title: Action brought on 10 December 1996 by Embassy Limousines & Services SA against European Parliament (Case T-203/96)

text:
No C 54/30           I EN                 Official Journal of the European Communities                                   22 . 2 . 97
order to ensure compliance with the judgment by the                  awarded, subject to Luxembourg law and also provided
French State. The applicants consider that the Commission            for the exclusive jurisdiction of the Court of Justice of the
allowed the French State total discretion and complete               European Communities .
freedom to resort to whatever domestic legal provisions
were necessary in order to negate the entire effect of               The applicant claims, first, that there has been an
the provisions of Community law thus adjudicated on,                 infringement of Articles 1134, 1134-1 and 1135 of the
thereby seriously undermining the coherence and                      Luxembourg Civil Code, of the general principles of the
effectiveness of those provisions .                                  law on contracts and of the performance in good faith of
                                                                     contracts . It stresses in that regard that the contract at
The applicants further consider that the aggregated                  issue was awarded by valid, public and unequivocal
damage to be made good by the Commission, whose                      consensus ad idem .
failure to act continues to render it liable, amounts to 25
million French francs, valued as at 1988 , subject to                Secondly, the applicant states that even if it were to be
application of the appropriate weighting to take into                assumed that there was no actual or apparent contract in
account the depreciation of that currency, namely 1,19%              this case, which is denied, there should be a finding of
 ( total sum : ECU 4 562 884 ).                                      tortious liability, first, during the precontractual phase
                                                                     and, secondly, by virtue of infringement of Article 1382 et
H 1988 ECR 4489 .                                                    seq. of the Luxembourg Civil Code and of the Grand
                                                                     Ducal Regulation of 27 January 1994 implementing in
                                                                     Luxembourg law the EEC directives on public works
                                                                     contracts, public supply contracts and public services
                                                                     contracts . Specifically, there is no doubt that all the
                                                                     information required from tenderers was contained in the
Action brought on 10 December 1996 by Embassy                        applicant's tender in accordance with Article 29 of Title II
    Limousines & Services SA against European Parliament             of the abovementioned Grand-Ducal Regulation. Likewise,
                        ( Case T-203/96 )                            Article 23 of the General Conditions established by that
                                                                     regulation permits a supplier to be excluded from
                           ( 97/C 54/49 )                            participation in the contracting procedure only in the
                 (Language of the case: French)                      exhaustive cases to which it refers, which, according to
                                                                     the applicant, are wholly inapplicable here .
An action against the European Parliament was brought
before the Court of First Instance of the European                   The applicant concludes that in any event the defendant
Communities on 10 December 1996 by Embassy                           institution conducted itself negligently and even
                                                                     improperly in ignoring and flouting its interests. If the
Limousines & Services SA, whose registered office is at
                                                                     defendant did not intend to perform the contract and/or
Diegem, Belgium, represented by E. Boigelot, of the
Brussels Bar, with an address for service in Luxembourg at           considered that no contract had arisen, it is particularly
the Chambers of Louis Schiltz, 2 rue du Fort Rheinsheim .            abusive and injurious to require the applicant to carry out
                                                                     urgent and costly preparation, which was particularly
The applicant claims that the Court should:                          demanding in terms of time, energy and expense, for a
                                                                     contract which it is then decided not to perform or which
— order the European Parliament to pay to the applicant              is alleged to be non-existent.
      the sum of FB 24 267 910, subject to an increase or
      reduction in that amount in the course of the
      proceedings, by way of compensation for the financial,
      commercial and non-material damage which it is
      suffering on account of the wrongful conduct of the
      European Parliament,                                           Action brought on 9 December 1996 by Mrs Marta
                                                                     Alvarez-Cotera against the Commission of the European
                                                                                Communities
— order the European Parliament to bear all the costs of
      the proceedings.                                                                      ( Case T-204/96 )
                                                                                ( 97/C 54/50 )
Pleas in law and main arguments adduced in support:
                                                                                (Language of the case: English)
The applicant, a service company, which claims to have
been contacted officially by a representative of the                 An action against the Commission of the European
defendant institution for the purpose of informing it of the         Communities was brought before the Court of First
award to it of the contract for which it had tendered                Instance of the European Communities on 9 December
concerning the provision, by external services, of                   1996 by Mrs Marta Alvarez-Cotera , represented by
chauffeur-driven transport on the occasion of meetings in            Gerald van der Wal, Member of the Bar of the Supreme
Brussels, objects to the withdrawal of the invitation to             Court of the Netherlands, of Barents & Krans, Advocaten
tender in question and the initiation of a new award                 Notarissen , Brussels , with an address for service in
procedure .                                                          Luxembourg at the Chambers of A. May, Luxembourg.
It explains that under the terms of the invitation to tender         The applicant claims that the Court should :
and the framework contract at issue the European
Parliament made the framework contract, and contracts                — declare the decision of 25 September 1996 void,


               3.6.2006

               EN

               Official Journal of the European Union

               C 131/55

         (2006/C 131/100)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 121, 20.5.2006

   Past publications

      OJ C 108, 6.5.2006

      OJ C 96, 22.4.2006

      OJ C 86, 8.4.2006

      OJ C 74, 25.3.2006

      OJ C 60, 11.3.2006

      OJ C 48, 25.2.2006

   These texts are available on:

               EUR-Lex:http://europa.eu.int/eur-lex

               CELEX:http://europa.eu.int/celex


title: Case T-358/12 P: Appeal brought on 8 August 2012 by Rosella Conticchio against the order of the Civil Service Tribunal of 12 July 2012 in Case F-22/11 Conticchio v Commission

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/31

         Appeal brought on 8 August 2012 by Rosella Conticchio against the order of the Civil Service Tribunal of 12 July 2012 in Case F-22/11 Conticchio v Commission
   (Case T-358/12 P)
   2012/C 295/55
   Language of the case: Italian

      Parties

      Appellant: Rosella Conticchio (Rome, Italy) (represented by: R. Giuffrida and A. Tortora, lawyers)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               set aside the order of the Civil Service Tribunal of 12 July 2012 in Case F-22/11 Conticchio v Commission;

               —

               grant the appellant the form of order sought at first instance;

               —

               in the alternative, in the event that the Court should consider it appropriate and necessary, refer the case back to the Civil Service Tribunal to rule on the form of order sought by her at first instance;

               —

               declare that the action at first instance, in relation to which the order under appeal was made, was admissible and well founded in its entirety, without exception;

               —

               order the defendant to reimburse the appellant all costs, disbursements and fees incurred by her in relation both to the proceedings at first instance and to the present appeal proceedings.

      Pleas in law and main arguments

   The present appeal is brought against the order of the Civil Service Tribunal of the European Union of 12 July 2012, in Case F-22/11 Conticchio v Commission, dismissing, as being in part manifestly inadmissible and in part manifestly unfounded, an action principally seeking annulment of the decision calculating the appellant’s retirement pension.
   The appellant relies on three grounds of appeal.

               1.

               First ground of appeal: ‘Failure to have regard to the principle of good faith, fairness and impartiality — failure to indicate clearly the prescriptive authority to be attributed to certain provisions and practices followed by the Commission in its relationships with its employees’
               In that connection, the appellant states that in the order under appeal her arguments were held to be manifestly unfounded, with the Civil Service Tribunal finding that the salary slip for January 2010 could be challenged as from when she became aware of her actual position. However, that salary slip is not a decision-making act which can be challenged independently, since it is not conclusive of her position at the time of pension. It is settled case-law that, since a salary slip is an administrative decision of an accounting nature, it cannot constitute per se an act adversely affecting an official and, consequently, in the absence of other specific elements, it is not open to challenge before the courts. In that regard, the appellant states that the SysPer 2 system is not sufficient to quantify future pension rights in pecuniary terms, just as the ‘Calculette Pension’ (pensions calculator) gives a figure which is solely indicative and not open to challenge. Ms Conticchio was only able to challenge the final decision, communicated in writing, concerning the award and calculation of her pension rights, since it was not until then that she could be certain of the exact monthly amount of the pension itself.

               2.

               Second ground of appeal: ‘Infringement of the right to judicial protection and the right to a public hearing’
               Since the Civil Service Tribunal took the view that the documents before it provided it with sufficient information, it decided to give a decision by reasoned order without taking further steps in the proceedings. That decision infringed the appellant’s right to full judicial protection. Ms Conticchio’s right to set out her own arguments was not upheld; nor, contrary to the principle of fair legal process, was she allowed to provide further clarification with regard to possible grounds of inadmissibility and/or the unfounded nature of the action. To that effect, the appellant states that Article 41 of the Charter of Fundamental Rights of the European Union enshrines the right to good administration, understood as the right of every person to have his affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the European Union. That right includes, inter alia, the right of every person to be heard before the adoption of an individual measure which affects him adversely.

               3.

               Third ground of appeal:‘Unjust enrichment — Infringement of due process’
               The appellant submits that the action at first instance cannot be considered out of time, since it was impossible to draw enough evidence from the salary slip to support the plea in law under consideration. The appellant was unable to allege unjust enrichment by the Commission until 26 May 2010, when she received the decision calculating her pension. At no point did she have full knowledge of the amount of contributions paid, since she never received the relevant notifications from the Commission services responsible. It must also be stated that the actuarial equivalent of the previous pension rights accrued by her with the Italian Istituto nazionale della previdenza sociale (National institution for social welfare) was paid to the Commission and those rights transferred to the Community pension scheme, thereby creating an imbalance between the pension which she received and the contributions paid throughout her career. In that way, the Administration first required a specific level of contributions and then awarded a level of seniority lower than the actual number of years worked during the career, giving rise to its own unjust enrichment at the expense of its officials.


title: Case C-561/16: Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 7 November 2016 — Saras Energía SA v Administración del Estado

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/12

         Request for a preliminary ruling from the Tribunal Supremo (Spain) lodged on 7 November 2016 — Saras Energía SA v Administración del Estado
   (Case C-561/16)
   (2017/C 022/18)
   Language of the case: Spanish

      Referring court

   Tribunal Supremo

      Parties to the main proceedings

      Applicant: Saras Energía SA

      Defendant: Administración del Estado

      Questions referred

               (1)

               Is legislation of a Member State establishing a national energy efficiency obligation scheme whose main method of compliance consists in an annual financial contribution to an Energy Efficiency National Fund established under the provisions of Article 20(4) of Directive 2012/27/EU (1) compatible with Article 7(1) and (9) of that directive?

               (2)

               Is national legislation which provides for the possibility of fulfilling the energy savings obligations through the accreditation of savings as an alternative to the financial contribution to the Energy Efficiency National Fund compatible with Articles 7(1) and 20(6) of Directive 2012/27/EU?

               (3)

               If the above question is answered in the affirmative, is the provision of that alternative possibility for the fulfilment of the energy savings obligations compatible with the abovementioned Articles 7(1) and 20(6) of the directive when its actual existence depends on whether the Government establishes it on a discretionary basis through legislation?
               In that respect, is such legislation compatible when the Government does not implement that alternative?

               (4)

               Is a national scheme which considers only retail energy sales companies and not distributors to be parties subject to energy savings obligations compatible with Article 7(1) and (4) of the directive?

               (5)

               If the answer to the above question is in the affirmative, is the definition of retail companies as ‘obligated parties’, without the reasons being determined for energy distributors not being so defined, compatible with the abovementioned provisions of Article 7?

      (1)  Directive 2012/27/EU of the European Parliament and of the Council of 25 October 2012 on energy efficiency, amending Directives 2009/125/EC and 2010/30/EU and repealing Directives 2004/8/EC and 2006/32/EC.

      OJ 2012 L 315, p. 1.


title: Case T-87/03: Action brought on 5 March 2003 by Intech EDM AG against the Commission of the European Communities

text:
10.5.2003              EN                          Official Journal of the European Union                                         C 112/39
Action brought on 6 March 2003 by Holcim against the                       Action brought on 5 March 2003 by Intech EDM AG
          Commission of the European Communities                             against the Commission of the European Communities
                           (Case T-86/03)
                                                                                (Case T-87/03)
                          (2003/C 112/74)
                                                                                (2003/C 112/75)
                    (Language of the case: French)
                                                                                (Language of the case: German)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 6 March 2003 by Holcim, a
company established in Paris, represented by Marie-Pia Hutin-
Houillon, lawyer.                                                          An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 5 March 2003 by Intech EDM AG,
The applicant claims that the Court should:                                Losone (Switzerland), represented by M. Karl, Rechtsanwalt.
—     order the Commission to pay EUR 1 488 287,50, corre-
      sponding to the amount of interest to be repaid to
      Holcim, successor to the company Cedest;                             The applicant claims that the Court should:
—     order it to pay, in addition, default interest for the period        —     annul the Commission’s decision of 17 December 2002
      running from 27 July 2000 until judgment is delivered in                   (Case COMP/E-2/37.667 -Special Graphite);
      the present action;
—     declare that both those amounts are to bear interest from            —     in the alternative, reduce the fine imposed by Article 3(h)
      the date judgment is delivered until full payment is made.                 of the decision;
                                                                           —     order the Commission to pay the costs.
Pleas in law and main arguments
The defendant’s decision 94/815/EC imposed on Cedest SA a
fine of ECU 2 522 000 for infringing former Article 85(1) of               Pleas in law and main arguments
the EC Treaty. Following an action for annulment brought by
Cedest (Case T-38/95), the Court, by a judgment of 15 March
2000, annulled the contested decision so far as concerned
Cedest. As a result of that judgment, the defendant repaid to              The applicant distributes isostatically pressed special graphite,
Cedest the principal amount of the fine, but it rejected Cedest’s          but does not itself produce it. Its activity in the European
request concerning payment of interest on that amount in                   special graphite market is based on a cooperation agreement
respect of the period running from 7 May 1995 (payment of                  between itself and Ibiden Co. Ltd., a Japanese producer
the fine by Cedest) to 27 July 2000 (repayment of the fine by              of isostatic special graphite. The Commission accused the
the defendant).                                                            applicant, Intech EMD BV (the former parent company of the
                                                                           applicant), and various producers of isostatic special graphite
                                                                           (including Ibiden) of taking part in a continuing agreement
The applicant has brought the present application asserting                and/or concerted practice on the market for special graphite
that it is the successor to Cedest following a merger. In support          in the European Community and the European Economic
of its application, the applicant claims that the payment of               Area. According to the Commission’s finding, the applicant
default interest on the principal sum of the fine was a measure            participated from February 1994 to May 1997 at European
to implement the judgment annulling the decision which the                 and regional level.
defendant was required to adopt, even in the absence of any
fault on its part. According to the applicant, the defendant’s
failure in this respect enables it, by virtue of the second
paragraph of Article 233 of the EC Treaty, to bring an action              The pleas in law and main arguments are the same as in Case
for compensation in terms of the second paragraph of                       T-74/03 (Intech EMD BV v Commission).
Article 288 of the EC Treaty.


title: Case T-350/14: Order of the General Court of 5 October 2015 — Arvanitis and Others v Parliament and Others (Application for failure to act and for damages — Winding up of Olympiaki Aeroporia (OA) — Harm allegedly suffered by the temporary staff of OA due to the failure of the defendants to ensure the application of EU law upon redundancy — Lack of substantiation of causality between the alleged harm and the conduct of the defendants — Inadmissibility)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/56

         Order of the General Court of 5 October 2015 — Arvanitis and Others v Parliament and Others
   (Case T-350/14) (1)

   ((Application for failure to act and for damages - Winding up of Olympiaki Aeroporia (OA) - Harm allegedly suffered by the temporary staff of OA due to the failure of the defendants to ensure the application of EU law upon redundancy - Lack of substantiation of causality between the alleged harm and the conduct of the defendants - Inadmissibility))
   (2015/C 389/64)
   Language of the case: Greek

      Parties

      Applicants: Athanasios Arvanitis (Rhodes, Greece) and the 47 other applicants whose names are indicated in the annex to the order (represented by: C. Papadimitriou, lawyer)

      Defendants: European Parliament (represented by: L. Visaggio and A. Troupiotis, acting as Agents); European Council; Eurogroup; Council of the European Union (represented by: A. de Gregorio Merino and M. Balta, acting as Agents); European Commission (represented by: J. P. Keppenne and M. Konstantinidis, acting as Agents); and European Central Bank (ECB) (represented by: P. Papapaschalis and P. Senkovic, acting as Agents)

      Re:

   Application for (i) a declaration that the defendants unlawfully failed to act by not ensuring that certain rules of EU law were correctly applied when the applicants were made redundant and (ii) for damages for the harm allegedly suffered by the applicants as a result of that failure to act and of the adoption of measures by the Greek authorities pursuant to certain decisions of the Commission, the Eurogroup and the European Central Bank.

      Operative part of the order

   The Court:

               1.

               Dismisses the action.

               2.

               Orders Athanasios Arvanitis and the 47 other applicants whose names are indicated in the annex to the present order to pay the costs of the proceedings.

      (1)  OJ C 439, 8.12.2014.


title: Case C-406/08: Judgment of the Court (Third Chamber) of 28 January 2010 (Reference for a preliminary ruling from the High Court of Justice (Queen’s Bench Division) — United Kingdom) — Uniplex (UK) Ltd v NHS Business Services Authority (Directive 89/665/EEC — Procedures for review of the award of public contracts — Period within which proceedings must be brought — Date from which the period for bringing proceedings starts to run)

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/11

         Judgment of the Court (Third Chamber) of 28 January 2010 (Reference for a preliminary ruling from the High Court of Justice (Queen’s Bench Division) — United Kingdom) — Uniplex (UK) Ltd v NHS Business Services Authority
   (Case C-406/08) (1)

   (Directive 89/665/EEC - Procedures for review of the award of public contracts - Period within which proceedings must be brought - Date from which the period for bringing proceedings starts to run)
   2010/C 63/16
   Language of the case: English

      Referring court

   High Court of Justice (Queen’s Bench Division)

      Parties to the main proceedings

      Applicant: Uniplex (UK) Ltd

      Defendant: NHS Business Services Authority

      Re:

   Reference for a preliminary ruling — High Court of Justice (Queen’s Bench Division) — Interpretation of Articles 1 and 2 of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33) — National legislation providing for a period of three months in which to apply for review — Date from which time begins to run — Date on which the Community provisions relating to the award of public contracts were infringed or date on which the complainant became aware of that infringement

      Operative part of the judgment

               1.

               Article 1(1) of Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts, as amended by Council Directive 92/50/EEC of 18 June 1992, requires that the period for bringing proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules should start to run from the date on which the claimant knew, or ought to have known, of that infringement.

               2.

               Article 1(1) of Directive 89/665, as amended by Directive 92/50, precludes a national provision, such as that at issue in the main proceedings, which allows a national court to dismiss, as being out of time, proceedings seeking to have an infringement of the public procurement rules established or to obtain damages for the infringement of those rules on the basis of the criterion, appraised in a discretionary manner, that such proceedings must be brought promptly.

               3.

               Directive 89/665, as amended by Directive 92/50, requires the national court, by virtue of the discretion conferred on it, to extend the limitation period in such a manner as to ensure that the claimant has a period equivalent to that which it would have had if the period provided for by the applicable national legislation had run from the date on which the claimant knew, or ought to have known, of the infringement of the public procurement rules. If the national provisions do not lend themselves to an interpretation which accords with Directive 89/665, as amended by Directive 92/50, the national court must refrain from applying them, in order to apply Community law fully and to protect the rights conferred thereby on individuals.

      (1)  OJ C 301, 22.11.2008.


title: Case T-342/99: Action brought on 2 December 1999 by Airtours PLC against the Commission of the European Communities

text:
18.3.2000             EN                     Official Journal of the European Communities                                      C 79/31
Action brought on 1 December 1999 by Arne Mathisen                          in essence transfer prices between related companies.
       AS against the Council of the European Union                         Moreover, it acted in good faith and did not intend to
                                                                            mislead the Commission.
                         (Case T-340/99)
                                                                        — The principle of proportionality has been breached. The
                                                                            regulation was not absolutely necessary to protect the
                          (2000/C 79/68)                                    Community market since the applicant discontinued the
                                                                            contested business practice.
                  (Language of the case: English)                       — It was entitled to compensation payments under
                                                                            Article 288 EC since the regulation was unlawful and it
An action against the Council of the European Union was                     incurred economic loss by being commercially excluded
brought before the Court of First Instance of the European                  from taking part in the salmon-export trade with the EC.
Communities on 1 December 1999 by Arne Mathisen AS,
represented by Sigurd Knudtzon, with an address for service
in Luxembourg at the Chambers of Bonn, Schmitt & Steichen,
7 Val Ste-Croix.
The applicant claims that the Court should:
— annul, in so far as it relates to the applicant, Council
    Regulation (EC) No 1895/1999 of 27 August 1999                      Action brought on 2 December 1999 by Airtours PLC
    amending Regulation (EC) No 722/1999 imposing defini-                 against the Commission of the European Communities
    tive anti-dumping and countervailing duties on imports of
    farmed Atlantic salmon originating in Norway;
                                                                                (Case T-342/99)
— award the applicant compensation to be paid by the
    Council on the basis of the commercial losses incurred as                                    (2000/C 79/69)
    a consequence of the said Council regulation;
— interest at a rate of 12 % annually on such amounts as are                               (Language of the case: English)
    found to be due;
— order the Council to pay the costs of this proceeding.                An action against the Commission of the European Communi-
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 2 December 1999 by Airtours PLC,
Pleas in law and main arguments                                         represented by John Swift, QC, Rupert Anderson, Malcolm
                                                                        Nicholson, Jacqueline Holland and Andrea Gomes da Silva,
                                                                        with an address for service in Luxembourg at the Chambers of
The applicant is a Norwegian fish trading company, that, with           Elvinger Hoss & Prussen, 2 Place Winston Churchill, L-2014.
other Norwegian exporters, signed an undertaking not to sell
Norwegian salmon in the Community below a specified
minimum price and to report the quarterly sale of salmon to             The applicant claims that the Court should:
the Commission. Moreover, it undertook not to circumvent the
undertaking by compensatory arrangements with customers in              — declare the Commission Decision of 22 September 1999
the Community or by misleading declarations or reports.                     relating to the notification of a concentration pursuant to
Following allegations that the applicant had sent hypothetical              Council Regulation (EEC) No 4064/89 in Case
sales reports, and misled the Commission as to its true function            No. IV/M.1524 — Airtours/First Choice void and annul it
and its capability of respecting the undertaking, the Council               in its entirety;
adopted the contested regulation.
                                                                        — order the Commission to pay Airtours’ costs.
In support of its case, the applicant puts forward the following
pleas in law:
                                                                        Pleas in law and main arguments
— Its business practice was not in breach of the undertaking
    since the undertaking did not cover triangular trading
    arrangements before it was amended in December 1998.                The contested decision prohibits the proposed merger between
                                                                        Airtours and First Choice Holidays PLC on the ground that the
— The business practice did not constitute a circumvention              concentration would lead to a situation of collective domi-
    of the undertaking. The applicant rejects the assertion that        nance in the UK short-haul foreign package holiday market.
    the prices and money-flows between its trading partners,            The collectively dominant firms would be the merged Air-
    that formed the basis of the applicant’s reports to the             tours/First Choice entity, and two other tour operators,
    Commission, were only of notional character and were                Thomson Travel Group PLC and Thomas Cook Group Limited.
 ---pagebreak--- C 79/32                 EN                  Official Journal of the European Communities                                     18.3.2000
The applicant claims that the Court should annul the contested         (c) Defects of reasoning
decision on the following grounds:
                                                                           The Commission has infringed Article 253 EC by giving in
                                                                           the Decision inadequate reasons in two principal areas:
(a) Misapplication of Council Regulation (EEC) No 4064/89 (the
    ‘ECMR’), in particular in respect of the finding of collective         — There are certain important elements of argument and
    dominance                                                                   evidence adduced by the applicant which have been
                                                                                ignored by the Commission in its Decision. By ignoring
    It is common ground between the applicant and the                           them, the Commission fails to give adequate reasons
    Commission that the ECMR prohibits the creation or                          for its Decision.
    strengthening of a collective dominant position within
    a relevant product and geographic market within the                    — In certain key areas of the Decision, the reasoning of
    Community. The relevant test is whether as a result of the                  the Commission is logically defective.
    creation or strengthening of a dominant position effective
    competition would be significantly impeded.                        (d) Breach of the principle of legal certainty
                                                                           The Commission has infringed the principle of legal
    In the application of that test the overriding principle is to         certainly in that it has departed from its own previous
    establish, using a prospective analysis of the relevant                decisional case-law and the case-law of the European Court
    market, whether effective competition would be signifi-                of Justice and the Court of First Instance, particularly in its
    cantly impeded by the undertakings involved in the                     approach in establishing and applying a test for collective
    concentration and one or more other undertakings which                 dominance which rests on ‘incentives’ and ‘rational’
    together, in particular because of factors giving rise to a            actions, but without the need for tacit collusion.
    connection between them, are able to adopt a common
    policy on the market and act to a considerable extent
    independently of their competitors, their customers and
    ultimately of consumers.
    The ability to adopt a common policy involves tacit
    collusion between the undertakings concerned. Tacit col-
    lusion means some form of coordination to identify,                Action brought on 1 December 1999 by Hans-Werner
    achieve and sustain such a common policy. Coordination             Schmidt against the Commission of the European Com-
    itself involves what is known as a punishment mechanism                                          munities
    to deter any deviation from the common policy.
                                                                                (Case T-343/99)
    In carrying out its prospective analysis of the conduct
    of the three alleged oligopolists the Commission has                                         (2000/C 79/70)
    misapplied the ECMR in the following ways:
                                                                                (Language of the case: French)
    — It has not based its case on tacit collusion; it has
         replaced that essential and stringent requirement with
                                                                       An action against the Commission of the European Communi-
         a lesser test founded on ‘unilateral’ effects, consisting
                                                                       ties was brought before the Court of First Instance of the
         of what are described as incentives and rational
                                                                       European Communities on 1 December 1999 by Hans-Werner
         behaviour to achieve, in the present case, a reduction
                                                                       Schmidt, residing at Konz (Federal Republic of Germany),
         in capacity and prices above competitive levels. That
                                                                       represented by Georges Vandersanden and Laure Levi, of the
         falls short of the necessary test which requires the
                                                                       Brussels Bar, with an address for service in Luxembourg at the
         Commission to establish more, namely the coordi-
                                                                       offices of the Société de la Gestion Fiduciaire, 2-4 Rue Beck.
         nation and the common policy referred above.
                                                                       The applicant claims that the Court should:
    — Tacit collusion, just as active collusion, requires a
         punishment mechanism to be effective. The Com-                — annul the implicit decision rejecting the application made
         mission wrongly claims that this essential requirement            by the applicant on 5 October 1998 by which he sought
         is not necessary.                                                 (i) the confirmation of the appointing authority that it
                                                                           would close the disciplinary proceedings brought against
(b) Manifest errors of appreciation                                        him by adopting the decision referred to in the third
                                                                           paragraph of Article 7 of Annex IX to the Staff Regulations
                                                                           of officials of the EC on the basis of the reasoned opinion
    The Commission has committed manifest errors of                        of the Disciplinary Board dated 16 July 1997, (ii) an award
    appreciation of the facts relating to the market and the               of damages provisionally fixed, on an equitable basis, in
    conduct of undertakings within this market, resulting in a             the sum of LFR 500 000 and (iii) the immediate and
    failure to comply with the requisite legal standard and thus           definitive cessation of any investigation carried out by the
    in an error of law.                                                    appointing authority without the applicant’s knowledge;


title: Case C-49/05 P: Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/16

         Appeal brought on 7 February 2005 (fax 2 February 2005) by Ferriere Nord SpA against the judgment delivered on 18 November 2004 by the Court of First Instance (Fourth Chamber, Extended Composition) in Case T-176/01 between Ferriere Nord SpA, supported by the Italian Republic, and the Commission of the European Communities
   (Case C-49/05 P)
   (2005/C 82/34)
   Language of the case: Italian
   An appeal against the judgment of the Court of First Instance of the European Communities (Fourth Chamber, Extended Composition) of 18 November 2004 in Case T-176/01 between Ferriere Nord, supported by the Italian Republic, and the Commission of the European Communities was brought before the Court of Justice of the European Communities on 7 February 2005 by Ferriere Nord SpA, represented by W. Viscardini and G. Donà, avvocati.
   The applicant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance of the European Communities in Case T-276/01;

               —

               annul, through a declaration of inapplicability under Article 241 EC of point 82 of the ‘Community guidelines on State aid for environmental protection’ of 2001, Commission Decision 2001/829/EC, ECSC of 28 March 2001 (1), in which the aid of the autonomous Region of Friuli-Venezia Giulia in favour of Ferriere Nord SpA for environmental investment in a new production plant for electrowelded wire mesh was considered incompatible with the common market;

               —

               order, pursuant to Article 235 and the second paragraph of Article 288 EC, the Commission of the European Communities to pay compensation for harm suffered by Ferriere Nord SpA owing to the unlawfulness of the abovementioned decision and the delay with which the aid unlawfully denied will actually be granted to Ferriere Nord SpA, together with interest and an amount to take account of monetary revaluation;

               —

               order the Commission to pay the applicant's costs and legal fees, both at first instance and in these proceedings.

         Pleas in law and main arguments:
   The applicant claims that the Court of First Instance erred in:

               —

               its description of the legal basis of the notification of the contested aid and therefore did not consider that the initiation of the formal examination procedure of 3 June 1999 was unlawful;

               —

               considering that the procedural time limits for opening and closing the formal examination procedure had been observed;

               —

               finding that there had been no infringement of the rights of the ‘parties concerned’, even though those parties had not been able to submit observations in the light of the 2001 guidelines on State aid for environmental protection (which had come into force in the meantime and on which the Commission based its final measure in the formal examination procedure), while all the preparatory enquiries had been conducted on the basis of the ‘Community guidelines on State aid for environmental protection’ (2) of 1994;

               —

               finding that the Commission had not infringed the legitimate procedural expectations of Ferriere Nord, even though it had based its decision on certain documents which were not submitted by Ferriere Nord only because they had never been requested by the Commission itself;

               —

               holding that the aid granted to Ferriere Nord did not constitute a measure implementing a system already approved in 1992;

               —

               interpreting point 82 of the 2001 guidelines cited above so as to give them unlawful retroactive application, instead of treating that point as void ab initio;

               —

               finding that the investment for which Ferriere Nord was granted aid had no environmental purpose;

               —

               failing to apply the burden of proof which requires that the Commission, not the undertaking, isolate from the total cost of the investment the cost corresponding to environmental protection.

      (1)  OJ L 310 of 28.11.2001, p. 22.

      (2)  OJ C 72 of 10.03.1994, p. 3.


title: Judgment of the Court (Sixth Chamber) of 22 January 2004 In Joined Cases C-133/02 and C-134/02 (Reference for a preliminary ruling from the Gerechtshof te Amsterdam): Timmermans Transport & Logistics BV, formerly Timmermans Diessen BV, v Inspecteur der Belastingdienst — Douanedistrict Roosendaal, and Hoogenboom Production Ltd and Inspecteur der Belastingdienst — Douanedistrict Rotterdam (Classification of goods for customs tariff purposes — Binding tariff information — Conditions for the revocation of an information)

text:
C 85/8                     EN                        Official Journal of the European Union                                              3.4.2004
                    JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                             (Sixth Chamber)                                                           (Sixth Chamber)
                           of 22 January 2004                                                        of 12 February 2004
In Joined Cases C-133/02 and C-134/02 (Reference for a                       in Case C-230/02 (Reference for a preliminary ruling
preliminary ruling from the Gerechtshof te Amsterdam):                       from the Bundesvergabeamt): Grossmann Air Service,
Timmermans Transport & Logistics BV, formerly Tim-                           Bedarfsluftfahrtunternehmen GmbH & Co. KG v Repub-
mermans Diessen BV, v Inspecteur der Belastingdienst —                                                 lik Österreich (1)
Douanedistrict Roosendaal, and Hoogenboom Production
Ltd and Inspecteur der Belastingdienst — Douanedistrict                      (Public procurement — Directive 89/665/EEC — Review
                               Rotterdam (1)                                 procedures for the award of public contracts — Articles 1(3)
                                                                             and 2(1)(b) — Persons to whom review procedures must be
(Classification of goods for customs tariff purposes —                       available — Definition of ‘interest in obtaining a public
Binding tariff information — Conditions for the revocation                                                  contract’)
                            of an information)
                                                                                (2004/C 85/11)
                              (2004/C 85/10)
                                                                                (Language of the case: German)
                       (Language of the case: Dutch)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                      in the European Court Reports)
                                                                             In Case C-230/02: Reference to the Court under Article 234
                                                                             EC by the Bundesvergabeamt (Austria) for a preliminary
In Joined Cases C-133/02 and C-134/02: Reference to the                      ruling in the proceedings pending before that court between
Court under Article 234 EC by the Gerechtshof te Amsterdam                   Grossmann Air Service, Bedarfsluftfahrtunternehmen GmbH
(Netherlands) for a preliminary ruling in the proceedings                    & Co. KG and Republik Österreich, on the interpretation of
pending before that court between Timmermans Transport &                     Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
Logistics BV, formerly Timmermans Diessen BV, and Inspecte-                  21 December 1989 on the coordination of the laws, regu-
ur der Belastingdienst — Douanedistrict Roosendaal, and                      lations and administrative provisions relating to the application
between Hoogenboom Production Ltd and Inspecteur der                         of review procedures to the award of public supply and public
Belastingdienst — Douanedistrict Rotterdam, on the interpret-                works contracts (OJ 1989 L 395, p. 33), as amended by
ation of Article 9(1) and 12(5)(a)(iii) of Council Regulation                Council Directive 92/50/EEC of 18 June 1992 relating to the
(EEC) No 2913/92 of 12 October 1992 establishing the                         coordination of procedures for the award of public service
Community Customs Code (OJ 1992 L 302, p. 1), as amended                     contracts (OJ 1992 L 209, p. 1), the Court (Sixth Chamber),
by Regulation (EC) No 82/97 of the European Parliament and                   composed of: V. Skouris, acting as President of the Sixth
of the Council of 19 December 1996 (OJ 1997 L 17, p. 1, and                  Chamber, C. Gulmann, J. N. Cunha Rodrigues, J.-P. Puissochet
Corrigendum, OJ 1997 L 179, p. 11), the Court (Sixth                         and R. Schintgen (Rapporteur), Judges; L.A. Geelhoed, Advo-
Chamber), composed of: C. Gulmann (Rapporteur), acting for                   cate General; M.-F. Contet, Principal Administrator, for the
the President of the Sixth Chamber, J. N. Cunha Rodrigues, J.-               Registrar, has given a judgment on 12 February 2004, in
P. Puissochet, R. Schintgen and F. Macken, Judges; P. Léger,                 which it has ruled:
Advocate General; H. von Holstein, Deputy Registrar, has
given a judgment on 22 January 2004, in which it has ruled:
                                                                             1.    Articles 1(3) and 2(1)(b) of Council Directive 89/665/EEC of
                                                                                21 December 1989 on the coordination of the laws, regulations
Article 9(1) read in conjunction with Article 12(5)(a)(iii) of Council             and administrative provisions relating to the application of
Regulation (EEC) No 2913/92 of 12 October 1992 establishing                        review procedures to the award of public supply and public
the Community Customs Code, as amended by Regulation (EC)                          works contracts, as amended by Council Directive 92/50/EEC
No 82/97 of the European Parliament and of the Council of                          of 18 June 1992 relating to the coordination of procedures for
19 December 1996, must be interpreted as meaning that they                         the award of public service contracts, must be interpreted as not
provide the customs authorities with a legal basis for withdrawing a               precluding a person from being regarded, once a public contract
binding tariff information where those authorities change the                      has been awarded, as having lost his right of access to the
interpretation given therein of the legal provisions applicable to the             review procedures provided for by the Directive if he did not
tariff classification of the goods concerned.                                      participate in the award procedure for that contract on the
                                                                                ground that he was not in a position to supply all the services
                                                                                for which bids were invited, because there were allegedly
(1) OJ C 144 of 15.6.2002.                                                         discriminatory specifications in the documents relating to the
                                                                                invitation to tender, but he did not seek review of those
                                                                                specifications before the contract was awarded.


title: Case T-141/05: Judgment of the Court of First Instance (First Chamber) of 5 June 2008 — Internationaler Hilfsfonds v Commission (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — Partial refusal — Non-actionable measure — Merely confirmatory measure — Inadmissibility)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/19

         Judgment of the Court of First Instance (First Chamber) of 5 June 2008 — Internationaler Hilfsfonds v Commission
   (Case T-141/05) (1)

   (Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - Partial refusal - Non-actionable measure - Merely confirmatory measure - Inadmissibility)
   (2008/C 183/38)
   Language of the case: German
   Parties

      Applicant: Internationaler Hilfsfonds eV (Rosbach, Germany) (represented by: H. Kaltenecker, lawyer)

      Defendant: Commission of the European Communities (represented by: P. Costa de Oliveira, S. Fries and C. Ladenburger, Agents)
   Re:
   Application for annulment of the so-called decision contained in the letter of the Commission of 14 February 2005 refusing the applicant access to certain documents from the file regarding the contract LIEN 97-2011.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders Internationaler Hilfsfonds to pay its own costs and those of the Commission.

      (1)  OJ C 143 of 11.6.2005.


title: Judgment of the Court of 23 May 2000 in Case C-104/98 (reference for a preliminary ruling from the Oberster Gerichtshof): Johann Buchner and Others v Sozialversicherungsanstalt der Bauern (Directive 79/7/EEC — Equal treatment for men and women in matters of social security — Early old-age pension on account of incapacity for work — Pensionable age different according to sex)

text:
12.8.2000               EN                       Official Journal of the European Communities                                              C 233/7
voor het Bedrijfsleven (Netherlands) for a preliminary ruling in            Bellanger and C. Bergeot) — application for a declaration that,
the proceedings pending before that court between KVS                       by failing within the prescribed period to adopt, alternatively
International BV and Minister van Landbouw, Natuurbeheer                    to communicate to the Commission, the laws, regulations and
en Visserij — on the interpretation of Article 3 of Council                 administrative measures necessary in order to comply with
Directive 88/407/EEC of 14 June 1988 laying down the animal                 Council Directive 94/33/EC of 22 June 1994 on the protection
health requirements applicable to intra-Community trade in                  of young people at work (OJ 1994 L 216 p. 12), the French
and imports of deep-frozen semen of domestic animals of the                 Republic has failed to fulfil its obligations under the EC Treaty
bovine species (OJ 1988 L 194, p. 10) and paragraph 1(b) of                 and under that directive — the Court (Fourth Chamber),
Chapter I of Annex B to the same directive, both in its original            composed of: D.A.O. Edward, President of the Chamber,
version and as amended by Council Directive 93/60/EEC of                    P.J.G. Kapteyn (Rapporteur) and H. Ragnemalm, Judges; A. Sag-
30 June 1993 amending Directive 88/407/EEC and extending                    gio, Advocate General; R. Grass, Registrar, has given a judg-
it to cover fresh bovine semen (OJ 1993 L 186, p. 28), and the              ment on 18 May 2000, in which it:
validity of the latter directive — the Court (Fifth Chamber),
composed of: L. Sevón (Rapporteur), President of the First                 1.    Declares that, by failing to adopt, within the prescribed period,
Chamber, acting for the President of the Fifth Chamber,                           the laws, regulations and administrative measures necessary in
P.J.G. Kapteyn, P. Jann, H. Ragnemalm and M. Wathelet,                            order to comply with Council Directive 94/33/EC of 22 June
Judges; A. Saggio, Advocate General; L. Hewlett, Administrator,                   1994 on the protection of young people at work, the French
for the Registrar, has given a judgment on 18 May 2000, in                        Republic has failed to fulfil its obligations under the EC Treaty
which it has ruled:                                                               and under that directive;
Article 3(b) of Council Directive 88/407/EEC of 14 June 1988                2.    Orders the French Republic to pay the costs.
laying down the animal health requirements applicable to intra-
Community trade in and imports of deep-frozen semen of domestic
                                                                            (1) OJ C 100 of 10.4.1999.
animals of the bovine species, read in conjunction with paragraph 1(b)
of Chapter 1 of Annex B to that directive, in its original version and
as amended by Council Directive 93/60/EEC of 30 June 1993
amending Directive 88/407/EEC and extending it to cover fresh
bovine semen, must be interpreted as meaning that semen from a
bull which, before its admission to an approved semen collection
centre, belonged to a herd which was not officially brucellosis free is
precluded from intra-Community trade, if only on account of the                              JUDGMENT OF THE COURT
change in the health status of the herd in the period during which the
animal was kept in that herd.                                                                         of 23 May 2000
(1) OJ C 312 of 10.10.1998.                                                 in Case C-104/98 (reference for a preliminary ruling from
                                                                            the Oberster Gerichtshof): Johann Buchner and Others v
                                                                                Sozialversicherungsanstalt der Bauern (1)
                                                                            (Directive 79/7/EEC — Equal treatment for men and women
                                                                            in matters of social security — Early old-age pension on
                 JUDGMENT OF THE COURT                                      account of incapacity for work — Pensionable age different
                                                                                according to sex)
                        (Fourth Chamber)
                                                                                (2000/C 233/14)
                          of 18 May 2000
in Case C-45/99: Commission of the European Communi-                                           (Language of the case: German)
                    ties v French Republic (1)
                                                                            (Provisional translation; the definitive translation will be published
(Failure to fulfil obligations — Failure to transpose Directive                                in the European Court Reports)
                             94/33/EC)
                                                                            In Case C-104/98: reference to the Court under Article 177 of
                          (2000/C 233/13)
                                                                            the EC Treaty (now Article 234 EC) from the Oberster
                                                                            Gerichtshof (Austria) for a preliminary ruling in the proce-
                    (Language of the case: French)                          edings pending before that court between Johann Buchner and
                                                                            Others and Sozialversicherungsanstalt der Bauern — on the
                                                                            interpretation of Article 7 of Council Directive 79/7/EEC of
(Provisional translation; the definitive translation will be published      19 December 1978 on the progressive implementation of the
                   in the European Court Reports)                           principle of equal treatment for men and women in matters of
                                                                            social security (OJ 1979 L 6, p. 24) — the Court, composed
In Case C-45/99: Commission of the European Communities                     of: G.C. Rodrı́guez Iglesias, President, D.A.O. Edward and
(Agent: D. Gouloussis) v French Republic (Agents: K. Rispal-                L. Sevón, (Presidents of Chambers), P.J.G. Kapteyn, C. Gul-
 ---pagebreak--- C 233/8                  EN                     Official Journal of the European Communities                                     12.8.2000
mann, J.-P. Puissochet, G. Hirsch, P. Jann and H. Ragnemalm                the Court, composed of: G.C. Rodrı́guez Iglesias, President,
(Rapporteur), Judges; S. Alber, Advocate General; L. Hewlett,              D.A.O. Edward, L. Sevón and R. Schintgen (Rapporteur) (Presi-
Administrator, for the Registrar, has given a judgment on                  dents of Chambers), P.J.G. Kapteyn, C. Gulmann, J.-P. Puisso-
23 May 2000, in which it has ruled:                                        chet, G. Hirsch, P. Jann, H. Ragnemalm and M. Wathelet,
                                                                           Judges; D. Ruiz-Jarabo Colomer, Advocate General; H. von
The derogation for which Article 7(1) (a) of Council Directive             Holstein, Deputy Registrar, has given a judgment on 23 May
79/7/EEC of 19 December 1978 on the progressive implementation             2000, in which it:
of the principle of equal treatment for men and women in matters of
social security provides must be interpreted as not applying to a          1.   Dismisses the appeal;
benefit such as the early old-age pension on account of incapacity for
work for which a qualifying age which differs according to sex was
introduced into national legislation after expiry of the period            2.   Orders the works council of SFP, Syndicat National de
prescribed for transposition of that directive.                                 Radiodiffusion et de Télévision CGT, Syndicat Unifié de Radio
                                                                                et de Télévision CFDT, Syndicat National Force Ouvrière de
                                                                                Radiodiffusion et de Télévision and Syndicat National de
(1) OJ C 209 of 4.7.1998.                                                       l’Encadrement Audiovisuel CFE-CGC to pay the costs.
                                                                           (1) OJ C 209 of 4.7.1998.
                  JUDGMENT OF THE COURT
                           of 23 May 2000
in Case C-106/98 P: Comité d’entreprise de la Société
française de production and Others v Commission of the
                    European Communities (1)
                                                                                JUDGMENT OF THE COURT
(Appeal — Natural and legal persons — Directly and
individually concerned by the measure — State aid —                                                of 23 May 2000
Decision declaring aid incompatible with the common market
              — Trade unions and works councils)
                                                                           in Case C-196/98 (reference for a preliminary ruling
                                                                           from the Social Security Commissioner): Regina Virginia
                           (2000/C 233/15)
                                                                           Hepple and Others v Adjudication Officer, Adjudication
                                                                                Officer v Anna Stec and Others (1)
                     (Language of the case: French)
                                                                           (Directive 79/7/EEC — Equal treatment for men and women
                                                                           in matters of social security — Benefits under an accident
(Provisional translation; the definitive translation will be published
                                                                           at work and occupational disease insurance scheme —
                    in the European Court Reports)
                                                                                Introduction of a link to retirement age)
In Case C-106/98 P: Comité d’entreprise de la Société française
de production, having its registered office in Bry-sur-Marne                                       (2000/C 233/16)
(France), Syndicat national de radiodiffusion et de télévision
CGT (SNRT-CGT), having its registered office in Paris, Syndicat
unifié de radio et de télévision CFDT (SURT-CFDT), having its                                 (Language of the case: English)
registered office in Paris, Syndicat national Force ouvrière de
radiodiffusion et de télévision, having its registered office in
Paris, Syndicat national de l’encadrement audiovisuel CFE-                 In Case C-196/98: reference to the Court under Article 177 of
CGC (SNEA-CFE-CGC), having its registered office in Paris,                 the EC Treaty (now Article 234 EC) from the Social Security
represented by H. Masse-Dessen, lawyer with right of audience              Commissioner, United Kingdom, for a preliminary ruling in
before the French Conseil d’État and Cour de Cassation, with              the proceedings pending before that court between Regina
an address for service in Luxembourg at the Chambers of                    Virginia Hepple and Others v Adjudication Officer, Adjudica-
G. Thomas, 77, Boulevard Grande-Duchesse Charlotte —                       tion Officer v Anna Stec and Others — on the interpretation of
appeal against the judgment of the Court of First Instance of              Article 7(1)(a) of Council Directive 79/7/EEC of 19 December
the European Communities (Second Chamber) of 18 February                   1978 on the progressive implementation of the principle of
1998 in Case T-189/97 Comité d’Entreprise de la Société                    equal treatment for men and women in matters of social
Française de Production and Others v Commission [1998]                     security (OJ 1979 L 6, p. 24) — the Court, composed
ECR II-335, seeking to have that order set aside — the other               of: G.C. Rodrı́guez, President, D.A.O. Edward and L. Sevón,
party to the proceedings being: Commission of the European                 Presidents of Chamber, P.J.G. Kapteyn, C. Gulmann, J.-P. Puis-
Communities (Agents: G. Rozet and D. Triantafyllou) —                      sochet, G. Hirsch, P. Jann and H. Ragnemalm (Rapporteur),


title: Case C-383/04: Action brought on 6 September 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/24

         Action brought on 6 September 2004 by the Commission of the European Communities against the Grand Duchy of Luxembourg
   (Case C-383/04)
   (2004/C 262/45)
   An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Communities on 6 September 2004 by the Commission of the European Communities, represented by A. Bordes, acting as Agent, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               Declare that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/105/EC of 22 December 1999 on the marketing of forest reproductive material (1) and, in any event, by failing to notify such provisions to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive.

               2.

               Order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments:
   The period for the transposition of the directive into national law expired on 1 January 2003.

      (1)  OJ L 11 of 15.1.2000, p. 17.


title: Case C-462/11: Reference for a preliminary ruling from the Tribunalul Dâmbovița — Secția civilă (Romania) lodged on 5 September 2011 — Victor Cozman v Teatrul Municipal Târgoviște

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/12

         Reference for a preliminary ruling from the Tribunalul Dâmbovița — Secția civilă (Romania) lodged on 5 September 2011 — Victor Cozman v Teatrul Municipal Târgoviște
   (Case C-462/11)
   2011/C 331/21
   Language of the case: Romanian

      Referring court

   Tribunalul Dâmbovița

      Parties to the main proceedings

      Applicant: Victor Cozman

      Defendant: Teatrul Municipal Târgoviște

      Questions referred

               1.

               Must Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms be interpreted as allowing the salaries of staff paid from public funds to be reduced by 25 %, pursuant to Article 1(1) of Law No 118/2010 laying down certain measures necessary to restore budgetary balance?

               2.

               If the answer is in the affirmative, is entitlement to salary an absolute right which the State may not make subject to any limitations?


title: Case C-457/15: Judgment of the Court (Sixth Chamber) of 28 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Vattenfall Europe Generation AG v Bundesrepublik Deutschland (Reference for a preliminary ruling — Scheme for greenhouse gas emission allowance trading within the European Union — Directive 2003/87/EC — Temporal scope — Time when the emissions trading obligation arises — Article 3 — Annexe I — Concept of ‘installation’ — Combustion of fuels in installations with a total rated thermal input exceeding 20 MW)

text:
               26.9.2016

               EN

               Official Journal of the European Union

               C 350/13

         Judgment of the Court (Sixth Chamber) of 28 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Berlin — Germany) — Vattenfall Europe Generation AG v Bundesrepublik Deutschland
   (Case C-457/15) (1)

   ((Reference for a preliminary ruling - Scheme for greenhouse gas emission allowance trading within the European Union - Directive 2003/87/EC - Temporal scope - Time when the emissions trading obligation arises - Article 3 - Annexe I - Concept of ‘installation’ - Combustion of fuels in installations with a total rated thermal input exceeding 20 MW))
   (2016/C 350/16)
   Language of the case: German

      Referring court

   Verwaltungsgericht Berlin

      Parties to the main proceedings

      Applicant: Vattenfall Europe Generation AG

      Defendant: Bundesrepublik Deutschland

      Operative part of the judgment

   In so far as Annex I to Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC, as amended by Directive 2009/29/EC of the European Parliament and of the Council of 23 April 2009 includes the ‘combustion of fuels in installations with a total rated thermal input exceeding 20 MW’ in the list of categories of activities to which that directive applies, it must be interpreted as meaning that the emissions trading obligation of an installation for the generation of electricity starts on the date of the first emissions of greenhouse gases, and thus potentially before the date of the first generation of electricity.

      (1)  OJ C 398, 30.11.2015.


title: Case T-22/05: Action brought on 11 January 2005 by Antonello Violetti and Others against Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/37

         Action brought on 11 January 2005 by Antonello Violetti and Others against Commission of the European Communities
   (Case T-22/05)
   (2005/C 82/67)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 11 January 2005 by Antonello Violetti, residing in Cittiglio (Italy), and 12 other officials, represented by E. Boigelot, lawyer.
   The applicants claim that the Court should:

               1.

               order the production of all the files concerning the applicants and sealed by the European Anti-Fraud Office (OLAF);

               2.

               order the production of the report which concludes the internal investigation into the applicants;

               3.

               annul the investigation into the applicants;

               4.

               annul the Note from OLAF containing the notification of the investigation and the information of the Italian judicial authorities;

               5.

               annul the report of the investigation sent to the Italian judicial authorities;

               6.

               annul all measures which may be taken subsequently to the bringing of this action following and/or relating to those decisions;

               7.

               order the Commission to pay damages and interest, assessed on an equitable basis at EUR 30 000 for each applicant, subject to increase and/or decrease in the course of the proceedings;

               8.

               in any event, order the defendant to pay the costs.

         Pleas in law and main arguments
   OLAF notified the applicants that an internal investigation had been opened concerning the application of the accident insurance scheme. Following that notification, the officials concerned applied for access to their medical files. That access was refused them.
   The plea in law alleges infringement of Article 73 of the Staff Regulations, Article 28 of the Conditions of employment of other servants, infringement of the Rules on the insurance of officials of the European Communities against the risk of accident and of occupational disease, disregard of the general principles of law, such as the principle of sound administration and the principle of equal treatment, and disregard of the duty to have regard for the welfare of officials and of the principles which require OLAF and the Commission to adopt decisions only on the basis of lawful grounds, that is to say grounds which are relevant and not vitiated by a manifest error of assessment.
   The applicants submit also that Regulation 1073/1999 (1) and Commission Decision 1999/396/EC of 2 June 1999 (2) are illegal and, as a result, plead their illegality within the meaning of Article 241 of the EC Treaty.

      (1)  Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May 1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).

      (2)  Commission Decision 1999/396/EC, ECSC, Euratom of 2 June 1999 concerning the terms and conditions for internal investigations in relation to the prevention of fraud, corruption and any illegal activity detrimental to the Communities' interests (OJ 1999 L 149, p. 57).


title: Case T-275/05: Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/56

         Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-275/05)
   (2005/C 217/115)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 20 July 2005 by The Black & Decker Corporation, established in Towson, Maryland (USA), represented by P. Harris, Solicitor.
   Atlas Copco Aktiebolag established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the contested decision of the First Board of Appeal of the OHIM of 3 May 2005 (Case R 789/2004-1);

               —

               declare opposition proceedings B622 136 inadmissible;

               —

               order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant

               Community trade mark concerned:

               Colour mark in black and yellow in Class 7 (manually operated portable electric power tools etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               Atlas Copco Aktiebolag

               Trade mark or sign cited in opposition:

               Non-registered trade marks and signs, used in the course of trade in all Member States for power tools

               Decision of the Opposition Division:

               Rejects opposition as inadmissible

               Decision of the Board of Appeal:

               Annuls the contested decision and remits the case to the Opposition Division for further prosecution

               Pleas in law:

               The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No. 2868/1995 (1).

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995, p. 1


title: Case T-713/16: Action brought on 7 October 2016 — Fair deal for expats and Others v Commission

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/20

         Action brought on 7 October 2016 — Fair deal for expats and Others v Commission
   (Case T-713/16)
   (2016/C 428/23)
   Language of the case: English

      Parties

      Applicants: Fair deal for expats (Lauzun, France) and 8 others (represented by: R. Croft, L. Nelson, E. Hazzan, Solicitors, P. Green, H. Warwick and M. Gregoire, Barristers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the instruction of the president of the Commission of the European Union communicated electronically by letter dated 28 June 2016 to the Members of the College of Commissioners of the EU, and identified in a speech by President Juncker to the plenary session of the European Parliament in Brussels on 28 June 2016 (SPEECH/16/2356), forbidding any negotiations by the Commission, formal or informal, with the UK government before its notification of withdrawal from the EU under Article 50 TEU, on the one hand, and, the statement of the President of the Commission of the European Union that he had given the instruction above to the Members of the College of Commissioners of the EU by way of ‘Presidential order’, as he expressly stated in that speech to the plenary session of the European Parliament in Brussels on 28 June 2016 and as recorded on both the English and French language Commission Press Releases of that speech (SPEECH/16/2353), on the other hand, void pursuant to Article 264(1) TFEU; and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the disputed measures have no, or no proper, legal basis.
               The applicants put forward that:

                           —

                           there is no legal basis upon which the Commission may refuse to enter into discussions with the government of the United Kingdom and others following the outcome of the non-binding referendum pending any notice under Article 50 TEU;

                           —

                           the basis of the disputed measures does not rest upon objective factors, and, it is reasonably to be inferred, rests upon the convictions of their author;

                           —

                           the disputed measures were adopted in a manner that was a misuse of powers because their announcement in the speech as ‘presidential order’ was misleading to the European Parliament, staff and officials of the Commission and other EU institutions, governments of the Member States, and citizens of the EU.

               2.

               Second plea in law, alleging that the disputed measures discriminate against the UK and its citizens on the grounds of nationality contrary to Article 18 TFEU.
               The applicants put forward that:

                           —

                           the substance of the disputed measures are to prohibit the Commission from negotiating with representatives of the United Kingdom government;

                           —

                           the UK, its citizens, and the applicants in particular, are placed at a substantial disadvantage thereby;

                           —

                           the disputed measures further place the applicants at a disadvantage in their enjoyment of fundamental rights, including free movement.

               3.

               Third plea in law, alleging that the disputed measures are contrary to the applicants’ fundamental rights in EU law.
               The applicants put forward that:

                           —

                           the disputed measures are contrary to the applicants’ rights deriving from Art. 20(1) TFEU, including rights of free movement guaranteed by inter alia Art. 20(2)(a), 21(1), 45 and 49 TFEU and the Citizens Rights Directive 2004/38/EC (1);

                           —

                           the disputed measures are contrary to the applicants’ rights guaranteed by the Charter of Fundamental Rights.

               4.

               Fourth plea in law, alleging that the disputed measures have been adopted contrary to the principle of sincere co-operation under Article 4(3) TEU.
               The applicants put forward that the disputed measures expressly forbid the Commission and its staff from complying with the principle of sincere co-operation by giving assistance to the UK and other EU Institutions in carrying out tasks which flow from the Treaties.

               5.

               Fifth plea in law, alleging that, to the extent the disputed measures have been adopted wholly or partly to deter or discourage the citizens of other EU Member States from the free expression of their opinions (regarding membership of the EU) as protected by Article 11 of the Charter of Fundamental Rights, they are unlawful.

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (Text with EEA relevance) (OJ L 158, p. 77).


title: Case C-3/15: Order of the President of the Court of 8 July 2015 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Alexandra Stück v Swiss International Air Lines AG

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/24

         Order of the President of the Court of 8 July 2015 (request for a preliminary ruling from the Amtsgericht Hannover — Germany) — Alexandra Stück v Swiss International Air Lines AG
   (Case C-3/15) (1)

   (2015/C 398/33)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 118, 13.4.2015.


title: Case T-241/14 P: Judgment of the General Court of 26 February 2016 — Bodson and Others v EIB (Appeal — Civil service — EIB staff — Contractual nature of the employment relationship — Remuneration — Reform of the EIB rewards scheme — Obligation to state reasons — Distortion — Errors of law)

text:
               4.4.2016

               EN

               Official Journal of the European Union

               C 118/25

         Judgment of the General Court of 26 February 2016 — Bodson and Others v EIB
   (Case T-241/14 P) (1)

   ((Appeal - Civil service - EIB staff - Contractual nature of the employment relationship - Remuneration - Reform of the EIB rewards scheme - Obligation to state reasons - Distortion - Errors of law))
   (2016/C 118/26)
   Language of the case: French

      Parties

      Appellants: Jean-Pierre Bodson (Luxembourg, Luxembourg), Dalila Bundy (Cosnes-et-Romain, France), Didier Dulieu (Roussy-le-Village, France), Marie-Christel Heger (Nospelt, Luxembourg), Evangelos Kourgias (Senningerberg, Luxembourg), Manuel Sutil (Luxembourg), Patrick Vanhoudt (Gonderange, Luxembourg) and Henry von Blumenthal (Bergem, Luxembourg) (represented by: L. Levi, lawyer)

      Other party to the proceedings: European Investment Bank (represented by: C. Gómez de la Cruz, T. Gilliams and G. Nuvoli, acting as Agents, and by P.-E. Partsch, lawyer)

      Re:

   Appeal brought against the judgment of the European Union Civil Service Tribunal (Third Chamber) of 12 February 2014 in Bodson and Others v EIB (F-83/12, ECR-SC, EU:F:2014:15) seeking annulment of that judgment.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Mr Bodson and the other applicants whose names are listed in the Annex to bear their own costs and those incurred by the European Investment Bank (EIB) in the present proceedings.

      (1)  OJ C 223, 14.7.2014.


title: Case T-299/08: Judgment of the General Court of 17 May 2011 — Elf Aquitaine v Commission (Competition — Agreements, decisions and concerted practices — Market in sodium chlorate — Decision finding an infringement of Article 81 EC and Article 53 EEA — Imputability of the infringement — Rights of the defence — Obligation to state reasons — Principle that penalties must fit the offence — Principle that penalties must have a proper legal basis — Presumption of innocence — Principle of sound administration — Principle of legal certainty — Misuse of powers — Fines — Aggravating circumstance — Deterrence — Mitigating circumstance — Cooperation during the administrative procedure — Significant added value)

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/19

         Judgment of the General Court of 17 May 2011 — Elf Aquitaine v Commission
   (Case T-299/08) (1)

   (Competition - Agreements, decisions and concerted practices - Market in sodium chlorate - Decision finding an infringement of Article 81 EC and Article 53 EEA - Imputability of the infringement - Rights of the defence - Obligation to state reasons - Principle that penalties must fit the offence - Principle that penalties must have a proper legal basis - Presumption of innocence - Principle of sound administration - Principle of legal certainty - Misuse of powers - Fines - Aggravating circumstance - Deterrence - Mitigating circumstance - Cooperation during the administrative procedure - Significant added value)
   2011/C 186/35
   Language of the case: French

      Parties

      Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery and S. Thibault-Liger, lawyers)

      Defendant: European Commission (represented by: X. Lewis, É. Gippini Fournier and R. Sauer, Agents)

      Re:

   Principally, action for annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81(1) EC and Article 53(1) of the Agreement on the European Economic Area (EEA) (Case COMP/38.695 — Sodium Chlorate), in so far as that decision relates to Elf Aquitaine and, in the alternative, action for annulment or reduction of the amounts of the fines imposed on that company in that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Elf Aquitaine SA to pay the costs.

      (1)  OJ C 272, 25.10.2008.