title: Case C-345/02: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 27 September 2002 in the proceedings between 1. Pearle B.V., 2. Hans Prĳs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and Hoofdbedrĳfschap Ambachten

text:
23.11.2002                EN                   Official Journal of the European Communities                                      C 289/13
The applicant claims that the Court should:                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                          27 September 2002, received at the Court Registry on
—      declare that, when the municipal community of Le Mans              30 September 2002, for a preliminary ruling in the proceed-
       awarded a contract with the purpose of assisting the               ings between 1. Pearle B.V., 2. Hans Prijs Optiek Franchise B.V.,
       person responsible for the Chauvinière sewage treatment            3. Rinck Opticiëns B.V. and Hoofdbedrijfschap Ambachten on
       works to carry out a study into it without previously              the following questions:
       publishing a tender notice in the Official Journal of the
       European Communities, the French Republic failed to
       fulfil its obligations under Directive 92/50/EEC ( 1) and in
       particular Article 15(2) thereof;                                  (1) Is a scheme such as that under consideration, in which
                                                                               levies are imposed to finance collective advertising cam-
                                                                               paigns, to be regarded as (part of a measure of) aid within
—      order the French Republic to pay the costs.
                                                                               the meaning of Article 92(1) of the EC Treaty, and must
                                                                               the plans to implement it be notified to the Commission
                                                                               under Article 93(3) of the EC Treaty? Does that apply
                                                                               only to the benefit derived from the scheme, in the form
Pleas in law and main arguments                                                of the organisation and provision of collective advertising
                                                                               campaigns, or does it also apply to the method of
                                                                               financing it, such as a bye-law instituting levies and/or
                                                                               the decisions imposing levies based thereon? Does it
The Commission takes the view that the tender for the study
                                                                               make any difference whether the collective advertising
into the works which concerned services other than those                       campaigns are offered to (undertakings in) the same
involved in the call for proposals launched by the notice                      business sector as that on which the levy decisions in
published in the Official Journal of the European Communities                  question are imposed? If so, what difference does it make?
on 30 November 1996 should have been published and                             Is it relevant in that connection whether the costs incurred
should have been the subject of a new tender in compliance
                                                                               by the public body are offset in full by the earmarked
with the obligations laid down by Directive 92/50/EEC. The                     levies payable by the undertakings benefiting from the
direct award of that contract to the successful tenderer of the                service, so that the benefit derived costs the public
call for proposals was unauthorised. Nor can it be justified on                authorities, on balance, nothing? Is it relevant in that
the basis of a reference in the notice of 30 November 1996                     connection whether the benefit from the collective adver-
according to which ‘the tenderer whose solution is accepted in
                                                                               tising campaigns is distributed more or less evenly across
the context of the competition for proposals may be invited to                 the field of activity concerned and whether the individual
become involved in the implementation of his idea as part of                   establishments within the branch are also deemed, on
a study intended to ... assist the person responsible for the
                                                                               balance, to have derived a more or less equal benefit or
works’.                                                                        profit from those campaigns?
( 1) Council Directive 92/50/EEC of 18 June 1992 relating to the
     coordination of procedures for the award of public service
     contracts (JO L 209 of 24.7.1992, p. 1).                             (2) Does the obligation to notify under Article 93(3) apply
                                                                               to any aid or only to aid which satisfies the definition in
                                                                               Article 92(1)? In order to avoid its obligation to notify,
                                                                               does a Member State have free discretion to determine
                                                                               whether aid satisfies the definition in Article 92(1)? If so,
                                                                               how much discretion? And to what extent can such
                                                                               free discretion affect the obligation to notify under
                                                                               Article 93(3)? Or is it the case that the obligation to
                                                                               notify ceases to apply only if it is beyond reasonable
                                                                               doubt that no aid is involved?
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 27 September
2002 in the proceedings between 1. Pearle B.V., 2. Hans
Prijs Optiek Franchise B.V., 3. Rinck Opticiëns B.V. and                  (3) If the national court concludes that aid within the
                   Hoofdbedrijfschap Ambachten                                 meaning of Article 92(1) is involved, must it then
                                                                               consider the ‘de minimis’ rule, as formulated by the
                                                                               Commission in a notice published in OJ 1992 C 213 (and
                           (Case C-345/02)
                                                                               subsequently in OJ 1996 C 68), when assessing whether
                                                                               the measure in question is to be regarded as aid which
                           (2002/C 289/22)                                     ought to have been notified to the Commission under
                                                                               Article 93(3)? If so, must that ‘de minimis’ rule also be
                                                                               applied with retroactive effect to aid which was granted
                                                                               before the publication of the rule, and how must that ‘de
                                                                               minimis’ rule be applied to aid such as annual collective
Reference has been made to the Court of Justice of the                         advertising campaigns which benefit an entire branch of
European Communities by judgment of the Hoge Raad                              industry?
 ---pagebreak--- C 289/14                EN                     Official Journal of the European Communities                                    23.11.2002
(4) Does it follow from the grounds of the judgment in Case               The Commission of the European Communities claims that
      C-39/94 SFEI v La Poste [1996] ECR I-3547, for the                  the Court should:
      purposes of the practical effect of Article 93(3), that the
      national court must annul both the bye-laws and the levy
      decisions imposed under those bye-laws and that that                —     declare that, by introducing and maintaining in force a
      court must order the public body to repay the levies,                     system of bonuses and penalties having automatic and
      even if that is precluded by the rule developed in the                    compulsory repercussions on premium rates and apply-
                                                                                ing to all motor insurance contracts concluded on
      Netherlands case-law concerning the formal legal force of
      the levy decisions? Is it relevant in that regard that                    Luxembourg territory by natural persons, without any
      repayment of the levies does not in practice eliminate the                distinction being drawn between insurance companies
                                                                                based in the Grand Duchy of Luxembourg and insurance
      advantage which the field of activity and the individual
      undertakings in the branch obtained through the collec-                   undertakings operating there through a branch or by the
      tive advertising campaigns? Does Community law allow                      provision of services, contrary to the principle of freedom
      repayment of the earmarked levy not to take place, either                 to set premium rates and elimination of prior or system-
      wholly or in part, if, in the opinion of the national court,              atic controls on premium scales and contracts, as estab-
                                                                                lished by Articles 6(3), 29 and 39 of Directive 92/49/
      the field of activity or the individual undertakings would
      be placed at an unfair advantage in connection with the                   EEC (1), the Grand Duchy of Luxembourg has failed to
      circumstance that the advantage obtained as a result of                   fulfil its obligations under that directive;
      the advertising campaigns cannot be returned in kind?
                                                                          —     order the French Republic to pay the costs.
(5) In case of failure to notify an aid as laid down in
      Article 93(3), can a public body rely, in order to avoid an
      obligation to refund the aid, on the abovementioned rule
      of formal legal force of the levy decision if the person to
                                                                          Pleas in law and main arguments
      whom that decision was addressed was not aware, at the
      time of the adoption of that decision and during the
      period within which it could have been challenged in
      administrative proceedings, that the aid of which the levy          The Commission does not deny that it is open to Member
      forms part had not been notified? May an individual                 States to establish a scale taking into account the claims record
      assume in this connection that the authorities have                 of insured persons or even a uniform system of bonuses and
      fulfilled their obligations to notify aid under Article 93(3)       penalties, but it does oppose any scale or system accompanied
      of the EC Treaty?                                                   by tariff elements which has automatic and compulsory
                                                                          repercussions on premium rates, contrary to the principle of
                                                                          freedom to set rates. That is the position with the Luxembourg
                                                                          system as regards policyholders who are natural persons.
                                                                          Whilst the reference premium may be freely fixed by the
                                                                          parties to the contract of insurance, the Luxembourg rules
                                                                          attach to certain events affecting the life of the contract
                                                                          consequences having a compulsory and automatic effect on
                                                                          the amount of the premium rates, with the result that
                                                                          price competition does not come into play as regards the
                                                                          consequences of those events. Similarly, insurers operating on
                                                                          the territory of the Grand Duchy of Luxembourg do not have
Action brought on 30 September 2002 by the Com-                           the right to place the insured person, at the time of entering
mission of the European Communities against the Grand                     into the system, on another level of the scale or to choose
                      Duchy of Luxembourg                                 other methods involving the application of other criteria for
                                                                          reducing or increasing premiums or some other scale reflecting
                                                                          the accidents occurring over the course of a year or over some
                          (Case C-346/02)                                 other period of time.
                          (2002/C 289/23)                                 It is for the Member State imposing the restriction to show
                                                                          that the measure is justified by the public interest, objectively
                                                                          necessary, appropriate and proportionate to the objective
                                                                          pursued, and that it does not needlessly duplicate the rules
                                                                          applying in the Member State where the service provider is
                                                                          established. The Luxembourg Government has not shown this.
An action against the Grand Duchy of Luxembourg was                       In any event, as regards consumer protection, there are other
brought before the Court of Justice of the European Communi-              systems which produce the same result without impinging on
ties on 30 September 2002 by the Commission of the                        rate-setting policy, in particular the organisation of a scheme
European Communities, represented by C. Tufvesson and                     involving the systematic publication of the rate-setting policies
J.-F. Pasquier, acting as Agents, with an address for service in          pursued by the undertakings concerned in accordance with a
Luxembourg.                                                               common scale of accident claims. Moreover, it is not apparent


title: JUDGMENT OF THE COURT (Fifth Chamber) of 14 December 1995 in Case C-16/95: Commission of the European Communities v. Kingdom of Spain (Failure to fulfil obligations not contested - Delay in the refund of VAT to taxable persons not established in the territory of the country)

text:
2. 3 . 96            lENj                  Official Journal of the European Communities                                   No C 64/5
      national courts and. may render inapplicable national                          JUDGMENT OF THE COURT
      rules inconsistent therewith .
                                                                                ( Fifth Chamber)
                                                                                of 14 December 1995
(') OJ No C 218 , 6 . 8 . 1994 .
      OJ No C 304, 29 . 10 . 1994 .                                   in    Case    C- 16/95 : Commission of the European
                                                                                Communities v. Kingdom of Spain ( J )
                                                                      (Failure to fulfil obligations not contested — Delay in the
                                                                      refund of VA T to taxable persons not established in the
                                                                                territory of the country)
                                                                                ( 96/C 64/ 10
               JUDGMENT OF THE COURT                                                  (Language of the case: Spanish)
                     of 14 December 1995
in Case C-267/94: French Republic v. Commission of the
                   European Communities ( 1 )                         (Provisional translation; the definitive translation will be
(Residues of starch manufacture — Corn gluten feed —                           published in the European Court Reports)
                     Customs classification)
                            ( 96/C 64/09 )
                                                                      In Case C-16/95 : Commission of the European
                                                                      Communities ( Agents : Blanca Rodriguez Galindo and
                (Language of the case: French)                        Enrico Traversa ) v. Kingdom of Spain ( Agents : Alberto
                                                                      Navarro Gonzalez and Miguel Bravo-Ferrer Delgado ) —
                                                                      application for a declaration that, by disregarding the
(Provisional translation; the definitive translation will be          six-month time limit for the refund of value added tax to
          published in the European Court Reports)                    taxable persons not established in the territory of the
                                                                      country, in accordance with Article 7 ( 4 ) of the Eighth
                                                                      Council Directive ( 79/1072/EEC ) of 6 December 1979 on
In Case C-267/94 : French Republic ( Agents : Catherine de
                                                                      the harmonization of the laws of the Member States relating
Salins and Jean-Louis Falconi ) v. Commission of the
                                                                      to turnover taxes — arrangements for the refund of value
European Communities ( Agents: Francisco de Sousa Fialho
                                                                      added tax to taxable persons not established in the territory
and Jean-Francis Pasquier ) — application for the annulment
                                                                      of the country ( OJ No L 331 , 1979 , p. 11 ), and by failing to
of Commission Regulation (EC ) No 1641 /94 of 6 July 1994             comply with the duty of cooperation imposed on Member
amending Council Regulation ( EEC ) No 2658/87 on the                 States by Article 5 of the EC Treaty, the Kingdom of Spain
tariff and statistical nomenclature and on the Common
                                                                      has failed to fulfil its obligations under the EC Treaty — the
Customs Tariff ( OJ No L 172, 1994 , p. 12 ) — the Court,
                                                                      Court, composed of: D. A. O. Edward, President of the
composed of: G. C. Rodriguez Iglesias, President, C. N.               Chamber, J. -P. Puissochet, J. C. Moitinho de Almeida, P.
Kakouris and G. Hirsch ( Presidents of Chambers ), G. F.
                                                                      Jann ( Rapporteur) and M. Wathelet, Judges; N. Fennelly,
Mancini, F. A. Schockweiler, P.J. G. Kapteyn ( Rapporteur ),
                                                                      Advocate-General ; R. Grass, Registrar, gave a judgment on
C. Gulmann, J. L. Murray, P. Jann, H. Ragnemalm and L.                14 December 1995 , in which it:
Sevon, Judges; D. Ruiz-Jarabo Colomer, Advocate-General;
H. von Holstein, Deputy Registrar, gave a judgment on
14 December 1995 , in which it:
                                                                      1 . declares that, by disregarding the six-month time limit
                                                                          for the refund of value added to tax to taxable persons
1 . annuls Commission Regulation (EC) No 1641 /94 of                      not established in the territory of the country, the
      6 July 1994 amending Council Regulation (EEC)                       Kingdom of Spain has failed to fulfil its obligations
      No 2658/87 on the tariff and statistical nomenclature               under Article 7 (4) of the Eighth Council Directive
      and on the Common Customs Tariff inasmuch as it                      (79/1072/EEC) of 6 December 1979 on the
      provides that residues from the manufacture of starch               harmonization ofthe laws of the Member States relating
      from maize may contain residues resulting from the                   to turnover taxes — Arrangements for the refund of
      screening of maize used in the wet process in a                      value added tax to taxable persons not established in the
      proportion not exceeding 15% by weight and residues                  territory of the country;
      of steep-water used in the manufacture of alcohol or
      other starch-derived products;
                                                                      2 . orders the Kingdom of Spain to pay the costs.
2 . orders the Commission to pay the costs.
                                                                      (!) OJ No C 54 , 4 . 3 . 1995 .
f 1 ) OJ No C 316 , 12 . 11 . 1994 .


title: Reference for a preliminary ruling from the Verwaltungsgericht, Düsseldorf, by order of that court of 24 September 1996 in the administrative proceedings between Stadt Dormagen and Bezirksregierung Düsseldorf, joined party: Klaus Mäckel (Case C-334/96)

text:
7 . 12 . 96              EN 1                 Official Journal of the European Communities                                 No C 370 / 5
Pleas in law and main arguments adduced in support:                      Concerning freedom of movement for workers and the tax
                                                                         status of Franco-German frontier workers
The period within which the Member States were to
comply with the provisions of the Directive expired on
21 March 1994 . The Commission notes that the Hellenic                   — Whether the principle of freedom of movement for
Republic has still not complied with the Directive .                         workers, as embodied in the Treaty of Rome and the
                                                                             implementing legislation, is contravened by a tax
f 1 ) OJ No L 297, 13 . 10 . 1992, p . 1 .                                   regime, applicable to frontier workers, of the kind
                                                                             provided for by the Franco-German Convention, in so
                                                                             far as the latter lays down taxation arrangements which
                                                                             are different for people whose remuneration is paid by a
                                                                             public entity as compared with those whose
                                                                             remuneration is paid by private persons and as a result
Reference for a preliminary ruling from the                                  is liable to have an impact on access to posts in the
Verwaltungsgericht, Diisseldorf, by order of that court of                   public or private sectors depending on residence in one
24 September 1996 in the administrative proceedings                          State or another,
between Stadt Dormagen and Bezirksregierung Diisseldorf,
                   joined party: Klaus Mackel
                           ( Case C-334/96 )                             — Whether a rule under which a frontier worker receiving
                             ( 96/C 370/11 )                                 remuneration from a State or an agency thereof
                                                                             governed by public law is taxable in that State,
                                                                             whereas, if the frontier worker has the nationality of the
Reference has been made to the Court of Justice of the                       other State but is not at the same time a national of the
European Communities by an order of the First Chamber of                     first State, his remuneration is taxable in the State
the Verwaltungsgericht ( Administrative Court), Diisseldorf,                 where the frontier worker resides is compatible with the
of 24 September 1996, which was received at the Court                        principle of freedom of movement and the abolition of
Registry on 10 October 1996 , for a preliminary ruling in                    all discrimination on grounds of nationality,
the administrative proceedings between Stadt Dormagen
( Town of Dormagen ) and Bezirksregierung Diisseldorf
( Diisseldorf District Administration ), joined party: Klaus             — Whether a tax provision which lays down for frontier
Mackel, on the following question :                                          workers employed by persons governed by public law a
                                                                             tax regime which differs according to whether they are
Is Article 2(1 ) and (4 ) of Council Directive 76/207/EEC of                 nationals only of that State or have dual nationality is
9 February 1976 on the implementation of the principle of                    compatible with Article 7 of the Treaty;
equal treatment for men and women as regards access to
employment, vocational training and promotion, and
working conditions C ) to be interpreted as precluding a rule            Concerning the special tax regime for teachers
of national law under which in areas of activity in the
public sector in which fewer women than men are
employed in the relevant higher post in a career group,                  — Whether the principle of freedom of movement for
where men and women candidates for promotion are                             workers, as embodied in the Treaty, is contravened by
equally qualified ( as regards suitability, competence and                   tax rules which are liable to affect the choice made by
professional performance ) women must be given priority                      teachers in the contracting States as to whether to work
unless reasons specific to a male candidate predominate ?                    on a more or less long-term basis in another State
                                                                             having regard to the differences, based on the duration
(!) OJ No L 39, 14 . 2 . 1976 , p . 40 .                                     of employment, in the tax regimes of the States in
                                                                             question;
                                                                         Concerning the tax credit mechanism introduced by
                                                                         Article 20 of the Franco-German Convention as regards
Reference for a preliminary ruling by the Tribunal                       residents of France
Administratif de Strasbourg, by judgment of that court of
10 October 1996 in the case of Mr and Mrs Robert Gilly
       against Directeur des Services Fiscaux du Bas-Rhin                — Whether the objective of abolishing double taxation
                           ( Case C-336/96 )                                 laid down in Article 220 of the Treaty must be
                                                                             regarded, in view of the time which the Member States
                             ( 96/C 370/ 12 )                                have had to implement it, as now having the status of a
                                                                             directly applicable rule under which double taxation
Reference has been made to the Court of Justice of the                       may no longer take place and whether the objective of
European Communities by judgment of the Tribunal                             avoiding double taxation assigned to the Member States
Administratif ( Administrative Court), Strasbourg, of                        by Article 220 is contravened by a tax convention under
10 October 1996, received at the Court Registry on                           which the tax regime applicable to frontier workers of
11 October 1996 , for a preliminary ruling in the case of Mr                 States party to the convention varies according to their
and Mrs Robert Gilly v. Directeur des Services Fiscaux du                    nationality and the public or private nature of the post
Bas-Rhin ( Director of Taxes for the Bas-Rhin ) on the                       held and whether a tax credit tax regime applicable to a
following questions:                                                         household living in one State which does not take into


               17.2.2005

               EN

               Official Journal of the European Union

               C 40/18

         Action brought on 23 November 2004 by the Bankers' and Securities Dealers' Association of Iceland against the EFTA Surveillance Authority
   (Case E-9/04)
   (2005/C 40/11)
   An action against the EFTA Surveillance Authority was brought before the EFTA Court on 23 November 2004 by the Bankers' and Securities Dealers' Association of Iceland, represented by Dr. Hans-Jörg Niemeyer of Hengeler Mueller, avenue Cortenbergh 1118, B-1000 Brussels and Dr. Ralf Sauer of Hengeler Mueller, Charlottenstraße 35/36, 10117 Berlin, Germany.
   The applicant claims that the Court should:

               1.

               Annul the decision of the EFTA Surveillance Authority of 11 August 2004, Decision 213/04/COL (Icelandic Housing Financing Fund); and

               2.

               Order the EFTA Surveillance Authority to pay the costs of the proceedings.

         Legal and factual background and pleas in law adduced in support:

               —

               The applicant is the business association of all Icelandic commercial banks and acts as their service and clearing bank.

               —

               The Icelandic Housing Financing Fund (‘HFF’) provides general loans to individuals for the purpose of constructing or purchasing residential housing, and additional loans to individuals with low income.

               —

               The applicant claims that the general loans are normal banking services, and that HFF's de facto state monopoly contravenes the freedom to provide services, the right of establishment, and the free movement of capital.

               —

               The EFTA Surveillance Authority's Decision 213/04/COL of 11 August 2004 declared the HFF system to be compatible with the State aid rules according to Article 59(2) EEA.

               —

               The applicant claims that the EFTA Surveillance Authority:

                           —

                           violated its obligation to initiate formal proceedings;

                           —

                           infringed essential procedural requirements by not providing adequate reasons as required by Article 16 SCA; and,

                           —

                           wrongfully interpreted and applied Article 59(2) EEA.


C 173/32              EN                    Official Journal of the European Communities                                 16.6.2001
1.    Is the ban on vaccination imposed by Article 13 of                      Removal from the register of Case C-403/00 (1)
      Directive 85/511/EEC(1) invalid on the ground of incon-
      sistency with Community law, in particular the principle                                (2001/C 173/56)
      of proportionality?
                                                                       By order of 27 March 2001 the President of the Court of
2.    Is the way in which the Commission has applied the               Justice of the European Communities has ordered the removal
      aforesaid Article 13, in particular by the adoption of           from the register of Case C-403/00: Commission of the
      Decision 2001/246/EC (2), as amended by Decision                 European Communities v Republic of France.
      2001/279/EEC (3), invalid on the ground of inconsistency
      with Community law?                                              (1) OJ C 355 of 9.12.2000.
(1) OJ 1985 L 315, p. 11.
(2) OJ 2001 L 88, p. 21.
(3) OJ 2001 L 96, p. 19.
                                                                              Removal from the register of Case C-264/98 (1)
                                                                                (2001/C 173/57)
                                                                       By order of 2 April 2001 the President of the Court of Justice
                                                                       of the European Communities has ordered the removal from
                                                                       the register of Case C-264/98: (reference for a preliminary
                                                                       ruling from the Tribunal de Première Instance de Charleroi):
        Removal from the register of Case C-88/00 (1)                  Tibor Balog v Royal Charleroi Sporting Club ASBL (RCSC).
                         (2001/C 173/55)                               (1) OJ C 278 of 5.9.1998.
By order of 9 March 2001 the President of the Court of Justice
of the European Communities has ordered the removal from
the register of Case C-88/00: (reference for a preliminary ruling
from the Supremo Tribunal Administrativo): Directora-Geral                    Removal from the register of Case C-377/00 (1)
do Departamento para os Assuntos do Fundo Social Europeu
(DAFSE) v MOBILCROMO — Indústria de Mobiliário e                                            (2001/C 173/58)
Revestimentos Metálicos, Ltd.
                                                                       By order of 5 April 2001 the President of the Court of Justice
                                                                       of the European Communities has ordered the removal from
(1) OJ C 149 of 27.05.2000.                                            the register of Case C-377/00: Commission of the European
                                                                       Communities v Grand Duchy of Luxembourg.
                                                                       (1) OJ C 355 of 9.12.2000.


title: Case T-527/09: Action brought on 6 April 2010 — Ayadi v Commission

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/31

         Action brought on 6 April 2010 — Ayadi v Commission
   (Case T-527/09)
   2010/C 148/56
   Language of the case: English

      Parties

      Applicant: Chafiq Ayadi (represented by: H. Miller Solicitor, B. Emmerson and S. Cox, Barristers)

      Defendant: European Commission

      Form of order sought

               —

               annul Commission Regulation No 954/2009, in so far as it applies to the applicant;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In the present case, the applicant seeks the partial annulment of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time Council Regulation (EC) No 881/2002 imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban in so far as the applicant is included on the list of natural and legal persons, entities and bodies whose funds and economic resources are frozen in accordance with this provision.
   The applicant puts forward four pleas in law in support of its claims.
   First, the applicant submits that the Commission misused its power by including the applicant in Annex I to Regulation No 881/2002 without having carefully and impartially examined all the relevant elements of the applicant’s case.
   Second, the applicant claims that the contested regulation was adopted in breach of the applicant’s right to effective judicial review since the regulation lacked of evidential basis and, in consequence, the Court is unable even to begin to exercise its duty of considering that evidence.
   Third, the applicant argues that the contested regulation was adopted in breach of the applicant’s right of defence. He submits that the Commission failed to provide a statement of evidence but only provided the allegations in the Sanctions Committee statement. Without the evidence, the applicant was unable to address the Commission on defects in that evidence or misunderstandings.
   Fourth, he claims that the contested regulation, freezing the applicant’s assets both retrospectively and, for an indefinite period, prospectively, constitutes an unjustified restriction on his fundamental right of property.


title: Case T-649/16: Action brought on 12 September 2016 — Bernaldo de Quirós v Commission

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/57

         Action brought on 12 September 2016 — Bernaldo de Quirós v Commission
   (Case T-649/16)
   (2016/C 402/67)
   Language of the case: French

      Parties

      Applicant: Belén Bernaldo de Quirós (Brussels, Belgium) (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the Appointing Authority, in the person of the Director General of DG ‘Education and Culture’ of the European Commission, of 30 November 2015, on the change of assignment of Ms Bernaldo de Quirós from the post of Head of Unit EAC.C.4 ‘Traineeships Office’ to the post of Adviser on Modernisation of Education DG EAC.B;

               —

               order the European Commission to pay all of the costs.

      Pleas in law and main arguments

   In support of the action, the applicant invokes three pleas in law.

               1.

               First plea in law, alleging a manifest error of assessment and misuse of powers.

                           —

                           The applicant takes the view that the contested decision is vitiated by a manifest error of assessment concerning the interests of the service and concerning equivalence of posts. She seeks to argue that her reassignment to the post of adviser on modernisation of education was motivated not by the interests of the service but by her hierarchical superiors’ desire to isolate her professionally and to impose on her an anticipated disciplinary penalty. The decision is thus vitiated by a misuse of powers in so far as such an assignment is, moreover, contrary to the interests of the service, in view of the applicant’s areas of competence and the need to fill vacant Head of Unit posts within DG EAC.

                           —

                           She also takes the view that the reassignment did not observe the principle of equivalence of posts. The new tasks assigned to the applicant are, by their nature, their importance and their scope, below those conferred on an Adviser in Grade AD 13. Furthermore, the post does not correspond to a genuine need of the service, as required by Article 2 of Decision C(2008) 5029/2.

               2.

               Second plea in law, alleging infringement of the right to be heard and breach of the administration’s duty of care.

                           —

                           The applicant claims that the decision to reassign her was not adopted under conditions ensuring her right to be heard, since she was not placed in a position effectively to make known her views on the draft reassignment decision. In addition, she alleges a breach of the administration’s duty of care, since the Appointing Authority took no account whatsoever of the applicant’s interests and did not seek to achieve objectively a proper balance between the interests of the service and those of the applicant, inter alia by considering an assignment to a vacant Head of Unit post.

               3.

               Third plea in law, alleging infringement of Decision C(2008) 5029/2 of the European Commission of 9 August 2008 concerning the functions of Adviser.

                           —

                           The applicant claims an infringement of Decision C(2008) 5029/2, in its consolidated version of 7 July 2016, since DG EAC exceeded the allocated quota of advisers and failed to prove that the post of adviser on modernisation of education to which the applicant was reassigned is in fact lawful.


title: Order of the Court of 20 October 2000 in Case C-242/99 (reference for a preliminary ruling from the Sozialgericht Augsburg): Johann Vogler v Landwirtschaftliche Alterskasse Schwaben (Article 104(3) of the Rules of Procedure — Social security — Freedom of establishment — Determination of the applicable legislation — Self-employed activities in more than one Member State — Articles 13(1) and 14a(2) of Regulation (EEC) No 1408/71 — Legislation of only one Member State applicable)

text:
7.4.2001                EN                      Official Journal of the European Communities                                              C 108/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                             other, unsubsidised, tenderers, to take part in a procedure for
                                                                                the award of a public service contract does not amount to a
                          (Sixth Chamber)                                          breach of the principle of equal treatment laid down in Council
                                                                                Directive 92/50/EEC of 18 June 1992 relating to the
                       of 7 December 2000                                          coordination of procedures for the award of public service
                                                                                contracts.
in Case C-94/99 (reference for a preliminary ruling from                     2.    The mere fact that a contracting authority allows such bodies to
the Bundesvergabeamt (Austria)): ARGE Gewässerschutz                               take part in a procedure for the award of a public service
  v Bundesministerium für Land- und Forstwirtschaft (1)                            contract does not constitute either covert discrimination or a
                                                                                restriction contrary to Article 59 of the EC Treaty (now, after
(Public service contracts — Directive 92/50/EEC — Pro-                             amendment, Article 49 EC).
cedure for the award of public procurement contracts —
Equal treatment of tenderers — Discrimination on grounds
                                                                             (1) OJ C 160, 5.6.1999.
         of nationality — Freedom to provide services)
                          (2001/C 108/01)
                   (Language of the case: German)
                                                                                ORDER OF THE COURT
(Provisional translation; the definitive translation will be published                               of 20 October 2000
                   in the European Court Reports)
                                                                             in Case C-242/99 (reference for a preliminary ruling from
In Case C-94/99: reference to the Court under Article 177 of                 the Sozialgericht Augsburg): Johann Vogler v Landwirt-
the EC Treaty (now Article 234 EC) from the Bundesverga-                                    schaftliche Alterskasse Schwaben (1)
beamt (Federal Procurement Office), Austria for a preliminary
ruling in the proceedings pending before that court between                  (Article 104(3) of the Rules of Procedure — Social security
ARGE Gewässerschutz and Bundesministerium für Land- und                      — Freedom of establishment — Determination of the
Forstwirtschaft — on the interpretation of Council Directive                 applicable legislation — Self-employed activities in more
92/50/EC of 18 June 1992 relating to the coordination of                     than one Member State — Articles 13(1) and 14a(2) of
procedures for the award of public service contracts (OJ 1992                Regulation (EEC) No 1408/71 — Legislation of only one
L 209, p. 1), and of Article 59 of the EC Treaty (now, after                                      Member State applicable)
amendment, Article 49 EC) — the Court (Sixth Chamber),
composed of: C. Gulmann (Rapporteur), President of the                                                  (2001/C 108/02)
Chamber, J.-P. Puissochet and F. Macken, Judges; P. Léger,
Advocate General; H.A. Rühl, Principal Administrator, for the                                    (Language of the case: German)
Registrar, has given a judgment on 7 December 2000, in
which it has ruled:
                                                                             (Provisional translation: the definitive translation will be published
1.    The mere fact that the contracting authority allows bodies                                 in the European Court Reports)
      receiving subsidies of any kind, whether from that contracting
      authority or from other authorities, which enable them to              In Case C-242/99: reference to the Court under Article 177 of
      submit tenders at prices appreciably lower than those of the           the EC Treaty (now Article 234 EC) from the Sozialgericht
 ---pagebreak--- C 108/2                   EN                       Official Journal of the European Communities                                        7.4.2001
Augsburg (Germany) for a preliminary ruling in the proceed-                   Tribunale Amministrativo Regionale per il Lazio, received at
ings pending before that court between Johann Vogler and                      the Court Registry on 29 December 2000, for a preliminary
Landwirtschaftliche Alterskasse Schwaben, on the validity                     ruling in Case C-480/00 Azienda Agricola Ettore Ribaldi v
and interpretation of Articles 13(1) and 14a(2) and on the                    Azienda di Stato per gli Interventi nel Mercato Agricolo
interpretation of Articles 13(2)(b), 14a(3) and 14c of Regu-                  (AIMA), the other party to the proceedings being Caseificio
lation (EEC) No 1408/71 of the Council of 14 June 1971 on                     Nazionale Novarese s.c.a.r.l.; Case C-490/00 Cesare and Miche-
the application of social security schemes to employed persons,               le Filippi s.s. v AIMA and the Ministry of the Treasury,
to self-employed persons and to members of their families                     the Budget and Planning; Case C-491/00 Cooperativa Latte
moving within the Community, in the version thereof amended                   Associati della Lessinia a.r.l. v AIMA and the Ministry of the
and updated by Council Regulation (EC) No 118/97 of                           Treasury, the Budget and Planning on the following questions:
2 December 1996 (OJ 1997 L 28, p. 1), as amended by
Council Regulation (EC) No 307/1999 of 8 February 1999 (OJ
1999 L 38, p. 1) — the Court, composed of: G.C. Rodrı́guez                    (1) May the provisions contained in Articles 1 and 4 of
Iglesias, President, C. Gulmann, A. La Pergola, M. Wathelet                        Council Regulation (EEC) No 3950/92 (1) of 28 December
                                                                                1992 and Articles 3 and 4 of Commission Regulation
(Rapporteur) and V. Skouris, Presidents of Chambers, D.A.O.
Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen and                     (EEC) No 534/93 (2) of 9 March 1993 be interpreted as
F. Macken, Judges; G. Cosmas, Advocate General; R. Grass,                          meaning that it is possible, in cases of administrative or
                                                                                judicial challenge to the relevant measures, to derogate
Registrar, has made an order on 20 October 2000, the
operative part of which is as follows:                                             from the time-limits prescribed for the allocation of
                                                                                quotas and the operation of adjustments and levies?
Consideration of the first question referred has not disclosed any
factor of such a kind as to affect the validity of Article 13(1) in           If not:
conjunction with Article 14a(2) of Regulation (EEC) No 1408/71
of the Council of 14 June 1971 on the application of social security          (2) Are the provisions contained in Articles 1 and 4 of
schemes to employed persons, to self-employed persons and to                       Council Regulation (EEC) No 3950/92 of 28 December
members of their families moving within the Community, in the                      1992 and Articles 3 and 4 of Commission Regulation
version thereof amended and updated by Council Regulation (EC)                     (EEC) No 534/93 of 9 March 1993 valid, in the light of
No 118/97 of 2 December 1996, as amended by Council Regulation                     Article 33 (ex 39) of the Treaty, in so far as they do not
(EC) No 307/1999 of 8 February 1999. It follows from those                         provide that derogations may be made from the periods
provisions that a person who simultaneously operates, in a self-                   prescribed by those provisions for the allocation of
employed capacity, an agricultural undertaking in Germany and, in                  individual reference quantities, for adjustments and levies
the same capacity, a hotel in Austria, where he resides, is subject only           in cases of administrative or judicial challenge to those
to the social security legislation of the latter State.                            provisions ?
(1) OJ C 246, 28.8.1999.                                                      (3) May Regulations No 3950/92 and 536/93 be interpreted
                                                                                as meaning that the application of the system introduced
                                                                                by that legislation excludes the allocation and official
                                                                                notification of individual reference quantities for pro-
                                                                                ducers or does it exclude the official redistribution among
                                                                                its producers by the Member State of the global quantity
                                                                                which that State is guaranteed?
                                                                              (4) May Articles 3 and 4 of Regulation (EC) No 3950/92 be
Reference for a preliminary ruling by the Tribunale                                interpreted as meaning that no official notification of
Amministrativo Regionale per il Lazio by judgments of                              individual reference quantities need be given to producers,
that court of 6 July 2000 in Case C-480/00 Azienda                                 or does the allocation of an individual reference quantity
Agricola Ettore Ribaldi v Azienda di Stato per gli                                 exclude individual notification to those producers?
Interventi nel Mercato Agricolo (AIMA), the other party
to the proceedings being Caseificio Nazionale Novarese
s.c.a.r.l.; Case C-490/00 Cesare and Michele Filippi s.s. v                   (5) May Article 2(1) of Regulation (EC) No 3950/92 and
AIMA and the Ministry of the Treasury, the Budget and                              Article 3(3) of Regulation (EC) No 563/93 be interpreted
Planning; Case C-491/00 Cooperativa Latte Associati della                          as leaving the Member States free to determine privileged
Lessinia a.r.l. v AIMA and the Ministry of the Treasury,                           categories of producers who must be compensated in
                      the Budget and Planning                                      priority to others?
            (Cases C-480/00, C-490/00 and C-491/00)
                                                                              (1) OJ L 405, 31.12.1992, p. 1.
                            (2001/C 108/03)                                   (2) OJ L 57, 10.3.1993, p. 12.
References have been made to the Court of Justice of the
European Communities by judgments of 6 July 2000 of the


title: Judgment of the Court (Sixth Chamber) of 7 December 2000 in Case C-324/98 (reference for a preliminary ruling from the Bundesvergabeamt): Telaustria Verlags GmbH, Telefonadress GmbH v Telekom Austria AG, formerly Post & Telekom Austria AG (Public service contracts — Directive 92/50/EEC — Public service contracts in the telecommunications sector — Directive 93/38/EEC — Public service concession)

text:
24.3.2001               EN                        Official Journal of the European Communities                                                 C 95/3
1.    Declares that, by failing to bring into force within the prescribed    and telecommunications sectors (OJ 1993 L 199, p. 84) — the
      period the laws, regulations and administrative measures               Court (Sixth Chamber), composed of: V. Skouris (Rapporteur),
      necessary to comply with Article 5 of Directive 97/33/EC of            President of the Second Chamber, acting as President of
      the European Parliament and of the Council of 30 June 1997             the Sixth Chamber, J.-P. Puissochet and F. Macken, Judges;
      on interconnection in Telecommunications with regard to                N. Fennelly, Advocate General; L. Hewlett, Administrator, for
      ensuring universal service and interoperability through appli-         the Registrar, has given a judgment on 7 December 2000, in
      cation of the principles of Open Network Provision (ONP), in           which it has ruled:
      conjunction with Annexes I and III thereto, the Kingdom of
      Belgium has failed to fulfil its obligations under that directive;
                                                                             1.   —      Council Directive 93/38/EEC of 14 June 1993 coordin-
                                                                                ating the procurement procedures of entities operating in
2.    Orders the Kingdom of Belgium to pay the costs.
                                                                                the water, energy, transport and telecommunications
                                                                                sectors covers a contract for pecuniary interest concluded
                                                                                in writing between, on the one hand, an undertaking
(1) JO C 6 of 8.1.2000.                                                                  which is specifically responsible under the legislation of a
                                                                                Member State for operating a telecommunications service
                                                                                and whose capital is wholly held by the public authorities
                                                                                of that State and, on the other, a private undertaking,
                                                                                where under that contract the first undertaking entrusts
                                                                                the second with the production and publication, for the
                                                                                purpose of distribution to the public, of printed and
                                                                                electronically accessible lists of telephone subscribers (tele-
                                                                                phone directories);
                 JUDGMENT OF THE COURT
                                                                                —      although it is covered by Directive 93/38, such a contract
                                                                                is excluded, under Community law as it stands at present,
                          (Sixth Chamber)                                                from the scope of that directive by reason of the fact, in
                                                                                particular, that the consideration provided by the first
                       of 7 December 2000                                                undertaking to the second consists in the second obtaining
                                                                                the right to exploit for payment its own service.
in Case C-324/98 (reference for a preliminary ruling
from the Bundesvergabeamt): Telaustria Verlags GmbH,                         2.   Notwithstanding the fact that, as Community law stands at
Telefonadress GmbH v Telekom Austria AG, formerly                                 present, such contracts are excluded from the scope of Directive
                 Post & Telekom Austria AG (1)                                    93/38, the contracting entities concluding them are, none the
                                                                                less, bound to comply with the fundamental rules of the Treaty,
                                                                                in general, and the principle of non-discrimination on the
(Public service contracts — Directive 92/50/EEC — Public
                                                                                ground of nationality, in particular, that principle implying, in
service contracts in the telecommunications sector — Direc-
                                                                                particular, an obligation of transparency in order to enable the
          tive 93/38/EEC — Public service concession)
                                                                                contracting authority to satisfy itself that the principle has been
                                                                                complied with.
                           (2001/C 95/04)
                                                                             3.   That obligation of transparency which is imposed on the
                                                                                contracting authority consists in ensuring, for the benefit of any
                   (Language of the case: German)                                 potential tenderer, a degree of advertising sufficient to enable
                                                                                the services market to be opened up to competition and the
                                                                                impartiality of procurement procedures to be reviewed.
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                             4.   It is for the national court to rule on the question whether that
                                                                                obligation was complied with in the case in the main proceedings
In Case C-324/98: reference to the Court under Article 177 of                     and also to assess the materiality of the evidence produced to
the EC Treaty (now Article 234 EC) from the Bundesverga-                          that effect.
beamt (Federal Procurement Office), Austria, for a preliminary
ruling in the proceedings pending before that court between
Telaustria Verlags GmbH, Telefonadress GmbH and Telekom
Austria AG, formerly Post & Telekom Austria AG, joined
party; Herold Business Data AG — on the interpretation of                    (1) OJ C 327 of 24.10.1998.
Council Directive 92/50/EEC of 18 June 1992 relating to the
coordination of procedures for the award of public service
contracts (OJ 1992 L 209, p. 1) and of Council Directive
93/38/EEC of 14 June 1993 coordinating the procurement
procedures of entities operating in the water, energy, transport


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 13 July 1995 in Case T-44/93: Monique Saby v. Commission of the European Communities (Officials - Action for damages - Admissibility - Proper conduct of the pre-litigation procedure - Duty to provide assistance - Duty to have regard for the welfare of officials - Principle of the protection of legitimate expectations)

text:
No C 286/ 8           EN                   Official Journal of the European Communities                                  28 . 10 . 95
      Removal from the register of Case C-2 13/94 (M                         Removal from the register of Case C-93/95 (M
                          ( 95/C 286/17)                                                         ( 95/C 286/18 )
By order of 27 July 1995 the President of the Court ofJustice
of the European Communities ordered the removal from the
register of Case C-213/94 : Commission of the European                By order of 21 July 1995 the President of the Court of Justice
                                                                      of the European Communities ordered the removal from the
Communities v. Federal Republic of Germany .
                                                                      register of Case C-93/95 : Commission of the European
                                                                      Communities v. Portuguese Republic .
(') OJ No C 275 , 1 . 10 . 1993 .
                                                                      V ) OJ No C 159 , 24 . 6 . 1995 .
                                                    COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                               JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 13 July 1995                                                       of 13 July 1995
in Case T-44/93 : Monique Saby v. Commission of the                   in Joined Cases T-466/93 , T-469/93 , T-473/93 , T-474/93
                 European Communities (*)                             and T-477/93 : Thomas O'Dwyer and Others v. Council of
(Officials — Action for damages — Admissibility — Proper                                 the European Union ( ] )
conduct of the pre-litigation procedure — Duty to provide             (Common organization of the market in milk and milk
assistance — Duty to have regard for the welfare ofofficials         products — Milk quotas — Additional levy — Reduction of
  — Principle of the protection of legitimate expectations)           reference quantities without compensation — Claim for
                          ( 95/C 286/ 19 )                                                          damages)
                                                                                ( 95/C 286/20 )
               (Language of the case: French)
                                                                                (Language of the case: English)
In Case T-44/93 : Monique Saby, a former official of the
Commission of the European Communities, residing in
Brussels, represented by Mérète Turlin and Aloyse May, of             In Joined Cases T-466/93 , T-469/93 , T-473/93 , T-474/93
the Luxembourg Bar, with an address for service in                    and T-477/93 : Thomas O'Dwyer, Thomas Keane, Thomas
Luxembourg at their Chambers, 31 Grand-Rue,                           Cronin and James Reidy, residing respectively at
Luxembourg, v. Commission of the European Communities                 Drumdowney, Snowhill, Waterford, Ireland; at Corbally,
( Agent : Ana Maria Alves Vieira ) — application, first, for a        Gurtymadden, Loughrea, County Galway, Ireland; at
declaration of misconduct on the part of the Commission               Ardmore, Waterford, Ireland ; and at Carrowreagh, Cooper,
and, second, for compensation for alleged material and                Tubbercurry, County Sligo, Ireland, represented by
non-material damage — the Court of First Instance (Third              Anthony Burke, Solicitor, with an address for service in
Chamber ), composed of J. Biancarelli , President, and C. P.          Luxembourg at the Chambers of Arsène Kronshagen, 12
Briët and C. W. Bellamy, Judges; H. Jung, Registrar, has              Boulevard de la Foire, against Council of the European
given a judgment on 13 July 1995 , in which it:                       Union ( Agents : Arthur Brautigam and Michael Bishop ),
                                                                      supported by Commission of the European Communities
                                                                      ( Agents : Gerard Rozet and Christopher Docksey ) —
                                                                      application, in Cases T-466/93 , T-469/93 , T-473/93 and
1 . dismisses the application;
                                                                      T-474/93 , for reparation of the damage allegedly suffered by
                                                                      the applicants as a result of the application of Council
                                                                      Regulation ( EEC ) No 816/92 of 31 March 1992 amending
2 . orders the parties to bear their own costs.                       Regulation ( EEC ) No 804/68 on the common organization
                                                                      of the market in milk and milk products ( OJ 1992 L 86 ,
                                                                      p. 83 ) and, in Case T-477/93 , for reparation of the damage
(') OJ No C 206 , 30 . 7. 1993 .                                      allegedly suffered by the applicant as a result of the
                                                                      application of Council Regulation ( EEC ) No 748/93 of
                                                                      17 March 1993 amending Regulation ( EEC ) No 3950/92
                                                                      establishing an additional levy in the milk and milk products
                                                                      sector ( OJ 1993 L 77, p. 16 ) — the Court of First Instance


title: Case C-345/01: Action brought on 13 September 2001 by the Commission of the European Communities against the Republic of Austria

text:
C 331/8                EN                     Official Journal of the European Communities                                   24.11.2001
3.1. Is a ‘producer’, within the meaning of Article 3(1) of the               Directive, is ‘essential’, because everything marked with
      Directive, only someone who brings goods into contact                   the ‘Grüner Punkt’ symbol is mixed together and, above
      with the product used as packaging or has them brought                  all, takes away from consumers the right, granted and
      into contact, and not also an undertaking which makes                   guaranteed to consumers by the Sixth VAT Directive, to
      a product intended for use as packaging, and is this                    a VAT rate reduced by half or a lower rate for the disposal
      product then to be regarded as packaging material?                      of their household waste?
                                                                         7.   May the Austrian Packaging Regulation arrange the
                                                                              collection and recovery systems required by Article 7(1)of
                                                                              the Directive in such a way that a monopolist or an
3.2. Additional question, in the event that the preceding
                                                                              oligopolist can have power of disposal over all packaging
      question is answered in the affirmative: May the Austrian
                                                                              waste to be recycled into raw materials and so, by
      legislature or the Commission compel traders who
                                                                              providing subsidies to particular businesses, to particular
      merely make packaging material, that is to say a product
                                                                              branches of industry (for example the cement industry)
      which is intended to be filled with goods, to participate
                                                                              or to certain local authorities (for example, the City of
      in a collection and recovery system set up pursuant to
                                                                              Vienna), can control and subsidise the recycling of
      Article 7(1) of Directive 94/62/EC?
                                                                              waste as it wishes, thereby producing distortions of
                                                                              competition, or is such a system contrary to Community
                                                                              law, in particular Article 30 et. seq. and especially
                                                                              Article 37 EC?
4.   Is it contrary to the ‘polluter pays’ principle referred to in
     the preamble to Directive 94/62/EC for a law to provide,
     as does the first sentence of Paragraph 3(1) of the                 (1) OJ 1994 L 365, p. 10.
     Austrian Verpackungsverordnung (Austrian Packaging
     Regulation), that producers, in particular producers of
     packaging material (see paragraph 3(1) in conjunction
     with paragraph 1(1) of the Austrian Packaging Regu-
     lation), importers, packagers and distributors must take
     back free of charge sales and transport packaging after
     they have been used, in that the group of persons affected
     by this obligation is defined too narrowly and does not             Action brought on 13 September 2001 by the Com-
     include consumers, and/or does such a regulation conflict           mission of the European Communities against the Repub-
     with Article 1(1) of the Directive in so far as it is stated                                  lic of Austria
     there that the Directive’s aim is to avoid obstacles to
     trade, whereas an obligation for a producer to take back                                    (Case C-345/01)
     packaging materials is the greatest imaginable obstacle to
     trade?
                                                                                (2001/C 331/12)
5.   Does a collection and recovery system such as that                  An action against the Republic of Austria was brought
     operated in Austria by Altstoff Recycling Austria Aktien-           before the Court of Justice of the European Communities on
     gesellschaft pursuant to paragraph 11 of the Austrian               13 September 2001 by the Commission of the European
     Packaging Regulation [Or. 3] conflict with the principle            Communities represented by Götz zur Hausen, a legal adviser
     of proportionality if it is disproportionate to the needs of        in the legal Service of the Commission of the European
     effective environmetal protection?                                  Communities, with an address for service in Luxembourg at
                                                                         the office of Luis Escobar Guerrero, a member of the Legal
                                                                         Service of the European Commission, Wagner Centre C 254,
                                                                         Kirchberg, Luxembourg.
6.   Is it contrary to the principles laid down in Article 30 et
     seq., in particular Article 37 EC, for a Member State to set
     up, in implementation of Article 7 of the Directive, as has         The applicant claims that the Court should:
     happened in Austria pursuant to paragraph 11 of the
     Austrian Packaging Regulation, a collection and recovery            1.   Declare that, by failing to adopt the laws, regulations
     system occupying a monopoly position (in Austria,                        and administrative provisions necessary to comply with
     Altstoffrecycling Austria Aktiengesellschaft) so that com-               Council Directive 98/81/EC of 26 October 1998 (1)
     petition and the fundamental freedoms are dispro-                        amending Directive 90/219/EEC (2) on the contained use
     portionately and excessively restricted, this interference is            of genetically modified micro-organisms, or at least by
     out of proportion to any effective contribution towards                  failing to communicate them to the Commission, the
     increasing the level of environmental protection and                     Republic of Austria has failed to fulfil its obligations
     moreover this system, set up in parallel with the munici-                under Article 2(1) of that Directive.
     pal system, is not compatible with the objective of sorting
     waste at source, which, according to the preamble to the            2.   Order the Republic of Austria to pay the costs.
 ---pagebreak--- 24.11.2001            EN                     Official Journal of the European Communities                                      C 331/9
Pleas in law and main arguments                                         Pleas in law and main arguments
                                                                        The pleas in law and main arguments are the same as those in
As a result of the fact that directives are binding in nature           Case C-345/01 (2).
pursuant to the third paragraph of Article 249 EC and the first
paragraph of Article 10 EC, the Member States to which a
directive is addressed are bound to transpose the provisions in         (1) OJ L 330 of 5.12.1998, p. 13.
the directive into domestic law so that they are fully effective        (2) See p. 8 of this Official Journal.
by the time the deadline for transposition expires. That
deadline expired on 5 June 2000 without Austria having
adopted the requisite provisions.
(1) OJ 1998 L 330, p. 13.
(2) OJ 1990 L 117, p. 1.                                                Action brought on 13 September 2001 by the Com-
                                                                        mission of the European Communities against the Federal
                                                                                Republic of Germany
                                                                                (Case C-347/01)
                                                                                (2001/C 331/14)
Action brought on 13 September 2001 by the Com-                         An action against the Federal Republic of Germany was
mission of the European Communities against the Federal                 brought before the Court of Justice of the European Communi-
                     Republic of Germany                                ties on 13 September 2001 by the Commission of the
                                                                        European Communities represented by Götz zur Hausen, a
                                                                        legal adviser in the Legal Service of the Commission of
                         (Case C-346/01)                                the European Communities, with an address for service in
                                                                        Luxembourg at the office of Luis Escobar Guerrero, a member
                                                                        of the Legal Service of the European Commission, Wagner
                         (2001/C 331/13)
                                                                        Centre C 254, Kirchberg, Luxembourg.
                                                                        The applicant claims that the Court should:
An action against the Federal Republic of Germany was                   1.    Declare that, by failing to adopt the laws, regulations
brought before the Court of Justice of the European Communi-                  and administrative provisions necessary to comply with
ties on 13 September 2001 by the Commission of the                            Directive 98/8/EC (1) of the European Parliament and of
European Communities represented by Götz zur Hausen, a                        the Council of 16 February 1998 concerning the placing
legal adviser in the Legal Service of the Commission of                       of biocidal products on the market, or at least by failing
the European Communities, with an address for service in                      to communicate them to the Commission, the Federal
Luxembourg at the office of Luis Escobar Guerrero, a member                   Republic of Germany has failed to fulfil its obligations
of the Legal Service of the European Commission, Wagner                       under Article 34(1) of that directive.
Centre C 254, Kirchberg, Luxembourg.
                                                                        2.    Order the Federal Republic of Germany to pay the costs.
The applicant claims that the Court should:
                                                                        Pleas in law and main arguments
1.    Declare that, by failing to adopt the laws, regulations and
      administrative provisions necessary in order to comply
      with Council Directive 98/81/EEC (1) of 26 October 1998           The pleas in law and main arguments are the same as those in
      amending Directive 90/219/EEC on the contained use of             Case C-345/01 (2): the deadline for transposition expired on
      genetically modified micro-organisms, or at least by              14 May 2000.
      failing to inform the Commission thereof, the Federal
      Republic of Germany has failed to fulfil its obligations
                                                                        (1) OJ L 123 of 24.4.1998, p. 1.
      under Article 2(1) of that Directive.
                                                                        (2) See p. 8 of this Official Journal.
2.    Order the Federal Republic of Germany to pay the costs.


title: Case C-187/09: Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland

text:
               18.7.2009

               EN

               Official Journal of the European Union

               C 167/7

         Action brought on 26 May 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-187/09)
   2009/C 167/13
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: O. Beynet, S. Walker, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland

      The applicant claims that the Court should:

               —

               Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Directive 2006/40/EC (1) of the European Parliament and of the Council of 17 May 2006 relating to emissions from air-conditioning systems in motor vehicles and amending Council Directive 70/156/EEC, or in any event, by failing to communicate them all to the Commission, the United Kingdom of Great Britain and Northern Ireland failed to fulfil its obligations under this Directive and under the Treaty;

               —

               order United Kingdom of Great Britain and Northern Ireland to pay the costs.

      Pleas in law and main arguments

   The period within which the Directive had to be transposed expired on 4 January 2008.

      (1)  OJ L 161, p. 12


title: Case T-144/03: Action brought on 28 April 2003 by Nadine Schmit against the Commission of the European Communities

text:
19.7.2003              EN                        Official Journal of the European Union                                        C 171/33
European Communities on 14 April 2003 by Sniace, S.A.,                         the conditions offered by Caja Cantabria against offers
whose registered office is in Madrid, represented by José Luis                 received from other private credit institutions and their
Baró Fuentes, lawyer.                                                          adherence to the guidelines laid down by the Commission
                                                                               in its Notice to the Member States of 13 November
                                                                               1993, lead to the conclusion that the loan with profit
                                                                               participation was granted under market conditions.
The applicant claims that the Court should:
                                                                         3.    Infringement of the principles of legal expectations and
—     annul Article 1 of the Decision of 11 December 2002 in                   proportionality. The applicant claims in this regard, first,
      so far as it states Spain has granted aid to Sniace, S.A.                that the lawfulness of the general system in Spain
      amounting to EUR 7 388 258;                                              concerning the granting of loans with profit participation
                                                                               to undertakings undergoing rationalisation, conformity
                                                                               with the formal requirements laid down by the Director
—     in the alternative, maintain Article 1 of the Decision of                de Ayudas de Estado (Director for State aid) (namely:
      11 December 2002 in so far as it finds that the State aid                documentary evidence that the loan was granted under
      is compatible with the common market;                                    market conditions), and the assurances provided by him
                                                                               that no further action would be taken, gave rise to a
                                                                               legitimate expectation on the part of the applicant that
—     order the defendant to pay the costs.                                    the administrative procedure would be concluded either
                                                                               by a decision that no further investigations would ensue
                                                                               or by a finding that the loan could not be considered to
                                                                               be State aid. Secondly, the applicant is of the view that
                                                                               the duration of the investigation (58 months) and the
Pleas in law and main arguments                                                means invested by the Commission in enquiring into a
                                                                               commercial transaction that was not at all technically
                                                                               complicated go beyond the limits of what is normally
                                                                               appropriate or necessary in this kind of operation.
The applicant company in these proceedings objects to the
description as ‘aid granted by a Member State or through State
                                                                         4.    Finally, the applicant undertaking alleges breach of its
resources’ of a contract for a subordinated convertible loan
                                                                               rights of defence and, in particular, of professional
with profit participation, amounting to EUR 12 020 242,                        secrecy as protected by Article 287 EC inasmuch as the
entered into with Caja Cantabria, together with a liquidity
                                                                               Commission forwarded, at the first request, the replies
agreement, which provided for the conversion into equity of
                                                                               of the Spanish authorities (including the applicant’s
credits under the loan.                                                        comments) to the lawyers for the undertaking whose
                                                                               complaint had given rise to the investigation.
In support of its claims, the applicant relies on the following
pleas in law and main arguments:
1.    Misinterpretation of the concept of ‘aid granted by a
      Member State or through State resources’ laid down in
      Article 87(1) EC. First, the applicant disputes that the
      Commission has established in its final decision that the          Action brought on 28 April 2003 by Nadine Schmit
      funds used by Caja Cantabria to finance the loan with                against the Commission of the European Communities
      profit participation made to Sniace were ‘State resources’.
      It points out, in that regard, that Caja Cantabria is a
      private credit institution and thus governed by private                                    (Case T-144/03)
      law. Its funds are not State resources but are private funds
      provided by private individuals and undertakings. In the
      present case, Caja Cantabria acted as a private investor                                   (2003/C 171/57)
      which invests its capital by reference to relatively short-
      term profitability. Secondly, the applicant states that the
      decision to finance Sniace was a strictly commercial                                  (Language of the case: French)
      decision adopted in accordance with criteria relating to
      operational profitability and that the public authorities
      played no part in the technical or commercial decision to
      grant the loan.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
2.    Manifest error of assessment in the application of the rule        European Communities on 28 April 2003 by Nadine Schmit,
      of ‘private investor in a market economy’. According               residing in Ispra (Italy), represented by Pierre-Paul Van
      to the applicant, a detailed analysis of the conditions            Gehuchten and Pierre Jadoul, lawyers, with an address for
      governing the loan, together with a comparison of                  service in Luxembourg.
 ---pagebreak--- C 171/34               EN                          Official Journal of the European Union                                         19.7.2003
The applicant claims that the Court should:                                The applicants claim that the Court should:
—     annul the explicit rejection of the Commission of 11 July
      2002 BSS01 MS CDL/GS/MSG D (02) No 6779 in reply                     —     annul the Commission Decision of 11 December 2002
      to the request registered under No D/256/02 submitted                      which found that measures to support agricultural coop-
      by the applicant pursuant to Article 90(1) of the Staff                    eratives, by virtue of which only such cooperatives are
      Regulations;                                                               able to distribute unlimited amounts of fuel to non-
                                                                                member third parties whilst enjoying preferential tax
—     annul, in so far as necessary, the refusal to register the                 treatment and which are contained in Royal Decree
      applicant’s fresh complaint;                                               Law 10/2000 of 6 October on emergency support for
                                                                                agriculture, fisheries and transport do not constitute State
                                                                                aid within the meaning of Article 87(1) EC;
—     order the Commission to pay the entire costs.
                                                                           —     order the European Commission to pay the costs.
Pleas in law and main arguments
The applicant is an official working for the defendant. She is
bringing her action against the rejection of a request concern-
ing the inclusion of certain documents in her personnel file               Pleas in law and main arguments
and to be informed of alleged written defamatory statements
made in her regard. In support of her action, she alleges breach
of the protection of dignity and equality between men and
women at work, enshrined in Article 31 of the Charter of
Fundamental Rights of the European Union, as a result of the               The applicants in the present action, who have also brought
fact that the defendant failed to take the necessary measures to           Case T-95/03 (Asociación de Empresarios de Estaciones de
ensure the protection of the applicant against the alleged                 Servicio de la Comunidad Autónoma de Madrid and the
denigration by other officials of the defendant institution,               Federación Catalana de Estaciones de Servicio) ( 1), are challeng-
which amounts, in her view, to harassment. She also alleges                ing the Commission’s refusal to regard as State aid the
infringement of Articles 25, 26 and 45 of the Staff Regulations,           measures in Royal Decree Law 10/2000, which allow only
of the obligation to provide reasons and of the rights of                  agricultural cooperatives, and not other cooperatives which
defence.                                                                   also benefit from special protection, to sell B diesel to non-
                                                                           member third parties without being subject to any limit
                                                                           and without losing the tax advantages granted to specially
                                                                           protected cooperatives. The contested decision concludes that
                                                                           the measures at issue do not constitute State aid, since they are
                                                                           justified by the nature or general scheme of the tax system.
Action brought on 15 April 2003 by the Asociación de
Empresarios de Estaciones de Servicio de la Comunidad                      In support of their claims, the applicants maintain that the
Autónoma de Madrid and the Federación Catalana de                          defendant has made various errors of fact and law:
Estaciones de Servicio against the Commission of the
                     European Communities
                                                                           —     in exempting the Spanish Government from its duty to
                                                                                provide an explanation for the measures at issue on the
                         (Case T-146/03)                                         basis of the nature of the tax system. The contested
                                                                                decision is at odds with the arguments put forward by
                         (2003/C 171/58)                                         the Government (need for further liberalisation in the fuel
                                                                                sector as a structural measure responding to the increase
                                                                                in the price of crude oil and the depreciation of the euro
                   (Language of the case: Spanish)                               against the dollar).
                                                                           —     in concluding that Royal Decree Law 10/2000 is consist-
An action against the Commission of the European Communi-                        ent with the nature of the tax system and in basing that
ties was brought before the Court of First Instance of the                       finding on an incomplete and incorrect analysis of the
European Communities on 15 April 2003 by the Asociación                          tax system applicable to cooperatives.
de Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de Estacion-
es de Servicio, established in Madrid and Barcelona respectively,          —     in finding that the contested measures do not constitute
represented by Raimundo Ortega Bueno, lawyer.                                    State aid.