/53)                                                      (2003/C 55/56)
                                                                    By order of 13 December 2002 the President of the Court of
By order of 11 December 2002 the President of the Court of
                                                                    Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal
                                                                    from the register of Case C-21/02: Commission of the
from the register of Case C-377/01: Commission of the
                                                                    European Communities v Italian Republic.
European Communities v Kingdom of Belgium.
                                                                    (1 ) OJ C 68 of 16.03.2002.
( 1) OJ C 317 of 10.11.2001.
                                                                            Removal from the register of Case C-88/02 (1)
        Removal from the register of Case C-389/01 ( 1)
                                                                                (2003/C 55/57)
                         (2003/C 55/54)
                                                                    By order of 15 November 2002 the President of the Court of
By order of 12 December 2002 the President of the Court of          Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal             from the register of Case C-88/02 (Reference for a preliminary
from the register of Case C-389/01: Commission of the               ruling by the Tribunale di Brescia): Dolomite italiana SpA (SDI)
European Communities v Portuguese Republic.                         v Ministero delle Finanze.
( 1) OJ C 348 of 8.12.2001.                                         (1 ) OJ C 131 of 01.06.2002.


title: Case C-216/01: Reference for a preliminary ruling from the Handelsgericht Wien by order of that court of 26 February 2001 in the case of Budejovicky Budvar, n.p. v Rudolf Ammersin GmbH

text:
1.9.2001               EN                    Official Journal of the European Communities                                       C 245/3
The appellant claims that the Court should:                             1.   Is the application of a provision of a bilateral agreement
                                                                             concluded between a Member State and a non-member
1.    set aside the contested judgment in so far as the Court                country, under which a simpe/qualified geographical
      of First Instance dismissed the plea in law, that the                  indication which in the country of origin is the name
      Commission wrongly failed to take into account the                     neither of a region nor a place nor a country is accorded
      quantity judicially determined by the Finanzgericht Ham-               the absolute protection, regardless of any misleading, of
      burg in calculating the reference quantity for the years               a qualified geographical indication within the meaning of
      1997 to 1999 (paragraph 88); and                                       Regulation No 2081/92 (1), compatible with Article 28 EC
                                                                             and/or Regulation No 2081/92, if on application of that
2.    order the Commission to pay the costs                                  provision the import of a product which is lawfully
                                                                             put on the market in another Member State may be
                                                                             prevented?
Pleas in law and main arguments                                         2.   Does this apply also where the geographical indication
                                                                             which in the country of origin is the name neither of a
The Court of First Instance fails to take proper account of the              region nor a place nor a country is not understood in the
scope of Article 5(2) and (3) of Regulation No 2362/98 (1). In               country of origin as a geographical designation for a
accordance with that provision, any customs duty paid in                     specific product, and also not as a simple or indirect
respect of the quantity imported constitutes sufficient evidence             geographical indication?
of the reference quantity to which the operator is entitled. The
relevant duty is that which was due from the importer on the            3.   Do the answers to Questions 1 and 2 apply also where
day of importation. The duty applicable to the appellant on                  the bilateral agreement is an agreement which the
the day of importation was the quota duty, which the Court of                Member State concluded before its accession to the
First Instance fails to take into account. The Finanzgericht                 European Union and continued after its accession to the
Hamburg had made an interim order to the effect that the                     European Union with a successor State to the original
customs must accept the importation of the ‘quantity judicially              other State party to the agreement by means of a
determined’ without a certificate, provided the quota duty was               declaration of the Federal Government?
paid. The competent Hauptzollamt had decided that the duty
due from the appellant was the quota duty. The appellant                4.   Does the second paragraph of Article 307 EC oblige the
actually paid it. In relation to the question of actual payment              Member State to interpret such a bilateral agreement,
of the customs duty by the appellant in its capacity as importer,            concluded between that Member State and a non-member
the fact that the appeal court annulled the interim order of the             country before the Member State’s accession to the
Finanzgericht Hamburg, and that the Hauptzollamt sub-                        EU, in conformity with Community law as stated in
sequently amended the duty notice and determined the normal                  Article 28 EC and/or Regulation No 2081/92, so that
duty, is irrelevant. In relation to the quantity judicially                  the protection laid down therein for a simple/indirect
determined, it is obvious from the wording of Article 5(3)(b)                geographical indication which in the country of origin is
that the duty determined by the customs authorities on the                   the name neither of a region nor a place nor a country
day of importation and paid for the quantity imported                        comprises merely protection against misleading and
constitutes sufficient evidence of the reference quantity to                 not the absolute protection of a qualified geographical
which the appellant was entitled.                                            indication within the meaning of Regulation
                                                                             No 2081/92?
(1) OJ 1998 L 293, p. 32.
                                                                        (1) OJ L 208 of 24.7.1992, p. 1.
Reference for a preliminary ruling from the Handels-                    Reference for a preliminary ruling by the Bundesfinanz-
gericht Wien by order of that court of 26 February                      hof by order of 24 April 2001 in the case of British
2001 in the case of Budejovicky Budvar, n.p. v Rudolf                   American Tobacco Manufacturing B.V. v Hauptzollamt
                       Ammersin GmbH                                                                 Krefeld
                         (Case C-216/01)                                                        (Case C-222/01)
                         (2001/C 245/05)                                                        (2001/C 245/06)
Reference has been made to the Court of Justice of the                  Reference has been made to the Court of Justice of the
European Communities by an order of the Handelsgericht                  European Communities by order of the Bundesfinanzhof
Wien (Commercial Court, Vienna) of 26 February 2001, which              (Federal Finance Court) of 24 April 2001, received at the Court
was received at the Court Registry on 25 May 2001, for a                Registry on 5 June 2001, for a preliminary ruling in the
preliminary ruling in the case of Budejovicky Budvar, n.p. v            case of British American Tobacco Manufacturing B.V. v
Rudolf Ammersin GmbH on the following questions:                        Hauptzollamt Krefeld on the following questions:


title: Action brought on 26 March 1996 by Oleifici Italiani SpA against the Commission of the European Communities (Case T-44/96)

text:
 No C 180/30          EN                  Official Journal of the European Communities                                     22 . 6 . 96
 The applicant claims that the Court should :                        Action brought on 26 March 1996 by Oleifici Italiani SpA
                                                                        against the Commission of the European Communities
— annul the decision of the Commission of 20 December
                                                                                ( Case T-44/96 )
     1995 ( Case REM 5/95 ),
                                                                                ( 96/C 180/79 )
— order the defendant to pay the costs .
                                                                                (Language of the case: Italian)
 Pleas in law and main arguments
The applicant, an undertaking engaged for many years in the          An action against the Commission of the European
 importation of high quality beef ('Hilton ' beef) from              Communities was brought before the Court of First
 Argentina , contests the Commission's decision of                   Instance of the European Communities on 26 March 1996
 20 December 1 995 ( Case REM 5/95 ), notified by the                by Oleifici Italiani SpA, whose registered office is at Ostuni
 Hauptzollamt ( Principal Customs Office ), Diisseldorf, by          ( BR ) ( Italy ), represented by Antonio Tizzano and
which the Commission refused to refund import levies on              Gianmichele Roberti, both of the Naples Bar, with an
 Hilton    beef   from    Argentina     amounting     to   DM        address for service at 36 Place du Grand Sablon,
 11 422 736,45 .                                                     Brussels .
The applicant maintains in particular that the Commission's
decision is founded on an incorrect legal basis . The correct        The applicant claims that the Court should :
legal basis on which the decision should have been founded
was not Article 13 of Regulation ( EEC ) No 1430/79 but
Article 239 of Regulation ( EEC ) No 2913/92 ( the Customs           — annul partially the Commission's decision contained in
 Code ).                                                                  the letter from Mr M. Jacquiot, the Director of
                                                                          Directorate General Agriculture ( DG VI ) — Directorate
The decision breaches essential procedural requirements,                  G, European Agricultural Guidance and Guarantee
since in the present case the applicant was not granted any               Fund ( EAGGF ) — of 16 January 1996 ( Case No
direct right to be heard or to vindicate its position in the              VI/003107 ), in so far as it refuses to compensate Oleifici
remission procedure ( analogous to inter partes proceedings )             Italiani for part of the damage caused by the
 before the Commission .                                                  Commission by the delay in the take-over of the lots of
                                                                          olive oil awarded on the basis of Regulation ( EC ) No
In its interpretation and application of the term                         2494/94 of 14 October 1994 ( ! ),
'circumstances ' within the meaning of Article 239 of the
Customs Code, the Commission committed a number of                   — order the harm suffered by the applicant as a consequence
serious and manifest errors of assessment, in so far as it                of the alleged unlawful conduct to be made good by the
appraised the arguments advanced in the application at all                Commission ,
and provided a statement of the grounds for its decision
refusing the same . In particular, the Commission failed to
appreciate, or incorrectly appreciated, the serious                 — order the Commission to pay the costs .
dereliction of duty on the part of the competent Argentinian
authorities and/or the Argentinian Government in their
capacity as guarantor of the system for issuing and                  Pleas in law and main arguments:
monitoring certificates of authenticity in Argentina , as well
as its own serious dereliction of duty with regard to the            In the context of the tendering procedure for the supply of
implementation and supervision of the Community tariff               olive oil to the people of Georgia and Armenia, opened by
quotas within the Community . As a result of those                   Regulation ( EC ) No 2494/94 , the Commission awarded to
derelictions of duty, it had been possible to falsify                the applicant the supply of three of the consignments of olive
certificates of authenticity even before 1991 . The applicant        oil which were the object of the call for tenders . Following
should not, as an importer, be made to bear a risk which had        the award, the applicant fulfilled all the obligations relating
been created only as a result of the derelictions of duty, and      to the supply in question . However, the subsequent
which it was powerless to prevent.                                  take-over of the goods was delayed as a result of the
                                                                     negligent organization by the Commission of the
The decision breaches the principle of proportionality, since       embarkation and transport operations . By letter of 22 May
the Commission was in a position, having been empowered              1995 the applicant requested compensation for damage
so to do by the Council, to reduce, with regard to Argentina ,      suffered ( vehicles not able to be used, storage and insurance
the quota in respect of quantities of Hilton beef imported on       costs, cost of the bank guarantee and damage arising from
the basis of falsified certificates of authenticity, but only       the failure to use the appropriate lines of credit), for a total
partially availed itself of that option. The principle of           amounting to Lit 1 062 880 216 . On 29 September 1995 ,
proportionality precludes the Commission from                       following that request for compensation, the applicant
unjustifiably and unnecessarily imposing excessive import           received from the Commission credit of Lit 444 908 307. By
levies on the applicant in its capacity as a bona fide              a letter of 16 January 1 996 , the Commission sent the
importer .                                                          applicant a list of the expenditure which it agreed to
                                                                    compensate. The applicant points out that its dispute with
                                                                    the Commission essentially concerns the question of
 ---pagebreak--- 22 . 6 . 96           EN                  Official Journal of the European Communities                               No C 180/31
compensation for damage . It claims that the delay in taking         The applicants claim that the Court should:
over the delivery of oil caused not only the damage
acknowledged in the present case by the Commission but
also subsequent and extensive damage which the                       — annul Articles 1 and 2 of Council Regulation ( EC )
Commission has unlawfully failed to consider . In particular,            No 5/96 of 22 December 1995 imposing definitive
the Commission has not acknowledged : ( a ) loss of profits              anti-dumping duties on imports of microwave ovens
since the applicant did not have available the security lodged           originating in the People's Republic of China, the
in favour of the Commission. The security could not be                   Republic of Korea, Malaysia and Thailand, insofar as it
released during the whole period of the unlawful delay; ( b )            applies to the applicants; and
interest at the statutory rate and currency devaluation from
the moment the damage suffered by the applicant occurred .           — order the defendant institution to bear the costs of the
The applicant, after having sought in vain to reach an                   proceedings pursuant to Article 7 of the Rules of
understanding with the Commission, is now constrained to                 Procedure of the Court of First Instance .
bring an action under Articles 178 and 215 of the EC Treaty
in order to obtain full compensation for such harm.
                                                                     Pleas in law and main arguments:
Moreover, the applicant points out that the Commission
specifically refused to acknowledge part of the damage               The applicants, two companies incorporated under Swedish
complained of by a decision of the institution, commu               and Hong-Kong law respectively, belonging both to the
nicated to the applicant by the aforementioned letter of             multinational Whirlpool Corporation, the world's leading
16 January 1996 . Thus, the applicant also considered it             producer and marketer of quality major home appliances,
appropriate to bring an action under Article 173 of the              challenge Regulation ( EC ) No 5/96 on the following
Treaty for partial annulment against the decision itself. The        grounds :
applicant considers that the restriction placed on the extent
of the damage acknowledged is not justified on any objective         Violation of the basic Regulation and Anti-dumping Code.
or valid ground . The Commission has committed in the                The applicants submit on this regard that no causal link
present case a manifest error of assessment. It follows that         between imports from the countries concerned and an injury
the Commission, by refusing to acknowledge part of the               of the Community industry can be found . In the alternative ,
damage suffered by the applicant, has misused its powers,            should such a link be found, then an apportion should have
thus vitiating the lawfulness of the decision .                      been made by the Community institutions . Since no such
                                                                     apportion was made, the Community institutions would
                                                                     have violated Articles 4 ( 1 ) and 13 ( 3 ) of the basic
(') OJ No L 265 , 15 . 10 . 1994 .                                   Regulation and Articles 3.5 and II . 1 of the Anti-dumping
                                                                     Code .
                                                                     Consequently, by failing to conduct an appropriate inquiry,
                                                                     the Community institutions did not correctly apply the legal
                                                                     standard for the assessment of causation. In any case,
                                                                     Whirlpool results should have been taken into account
                                                                     when assessing injury.
                                                                     Infringement of an essential procedural requirement,
                                                                     insofar as the Community institutions breached the rights of
Action brought on 27 March 1996 by Whirlpool Sweden                  defence and the right to a fair hearing in the conduct of the
AB and Whirlpool SMC Microwave Products Co., Ltd,                    proceeding leading to the adoption of the contested
         against the Council of the European Union                   Regulation .
                        ( Case T-46/96 )
                          ( 96/C 180/80 )                            Misuse ofpower. The Community institutions misused their
                                                                     powers by failing to exert their delegated powers fairly and
                                                                     impartially, with due respect for procedural rights and
                                                                     general principles of Community law.
               (Language of the case: English)
                                                                     Infringement of Article 190 of the EC Treaty, inasmuch as
                                                                     the inaccurate, incomplete and contradictory statement of
An action against the Council of the European Union was              reasons presented by the Community institutions makes it
brought before the Court of First Instance of the European           impossible to know the real and complete reasons for their
Communities on 27 March 1996 by Whirlpool Sweden AB                  decisions .
and Whirlpool SMC Microwave Products Co., Ltd .,
represented by Mr Onno W Brouwer and Mr Pierre
Larouche with an address for service in Luxembourg at the
Chambers of Loesch & Wolter, 11 , rue Goethe .


title: Action brought on 25 October 1996 by the Italian Republic against the Council of the European Union (Case C-352/96)

text:
21 . 12 . 96                EN                    Official Journal of the European Communities                                    No C 388/5
2 . order the Federal Republic of Germany to pay the                         Action brought on 25 October 1996 by the Italian
      costs .                                                                      Republic against the Council of the European Union
                                                                                ( Case C-352/96 )
Pleas in law and main arguments adduced in support:                                                       ( 96/C 388/ 10 )
The mandatory character of the first paragraph of Article 5                  An action against the Council of the European Union was
and the third paragraph of Article 189 of the EC Treaty                      brought before the Court of Justice of the European
requires Member States to implement directives addressed                     Communities on 25 October 1996 by the Italian Republic,
to them in such a way that they take full effect by the                      represented by its Agent, Professor Umberto Leanza,
expiry of the prescribed period. That period expired on                      assisted by Danilo Del Gaizo, Avvocato dello Stato, with
5 May 1994 in relation to Directive 94/3/EC, and on                          an address for service in Luxembourg at the Italian
30 June 1994 in relation to the other Directives referred to                 Embassy, 5 Rue Marie-Adelaide .
above, without the Federal Republic of Germany having
taken the necessary measures.
                                                                             The applicant claims that the Court should declare null
                                                                             and void Council Regulation ( EC ) No 1522/96 of 24 July
f1)   OJ No   L 250, 7. 10. 1993 , p . 29 .                                  1996 (*) and, in particular, Articles 3 , 4 and 9 thereof.
(2)   OJ No   L 250, 7. 10 . 1993 , p . 31 .
(3)   OJ No   L 250, 7. 10 . 1993 , p . 33 .
(4 )  OJ No   L 256, 14 . 10 . 1993 , p . 19 .                               Pleas in law and main arguments adduced in support:
(5)   OJ No   L 256 , 14 . 10 . 1993 , p . 25 .
(6)   OJ No   L 32, 5 . 2 . 1994, p. 37.
                                                                             The Italian Republic maintains that, by adopting
                                                                             Regulation ( EC ) No 1522/96 and, in particular, Articles 3 ,
                                                                             4 and 9 thereof, the Council of the European Union has
                                                                             infringed GATT Article XXIV ( 6 ), Article 43 of the EC
                                                                             Treaty and the fundamental principle of proportionality. It
Reference for a preliminary ruling from the                                  also argues that the Commission infringed essential
Verwaltungsgerichtshof by order of that Court of                             procedural requirements: specifically, it failed to provide a
8 October 1996 in the case of Clean Car Autoservice                          proper statement of reasons and misused its powers.
           Ges.m.b.H. v. Landeshauptmann von Wien
                             ( Case C-3 50/96 )                              f 1 ) OJ No L 190, 31 . 7. 1996. p . 1 .
                               ( 96/C 388/09
Reference has been made to the Court of Justice
of the European Communities by - an order of                                 Action brought on 29 October 1996 by the Commission
the Verwaltungsgerichtshof (Administrative Court) of                                   of the European Communities against Ireland
8 October 1996 , which was received at the Court Registry                                               ( Case C-353/96 )
on 24 October 1996 , for a preliminary ruling in the case
of Clean Car Autoservice Ges.m.b.H. v. Landeshauptmann                                                      96/C 388/ 11 )
von Wien on the following questions:
                                                                             An action against Ireland was brought before the Court of
1 . Are Article 48 of the EC Treaty and Articles 1 to 3 of                   Justice of the European Communities on 29 October 1996
      Regulation ( EEC ) No 1612/68 (*) to be interpreted as                 by the Commission of the European Communities,
      meaning that employers in the host State also derive                   represented by Mr Richard Wainwright, Principal Legal
      therefrom the right to employ workers who are                          Adviser, acting as Agent, with an address for service in
      nationals of another Member State without being                        Luxembourg at the office of Mr Carlos Gomez de la Cruz,
       bound by conditions which — even if they do not                       member of its Legal Service, Centre Wagner, Kirchberg,
      depend on nationality — are typically linked with                      Luxembourg.
      nationality ?
                                                                             The applicant claims that the Court should:
2 . If employers of the host State have the right stated in
       Question 1 : Are Article 48 of the EC Treaty and                      — declare that, in failing to comply with the provisions
      Articles 1 to 3 of Regulation ( EEC ) No 1612/68 to be                       of Council Directive 77/62/EEC of 21 December 1976
      interpreted as meaning that a provision such as                              coordinating procedures for the award of public
      paragraph 39 ( 2 ) of the Gewerbeordnung 1994, under                         supply contracts ( J ), as amended by Directive 88/295/
      which the owner of a trade may appoint as manager                            EEC (2 ), and, in particular, in failing to publish its call
      for trade law purposes only a person whose residence                         for tender for the supply of fertilizers on behalf of the
      is in the host State (Austria ), is consistent therewith ?                   Irish Forestry Board ( Coillte Teoranta ) in the Official
                                                                                Journal of the European Communities, Ireland has
                                                                                failed to fulfil its obligations under the Treaty,
f 1 ) OJ, English Special Edition 1968 ( II ), p. 475 .
                                                                             — order Ireland to pay the costs .


title: Judgment of the Court (Fifth Chamber) of 8 March 2001 in Case C-415/98 (reference for a preliminary ruling from the Bundesfinanzhof): Laszlo Bakcsi v Finanzamt Fürstenfeldbruck (VAT — Articles 2(1), 5(6) and 11.A(1)(a) of the Sixth VAT Directive — Mixed-use goods — Incorporation into the private or business assets of a taxable person — Sale of a business asset — Second-hand item purchased from a private individual)

text:
16.6.2001                EN                      Official Journal of the European Communities                                           C 173/15
                 JUDGMENT OF THE COURT                                            person withdraws, such an item from his business, the value
                                                                                added tax on that item must be considered not to be deductible
                                                                                for the purposes of Article 5(6) of the Sixth Directive and no
                           (Fifth Chamber)                                        tax may therefore be levied on that withdrawal under that
                                                                                provision. If the taxable person subsequently sells the item, he
                          of 8 March 2001                                         will be carrying out that transaction in a private capacity and
                                                                                the transaction will therefore be excluded from the system of
                                                                                value added tax.
in Case C-415/98 (reference for a preliminary ruling
from the Bundesfinanzhof): Laszlo Bakcsi v Finanzamt
                        Fürstenfeldbruck (1)                                (1) OJ C 20 of 23.1.1999.
(VAT — Articles 2(1), 5(6) and 11.A(1)(a) of the Sixth VAT
Directive — Mixed-use goods — Incorporation into the
private or business assets of a taxable person — Sale of a
business asset — Second-hand item purchased from a private
                              individual)
                           (2001/C 173/24)                                                   JUDGMENT OF THE COURT
                                                                                of 8 March 2001
                   (Language of the case: German)
                                                                            in Case C-215/99 (reference for a preliminary ruling
(Provisional translation; the definitive translation will be published      from the Landesgericht Feldkirch): Friedrich Jauch v
                    in the European Court Reports)                                  Pensionsversicherungsanstalt der Arbeiter (1)
In Case C-415/98: reference to the Court under Article 177 of               (Social security for migrant workers — Austrian scheme of
the EC Treaty (now Article 234 EC) from the Bundesfinanzhof                 insurance against the risk of reliance on care — Classifi-
(Federal Finance Court) (Germany) for a preliminary ruling in               cation of benefits and lawfulness of the residence condition
the proceedings pending before that court between Laszlo                       from the point of view of Regulation (EEC) No 1408/71)
Bakcsi and Finanzamt Fürstenfeldbruck on the interpretation
of Sixth Council Directive 77/388/EEC of 17 May 1977 on                                                (2001/C 173/25)
the harmonisation of the laws of the Member States relating
to turnover taxes — Common system of value added tax:
uniform basis of assessment (OJ 1977 L 145, p. 1) — the
Court (Fifth Chamber), composed of: D.A.O. Edward, acting as                                    (Language of the case: German)
President of the Fifth Chamber, P. Jann and L. Sevón (Rappor-
teur), Judges; A. Saggio, Advocate General; L. Hewlett, Admin-
istrator, for the Registrar, has given a judgment on 8 March                (Provisional translation; the definitive translation will be published
2001, in which it has ruled:                                                                    in the European Court Reports)
1.    A taxable person who acquires a capital item in order to use it       In Case C-215/99: reference to the Court under Article 177 of
      for both business and private purposes may retain it wholly           the EC Treaty (now Article 234 EC) from the Landesgericht
      within his private assets and thereby exclude it entirely from the    (Regional Court) Feldkirch, Austria for a preliminary ruling in
      system of value added tax.                                            the proceedings pending before that court between Friedrich
                                                                            Jauch and Pensionsversicherungsanstalt der Arbeiter — on
2.    Where a taxable person has chosen to incorporate wholly into          the interpretation of Articles 10a(1) and 19(1) of Council
      his business assets a capital item which he uses for both business    Regulation (EEC) No 1408/71 of 14 June 1971 on the
      and private purposes, the sale of that item is subject in full to     application of social security schemes to employed persons, to
      value added tax, in accordance with Articles 2(1) and                 self-employed persons and to members of their families
      11.A(1)(a) of Sixth Council Directive 77/388/EEC of 17 May            moving within the Community, as amended and updated by
      1977 on the harmonisation of the laws of the Member States            Council Regulation (EC) No 118/97 of 2 December 1996 (OJ
      relating to turnover taxes — Common system of value added             1997 L 28, p. 1) — the Court, composed of: G.C. Rodrı́guez
      tax: uniform basis of assessment. Where a taxable person              Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet,
      assigns to his business assets only the part of the item used for     V. Skouris (Presidents of Chambers), D.A.O. Edward,
      business purposes, only the sale of that part is subject to value     J.-P. Puissochet (Rapporteur), P. Jann, L. Sevón, R. Schintgen,
      added tax. The fact that the item was purchased second-hand           F. Macken, N. Colneric, S. von Bahr, J.N. Cunha Rodrigues and
      from a non-taxable person and that the taxable person was             C.W.A. Timmermans, Judges; S. Alber, Advocate General; H.A.
      therefore not authorised to deduct the residual value added tax       Rühl, Principal Administrator, for the Registrar, has given a
      on that item is irrelevant in this regard. However, if the taxable    judgment on 8 March 2001, in which it has ruled:


title: Case T-141/01: Action brought on 20 June 2001 by Entorn, Sociedat Limitada Enginyeria i Serveis against Commission of the European Communities

text:
C 289/24                EN                     Official Journal of the European Communities                                       13.10.2001
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     ORDER OF THE COURT OF FIRST INSTANCE
                          of 27 June 2001                                                             of 7 June 2001
                                                                          in Case T-328/00: Mario Costacurta v Commission of the
in Joined Cases T-164/99, T-37/00 and T-38/00 Alain                                           European Communities (1)
   Leroy and Others v Council of the European Union (1)
                                                                          (Officials — Assignment of the applicant to a third country
(Decision 1999/307/EC — Integration of the Schengen                       in 1993 — Reintegration of the official in the Publications
Secretariat into the General Secretariat of the Council —                 Office in 1996 — Loss of entitlement to the derogating
                       Action for annulment)                              provisions of Annex X to the Staff Regulations — Request
                                                                          to be reassigned to a third State submitted in 2000 on the
                                                                          basis of Annex X — Inadmissibility of the action directed
                          (2001/C 289/59)                                           against the Commission’s implied decisions)
                                                                                (2001/C 289/60)
                    (Language of the case: French)
                                                                                (Language of the case: French)
In Joined Cases T-164/99, T-37/00 and T-38/00 Alain Leroy,
former employee of the Economic Union of Belgium, the                     In Case T-328/00: Mario Costacurta, an official of the Com-
Netherlands and Luxembourg (Benelux) seconded to the                      mission of the European Communities, residing in Luxem-
Schengen Secretariat, residing in Grimbergen, Belgium, Yan-               bourg, represented by M. Petit, lawyer, with an address for
nick Chevalier-Delanoue, official of the Council of the Euro-             service in Luxembourg, against Commission of the European
pean Union, residing in Brussels, Belgium, Virginia Joaquim               Communities (Agent: J. Currall) — application for annulment
Matos, residing in Montijo, Portugal, represented by G. Vander-           directed, first, against a supposed implied rejection of the
sanden and L. Levi, lawyers, with an address for service in               request to be reassigned to a third State, dated 6 June 2000,
Luxembourg, supported by Union syndicale-Bruxelles, estab-                and, secondly, against a supposed implied rejection of the
lished in Brussels, represented by S. Parmesan, lawyer, with an           applicant’s complaint of 24 October 2000 — the Court of
address for service in Luxembourg, intervener in Case T-                  First Instance (Second Chamber), composed of A.W.H. Meij,
164/99, against Council of the European Union (Agents:                    President, A. Potocki and J. Pirrung, Judges; H. Jung, Registrar,
M. Bauer, F. Anton, and A. Bentley) — application — in Case               made an order on 7 June 2001, the operative part of which is
T-164/99 — for annulment of Council Decision 1999/307/EC                  as follows:
of 1 May 1999 laying down the detailed arrangements for the
integration of the Schengen Secretariat into the General
Secretariat of the Council (OJ 1999 L 119, p. 49) and — in                1.    The application is dismissed as inadmissible.
Cases T-37/00 and T-38/00 — for annulment of Decision
1999/307, of various decisions of the Council appointing                  2.    The applicant shall bear all the costs, including those relating
other persons to posts within that institution, and of the                      to the interlocutory proceedings.
implied decisions of the Council not to appoint the applicants
to any of those posts, and for damages — the Court of
                                                                          (1) OJ C 372 of 23.12.00.
First Instance (Second Chamber), composed of A.W.H. Meij,
President, A. Potocki and J. Pirrung, Judges; D. Christensen,
Administrator, for the Registrar, has given a judgment on
27 June 2001, in which it:
1.    Dismisses the actions;
                                                                          Action brought on 20 June 2001 by Entorn, Sociedat
2.    In Case T-164/99, orders the applicant to bear his own costs        Limitada Enginyeria i Serveis against Commission of the
      and pay those incurred by the Council, and orders the intervener                          European Communities
      to bear its own costs;
                                                                                (Case T-141/01)
3.    In Cases T-37/00 and T-38/00, orders the parties to bear
      their own costs.
                                                                                (2001/C 289/61)
                                                                                (Language of the case: Spanish)
(1) OJ C 281 of 2.10.99.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
 ---pagebreak--- 13.10.2001            EN                    Official Journal of the European Communities                                     C 289/25
European Communities on 20 June 2001 by Entorn, Sociedat               Action brought on 2 July 2001 by D.L.D. Trading Com-
Limitada Enginyeria i Serveis, whose registered office is in           pany Import-Export, spol. s.r.o. against the Council of the
Barcelona (Spain), represented by Marı́a do Carmo Belard-                                      European Union
Kopke Marques-Pinto.
                                                                                (Case T-146/01)
The applicant claims that the Court should:                                                    (2001/C 289/62)
                                                                                (Language of the case: German)
—     annul in its entirety Commission Decision C(1999) 534
      of 4 March 1999 withdrawing the assistance granted to
      Entorn, Sociedat Limitada Enginyeria i Serveis under
      Decision C(93) 3394 of 26 November 1993 relating to              An action against the Council of the European Union was
      the granting of EAGGF — Guidance Section assistance in           brought before the Court of First Instance of the European
      accordance with Council Regulation (EEC) No 4256/88              Communities on 2 July 2001 by D.L.D. Trading Company
      for Project No 93.ES.06.030 entitled ‘Project demonstrat-        Import-Export, spol. s.r.o., Brno, Czech Republic, represented
      ing sumac cultivation using new cultivation techniques’;         by Johannes Hintermayr, Georg Minichmayr and Peter Burg-
                                                                       staller.
—     order the Commission of the European Communities to
      pay the costs.                                                   The applicant claims that the Court should:
                                                                       1.    order the Council to pay the applicant ATS
                                                                             10 000 000 within 14 days and declare the current
                                                                             version of Article 5(8) of Council Directive 69/169/EEC
                                                                             concerning travellers’ allowances and Regulation (EC)
Pleas in law and main arguments                                              No 2744/98 contrary to Community law;
                                                                       2.    order the Council to pay the costs.
The applicant claims, first, that the Commission has committed
an error of assessment of the facts in regarding it as the
addressee of the contested decision ordering the repayment of          Pleas in law and main arguments
EUR 725 094. In the applicant’s view, the Commission
acknowledged from the start of the project that the beneficiary
of the Community financial contribution was Entorn, Trading            The applicant is established in Brno, Czech Republic, and
Limited, a company incorporated under Irish law, with which            operates two ‘Duty Free Shops’ in that country. In practice, it
the applicant, Entorn, Sociedat Limitada Enginyeria i Serveis,         sells goods exclusively to travellers who import them into
has no economic, legal or financial connection whatsoever. It          Austria in their personal luggage for their personal use.
was to that organisation that was actually transferred the sum
of EUR 725 094, now being claimed from the applicant who
never received any monies whatever from the Commission.
                                                                       It argues that Council Regulation (EC) No 2744/98 (1) and/or
                                                                       Article 5(8) of Directive 69/169/EEC as amended by Council
                                                                       Directive 91/191/EEC (2) are contrary to primary Community
                                                                       law and the general principles of the Community and are
The applicant submits, secondly, that the contested decision is        illegal.
vitiated by a breach of essential procedural requirements, since
the formalities necessary for its adoption have not been
complied with. Indeed, the Commission has not provided the             The Council regulation on exemption from customs duty as
defendant with an opportunity to defend itself prior to the            amended by Regulation (EC) No 2744/98 exempts imports of
closure of the administrative procedure, thereby offending             goods from a non-member country contained in luggage
against the fundamental principle of Community law which               which are not commercial in character. However, the exemp-
provides that, in any proceedings against a person which may           tion applies only up to a certain maximum value. Pursuant to
result in a decision adversely affecting it, the right to a fair       a derogating provision, the duty-free limit which applied in
hearing must be observed, a principle which applies even               Austria until 31 December 1997 was 75 ecus. On 14 Decem-
where there does not exist any legislation governing such              ber 1998, the Council adopted Regulation (EC) No 2744/98,
procedure.                                                             whereby the duty-free amount may be limited by national
                                                                       measures, and made that regulation enter into force retro-
                                                                       actively on 1 January 1998, extending the derogation from the
                                                                       uniform system of exemption from customs duty for a period
                                                                       of eight years overall.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 23 February 1995 in Case C-334/93 (reference for a preliminary ruling from the Finanzgericht Düsseldorf): Bonapharma Arzneimittel GmbH v. Hauptzollamt Krefeld (EEC - Austria free-trade agreement - Concept of originating product - Protocol 3 - Methods of administrative cooperation - EUR.1 certificate)

text:
8 . 4. 95           LEN                   Official Journal of the European Communities                                 No C 87/1
                                                                  I
                                                            (Information)
                                              COURT OF JUSTICE
                                                         COURT OF JUSTICE
               JUDGMENT OF THE COURT                                  interpreted as not precluding national rules which require
                       (Fourth Chamber)                               that nationals of that Member State hold a diploma in order
                                                                      to operate a hairdressing salon, while permitting
                     of 16 February 1995                              hairdressers who are nationals of other Member States to
in Joined Cases C-29/94, C-30/94, C-31/94, C-32/94,                   operate a hairdressing salon without holding such a diploma
C-33/94, C-34/94 and C-35/94 (reference for a preliminary             and without being obliged to entrust its operation to a
ruling from the Tribunal de Grande Instance de                        manager holding that diploma.
Charleville-Mézières (France)): Criminal proceedings
against Jean-Louis Aubertin, Bernard Collignon, Guy                   (!) OJ No C 76, 12 . 3 . 1993 .
Creusot, Isabelle Diblanc, Gilles Josse, Jacqueline Martin,           (2 ) OJ No L 218 , 27. 7. 1982, p. 24 .
                     Claudie Normand ( 1 )
       (Hairdressers — Council Directive 82/489/EEC)
                          ( 95/C 87/01 )
                (Language of the case: French)                                      JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(Provisional translation; the definitive translation will be                               of 23 February 1995
          published in the European Court Reports)
                                                                      in Case C-334/93 (reference for a preliminary ruling from
                                                                      the Finanzgericht Diisseldorf): Bonapharma Arzneimittel
In Joined Cases C-29/94, C-30/94, C-31/94, C-32/94,                                GmbH v. Hauptzollamt Krefeld ( ! )
C-33/94, C-34/94 and C-35/94: reference to the Court                  (EEC — Austria free-trade agreement — Concept of
under Article 177 of the EC Treaty from the Tribunal de               originating product — Protocol 3 — Methods of
Grande Instance (Regional Court), Charleville-Mezieres                      administrative cooperation — EUR.l certificate)
( France ), for a preliminary ruling in the criminal
                                                                                ( 95/C 87/02
proceedings pending before that court against Jean-Louis
Aubertin, Bernard Collignon, Guy Creusot, Isabelle
Diblanc, Gilles Josse, Jacqueline Martin, Claudie Normand                            (Language of the case: German)
— on the interpretation of Council Directive 82/489/EEC of
 19 July 1982 laying down measures to facilitate the effective        (Provisional translation; the definitive translation will be
exercise of the right of establishment and freedom to                          published in the European Court Reports)
provide services in hairdressing (2 ) — the Court (Fourth
Chamber), composed of P.J.G. Kapteyn, President of the                In Case C-334/93 : reference to the Court under Article 177
Chamber, C.N. Kakouris ( Rapporteur), and J.L. Murray,
Judges; C.O. Lenz, Advocate-General; R.Grass, Registrar,              of the EEC Treaty by the Finanzgericht (Finance Court),
gave a judgment on 16 February 1995 , the operative part of           Diisseldorf, Germany for a preliminary ruling in the
which is as follows :                                                 proceedings pending before that court between
                                                                      Bonapharma Arzneimittel GmbH and Hauptzollamt
                                                                      Krefeld, on the interpretation of the Agreement between the
Community law, in particular Council Directive                        European Economic Community and the Republic of
 82/489/EEC of 19 July 1982 laying down measures to                   Austria, signed in Brussels on 22 July 1972 and approved by
facilitate the effective exercise of the right of establishment       Council Regulation (EEC) No 2836/72 of 19 December
and freedom to provide services in hairdressing, must be               1972 concluding an Agreement between the European
 ---pagebreak---  No C 87/2              EN                 Official Journal of the European Communities                                   8 . 4 . 95
 Economic Community and the Republic of Austria and                   obligations under the EEC Treaty and in particular under
 adopting provisions for their implementation (2), in                 Commission Decision 90/224/EEC of 24 May 1989 on aid
 particular Protocol 3 annexed thereto concerning the                 granted by the Italian Government to Aluminia and Comsal,
 definition of the concept of 'originating products' and              two State-owned undertakings in the aluminium
 methods of administrative cooperation — the Court (Fifth             industry (2) — the Court ( Sixth Chamber), composed of
 Chamber), composed of C. Gulmann, President of the                   F.A. Schockweiler (Rapporteur), President of the Chamber,
 Chamber, J.C. Moitinho de Almeida and D.A.O. Edward                  G.F. Mancini, C.N. Kakouris, J.L. Murray and G. Hirsch,
 ( Rapporteur), Judges; C.O. Lenz, Advocate-General; H. von          Judges; F.G. Jacobs, Advocate-General; R. Grass, Registrar,
 Holstein, Deputy Registrar, for the Registrar, gave a                gave a judgment on 23 February 1995, in which it:
judgment on 23 February 1995, the operative part of which
 is as follows:
                                                                      1 . declares that by not ordering the recovery of aid
                                                                             improperly paid in 1987 to the Aluminia undertaking
It is permissible to dispense with production of the                         and the Comsal undertaking, part of the EFIM group,
 documents mentioned in Title II of Protocol 3 to the                        the Italian Republic has failed to comply with its
EEC-Austria Agreement in the version contained in Council                    obligations under the EEC Treaty and in particular
Regulation (EEC) No 1598/88 of 24 May 1988 on the                            under Commission Decision 90/224/EEC of 24 May
application of Decision No 1 /88 of the EEC-Austria Joint                    1989 on aid granted by the Italian Government to
 Committee amending Protocol 3 concerning the definition                     Aluminia and Comsal, two State-owned undertakings in
of the concept of 'originating products ' and methods of                     the aluminium industry;
administrative cooperation, where the origin ofthe goods in
issue has been established beyond doubt on the basis of
objective evidence which could not have been manipulated              2. orders the Italian Republic to pay the costs.
or falsified by those involved, where both the importer and
the exporter concerned took the steps necessary to obtain             i 1 ) OJ No C 231 , 27. 8 . 1993 .
the documents referred to in the Protocol, and where it was           (2) OJ No L 118, 9. 5 . 1990, p. 42.
for reasons beyond their control, such as anticompetitive
conduct by other persons concerned contrary both to the
objective and the terms of the Agreement, that it was
impossible for them to produce those documents.
0 ) OJ No C 215, 10 . 8 . 1993 .
(2 ) OJ No L 300 , 31 . 12 . 1972, p. 1 .                                             JUDGMENT OF THE COURT
                                                                                of 23 February 1995
                                                                     in Joined Cases C-358/93 and C-416/93 (references for a
                                                                     preliminary ruling from the Juzgado Central de lo Penal de
                                                                     la Audiencia Nacional): criminal proceedings against Aldo
                                                                     Bordessa and against Vicente Mari Mellado, Concepción
                                                                                Barbero Maestre l 1 )
               JUDGMENT OF THE COURT                                  (Council Directive 88/361/EEC — National authorization
                         ( Sixth Chamber)                                   for the transfer of money in the form of banknotes)
                     of 23 February 1995                                                          ( 95/C 87/04 )
in    Case   C-349/93 : Commission of the European
             Communities v. Italian Republic (*)                                       (Language of the case: Spanish)
(State aid — Commission decision ordering recovery ofaid
                      — Non-compliance)
                                                                     (Provisional translation: the definitive translation will be
                            ( 95/C 87/03 )
                                                                                published in the European Court Reports)
                (Language of the case: Italian)                      In Joined Cases C-358/93 and C-416/93 : references to the
                                                                     Court under Article 1 77 of the EEC Treaty from the Juzgado
(Provisional translation; the definitive translation will be         Central de lo Penal de la Audiencia Nacional (National High
         published in the European Court Reports)                    Court) for a preliminary ruling in the criminal proceedings
                                                                     pending before that court against Aldo Bordessa ( Case
                                                                     C-358/93 ) and Vicente Man Mellado, Conception Barbero
In Case C-349/93 : Commission of the European                        Maestre ( Case C-416/93 ) — on the interpretation of
Communities (Agents: Antonino Abate and Vittorio Di                  Articles 30 and 59 of the EEC Treaty, and Articles 1 and 4 of
Bucci ) v. Italian Republic (Agent: Luigi Ferrari Bravo) —           Council Directive 88/361/EEC of 24 June 1988 for the
application for a declaration that by not ordering the               implementation of Article 67 of the Treaty (2) — the Court,
repayment of aid improperly paid in 1987 to the Aluminia             composed of G.C. Rodriguez Iglesias, President, F.A.
undertaking and the Comsal undertaking, part of the EFIM             Schockweiler and P.J.G. Kapteyn ( Rapporteur), (Presidents
group, the Italian Republic has failed to comply with its            of Chambers ), G.F. Mancini, C.N. Kakouris, J.C. Moitinho


title: Reference for a preliminary ruling from the Bundessozialgericht (Federal Social Court) by order of that Court of 13 May 1998 in the Case of Manfred Sehrer v. Bundesknappschaft (Federal Pension Fund for Miners), intervener: Landesversicherungsanstalt für das Saarland (Regional Insurance Institution for the Saarland) (Case C-302/98)

text:
26.9.98               EN                  Official Journal of the European Communities                                           C 299/25
    condition not provided for by the definitive list                consequences set out therein take effect even in the
    contained in those provisions,                                   absence of any corresponding provision of national law?
                                                                     (1) OJ L 336, 23.12.1994, p. 213.
Ð breach of the principle that no one is bound to do the
    impossible', in that it held their failure to discharge an
    impossible burden of proof to be decisive,
Ð breach of Article 5(2) of Council Regulation (EEC)
    No 1697/79 and Article 220 of Regulation (EEC)
    No 2913/92, in that it interpreted those provisions as           Reference for a preliminary ruling from the Bundessozial-
    meaning that the customs authorities did not commit              gericht (Federal Social Court) by order of that Court of
    an error' when the undue payment was consistent                 13 May 1998 in the Case of Manfred Sehrer v. Bundes-
    with the declaration made by the exporter, and                   knappschaft (Federal Pension Fund for Miners),
    therefore there was an induced' error,                          intervener: Landesversicherungsanstalt für das Saarland
                                                                           (Regional Insurance Institution for the Saarland)
                                                                                (Case C-302/98)
Ð breach of the principle of protection of legitimate
    expectations. The Court of First Instance upheld the                                        (98/C 299/39)
    unusual concept of commercial risk' to be borne by
    all traders, although well aware that it is possible for
    the customs authorities to alter their findings,                 Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Bundessozialge-
                                                                     richt (Eighth Chamber) of 13 May 1998, which was
Ð infringement of Articles 30 and 36 of the Treaty, in
                                                                     received at the Court Registry on 3 August 1998, for a
    that, by declaring that a customs' risk existed, it
                                                                     preliminary ruling in the Case of Manfred Sehrer v. Bun-
    upheld the need for a disguised restriction on trade
                                                                     desknappschaft, intervener: Landesversicherungsanstalt für
    between Member States,
                                                                     das Saarland on the following question.
Ð breach of the principle ne bis in idem and of Article 5
                                                                     Do Articles 6 and 48 to 51 of the Treaty establishing the
    of Council Regulation (EEC) No 1697/79 and
                                                                     European Community and Article 3 of Council Regulation
    Article 220 of Regulation (EEC) No 2913/92, in that
                                                                     (EEC) No 1408/71 (1), on the application of social security
    it did not annul the Decision, or even the part of the
                                                                     schemes to employed persons, to self-employed persons
    Decision authorising recovery of duties relating to a
                                                                     and to members of their families moving within the
    customs slip which had already been paid by CPL
                                                                     Community, preclude national rules under which the
    Imperial 2 SpA.
                                                                     whole of a supplementary French pension paid on the
                                                                     basis of a collective agreement is subject to contributions
(1) OJ L 197, 3.8.1979, p. 1.                                        by the pensioner both to the French sickness insurance
(2) OJ L 302, 19.10.1992, p. 1.                                      scheme and to the German sickness insurance scheme?
                                                                     (1) Official Journal, English Special Edition, First Series II, p. 416.
Reference for a preliminary ruling by the Arrondissements-
rechtbank, The Hague in the Case of Parfums Christian
            Dior SA against Tuk Consultancy BV
                                                                     Reference for a preliminary ruling by the Sala de lo Social
                       (Case C-300/98)                               del Tribunal Superior de Justicia de la Comunidad Valen-
                         (98/C 299/38)                               ciana by order of that court of 10 July 1998 in the Case
                                                                     of SIMAP (Sindicato de MeÂdicos de Sanidad de Asistencia
                                                                     PuÂblica) against the Conselleria de Sanidad y Consumo de
                                                                                la Generalitat Valenciana
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondisse-                                           (Case C-303/98)
mentsrechtbank (District Court), The Hague, of 25 June
                                                                                (98/C 299/40)
1998, received at the Court Registry on 29 July 1998, for
a preliminary ruling in the Case of Parfums Christian Dior
SA against Tuk Consultancy BV on the following question.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Sala de lo Social
Is Article 50(6) of the Agreement on trade-related aspects           del Tribunal Superior de Justicia de la Comunidad Valen-
of intellectual property rights (1) to be interpreted as             ciana (Chamber for Labour Matters of the High Court of
having direct effect in the sense that the legal                     Justice of the Valencia Community) of 10 July 1998,


title: Reference for a preliminary ruling from the Bundesverwaltungsgericht by order of that court of 28 September 1994 in the case Land Rheinland-Pfalz v. Alcan Deutschland GmbH; Joined Party: Oberbundesanwalt beim Bundesverwaltungsgericht (Case C-24/95)

text:
25 . 3 . 95              EN                  Official Journal of the European Communities                                 No C 74/7
marketing non-Community bananas than from marketing                     Reference for a preliminary ruling from the Pretura
the same quantity of EC/ACP bananas.                                    Circondariale di Terni by order of 24 January 1995 in the
                                                                        criminal proceedings pending before it against Ivana Rosi
f 1 ) OJ No L 296 , 17 . 11 . 1994 , p. 33 .                                                   ( Case C-26/95 )
                                                                                ( 95/C 74/11 )
Reference for a preliminary ruling from the
                                                                        Reference has been made to the Court of Justice of the
Bundesverwaltungsgericht by order of that court of
28 September 1994 in the case Land Rheinland-Pfalz                      European Communities by an order of the Pretura
                                                                        Circondariale ( District Magistrate's Court), Terni, of
v.       Alcan Deutschland             GmbH; Joined         Party:
      Oberbundesanwalt beim Bundesverwaltungsgericht                    24 January 1995, which was received at the Court Registry
                                                                        on 6 February 1995 , for a preliminary ruling in the criminal
                          ( Case C-24/95 )                              proceedings pending before it against Ivana Rosi on the
                             ( 95/C 74/10 )                             following questions:
Reference has been made to the Court of Justice of the
European Communities by an order of the                                 whether the definitions of 'waste ' and 'waste destined for
Bundesverwaltungsgericht ( Federal Administrative Court)
                                                                        recovery' laid down in Council Directive 91/156/EEC (*),
of 28 September 1994 , which was received at the Court
Registry on 2 February 1995 , for a preliminary ruling in the
                                                                        Council Directive 91/689/EEC (2 ) and Regulation ( EEC )
case of Land Rheinland-Pfalz v. Alcan Deutschland GmbH;
                                                                        No 259/93 ( 3 ) should at present continue to be understood
                                                                        and interpreted in the light of the previous case-law of the
Joined             party:         Oberbundesanwalt           beim       Court and whether at the same time those two definitions
Bundesverwaltungsgericht ( Senior Federal Attorney at the
Federal Administrative Court), on the following                         may in every case be regarded as including all materials,
questions :
                                                                        however residual, derived from production or consumption
                                                                        cycles in a manufacturing or combustion process and, if so,
                                                                        whether those materials as well are to be regarded from the
1 . is the competent authority obliged, by reason of the                point of view of Community rules as being subject to the
      requirement to apply national law in such a way that              system established by the abovementioned directives;
      'the recovery required by Community law is not
      rendered practically impossible and the interests of the
      Community are taken fully into consideration', to
      revoke, in accordance with a final, binding decision of           whether a deactivation process intended merely to render
      the EC Commission ordering recovery, the aid decision             waste harmless may be included among the operations
      in question even if the authority has allowed the                 intended to make a residue re-usable and therefore as such
      preclusive time-limit which exists for that purpose under         falling outside the system laid down by the Community
      national law in the interest of legal certainty to                legislation on waste;
      elapse ?
2 . If the reply to Question 1 is in the affirmative :
                                                                        whether landfill tipping in hollows or embankmens may be
      is the competent authority obliged, by reason of the              regarded as the recovery of waste capable of being classified
       abovementioned requirement, to revoke, in accordance             as residues not governed by EEC legislation on waste;
      with a final, binding decision of the EC Commission
       ordering recovery, the aid decision in question even if
       the competent authority is responsible for the illegality
       of the aid decision to such a degree that revocation             whether waste incineration may be included among the
       appears to be a breach of good faith towards the                 recovery of materials simply because marketable residues
       recipient ?                                                      are obtained therefrom and may consequently fall outside
                                                                        the system laid down by the Community legislation on
                                                                        waste and in particular outside the incineration rules;
 3 . If the replies to Questions 1 and 2 are in the
       affirmative :
       is the competent authority obliged, by reason of the             whether waste may be classified as a re-usable residue
       abovementioned requirement, to demand, in                        without its characteristics or purpose being defined to that
       accordance with a final, binding decision of the EC              end and may thus fall outside the scope of the EEC
       Commission ordering recovery, the repayment of the aid           legislation on waste;
       which was granted even if such demand is excluded by
       national law because the gain no longer exists and in the
       absence of bad faith on the part of the recipient of the
       aid ?                                                            whether waste which is merely ground without its
                                                                        characteristics being altered in any way may become a
                                                                         residue falling outside the EEC legislation on waste where