Official Journal C 117/2007

26.5.2007

Official Journal of the European Union

C 117/2

Appeal brought on 12 February 2007 by Franco Campoli against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 29 November 2006 in Case T-135/05 Campoli v Commission

(Case C-71/07 P)

(2007/C 117/02)

Language of the case: French

Parties

Appellant: (represented by G. Vandersanden, L. Levi and S. Rodrigues, lawyers)

Other parties to the proceedings: Commission of the European Communities (represented by V. Joris and D. Martin, Agents), Council of the European Union (represented by M. Arpio and I. Šulce, Agents)

Form of order sought

—	annul the judgment of the Court of First Instance of the European Communities of 29 November 2006 in Case T-135/05;

—

consequently, grant the applicant the benefit of the forms of order that he sought at first instance, amended in the light of the inadmissibility of the applicant's claim regarding household allowance and education allowance and therefore,

—

annul the decision of the Appointing Authority of 13 December 2004 dismissing his complaint, along with, first, the decision of the Appointing Authority contested in the complaint, which amended from 1 May 2004 the weighting applicable to his pension, and, second, his payslips inasmuch as they apply that decision from May 2004.

—	order the defendant to pay the costs.

—	order the defendant to pay the costs at first instance and on appeal.

Pleas in law and main arguments

The applicant relies on a number of arguments in support of his single plea in law, alleging infringement of the principle of equal treatment and failure to observe the obligation, binding on the Community judicature, to state reasons.

The principle was allegedly disregarded, first, in that the Court of First Instance found that the legislature was entitled to amend the Staff Regulations by establishing less favourable conditions than those under the system then in force, on condition that it provide for a sufficiently long transitional period. The existence of a transitional period and the examination of whether it was of sufficient duration are factors falling outside the scope of the examination of the lawfulness of a new measure in the light of the principle of equal treatment, observance of which requires verification by the court of the absence of any arbitrary or manifestly inappropriate difference in treatment contrary to the object pursued by the Community legislature. In the present case, the judgment under appeal allegedly neither defined the object pursued by the new rules concerning the setting of the weighting nor, a fortiori, assessed whether there was any arbitrary or manifestly inappropriate difference in treatment in relation to that object. The applicant adds that setting the weighting at the average level of the cost of living of a country undermines both the objective of maintaining the purchasing power of pensioners and that of guaranteeing their freedom of movement and residence, since pensioners living in the capital of a country, or in another of its expensive towns or regions, would have lesser purchasing power than pensioners who have established their residence outside that capital or those towns or regions.

By his second submission, the applicant maintains that, contrary to the findings of the judgment under appeal, the new pension scheme effectively provides for a link to the cost of living in Brussels, so that the income of pensioners living in Belgium is set by taking into account solely the cost of living in the capital of that Member State, whilst the income of pensioners living in the capitals of other Member States is actually determined by a weighting which takes into account the average cost of living in the entire country. The applicant challenges, moreover, the finding of the Court of First Instance that the lawfulness of a Community legislative act cannot depend on the way in which it is applied in practice, since the measures implementing such an act are closely linked to the act itself, and relies on a breach of the rights of the defence and of the principle of the equality of the parties before the Community judicature, inasmuch as he knew of the measures implementing the new pension scheme only after the close of the written procedure.

By his final submission, the applicant challenges the Court of First Instance's finding that he had no legal interest in bringing proceedings pursuant to Article 241 EC by referring to the advantage conferred on pensioners living in a ‘less expensive ’Member State. In complaining of the different treatment reserved for pensioners living in a ‘less expensive ’Member State as compared with pensioners living in an ‘expensive ’Member State, he is attacking the breach of the principle of equality of purchasing power and aiming, thereby, to call into question the pension scheme resulting from the new Staff Regulations and its transitional measures.

26.5.2007

Official Journal of the European Union

C 117/3

Reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy) lodged on 13 February 2007 — Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della regione Sicilia, Regione Sicilia v Domenico Valvo

(Case C-78/07)

(2007/C 117/03)

Language of the case: Italian

Referring court

Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy)

Parties to the main proceedings

Appellants: Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della regione Sicilia, Regione Sicilia

Respondent: Domenico Valvo

Question referred

May a farmer be refused the compensatory allowance provided for by Regulation (EEC) No 2328/91 (as amended by Regulation No 3669/93) and by Regulation (EC) No 950/97 (1) on improving the efficiency of agricultural structures when he also receives a pension, in particular, a years-of-service pension?

(1) OJ 1997 L 142, p. 1.

26.5.2007

Official Journal of the European Union

C 117/3

Reference for a preliminary ruling from the Arbeitsgericht Bonn (Germany) lodged on 20 February 2007 — Dr Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V.

(Case C-94/07)

(2007/C 117/04)

Language of the case: German

Referring court

Arbeitsgericht Bonn

Parties to the main proceedings

Applicant: Dr Andrea Raccanelli

Defendant: Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V.

Questions referred

Should the applicant be regarded as a worker within the meaning of the European concept of ‘worker ’if he is not called upon to provide any more work-related services than are doctoral students with an employment contract concluded pursuant to the Bundesangestelltentarifvertrag (federal collective agreement for public sector workers, ‘BAT/2’)?

In the event that the answer to Question 1 is in the negative: must Article 7 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community (1) be interpreted as meaning that there is no discrimination only if the applicant was at least granted the right to choose between an employment contract and a grant before his period of doctoral study with the defendant began?

3.	In the event that the answer to Question 2 is that the applicant should have been granted the opportunity to conclude an employment contract, the question must be asked: What are the consequences in law in the event of discrimination against foreign nationals?

(1) OJ English Special Edition 1968 (II), p. 475.

26.5.2007

Official Journal of the European Union

C 117/4

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Genova (Italy) lodged on 20 February 2007 — Ecotrade SpA v Agenzia Entrate Ufficio Genoa 3

(Case C-95/07)

(2007/C 117/05)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Genova

Parties to the main proceedings

Applicant: Ecotrade SpA

Defendant: Agenzia Entrate Ufficio Genoa 3

Questions referred

Does a correct interpretation of Articles 17, 21(1) and 22 of the Sixth Council Directive 77/388/EEC (1) of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes preclude national legislation (in particular Article 19 of DPR 633 of 26/10/72) that makes the exercise of the right to deduct value added tax, payable by a taxable person in the pursuit of his business activities, dependent on compliance with a (two-year) time limit and penalises non-compliance with annulment of that right? That question is asked with reference, in particular, to cases where the liability to VAT on the purchase of the goods or service stems from the application of the reverse charge procedure, which allows the authorities a longer period (of four years under Article 57 of DPR 633/72) in which to demand payment of the duty than the period allowed to the trader for deduction of the duty, on expiry of which the trader's right to such deduction lapses.

Does it follow from a correct interpretation of Article 18(1)(d) of the Sixth Council Directive 77/388/EEC of 17 May 1977 that national legislation may not, in regulating the ‘formalities ’referred to in that provision by means of the reverse charge procedure governed by the combined provisions of Articles 17(3), 23 and 25 of DPR 633/72, make (solely to the detriment of the taxpayer) the exercise of the right to deduct permitted by Article 17 of the Directive conditional upon compliance with a time limit such as that laid down in Article 19 of DPR 633/72?

(1) OJ 1977 L 145, p. 1.

26.5.2007

Official Journal of the European Union

C 117/4

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Genova (Italy) lodged on 20 February 2007 — Ecotrade SpA v Agenzia Entrate Ufficio Genova 3

(Case C-96/07)

(2007/C 117/06)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Geonva

Parties to the main proceedings

Applicant: Ecotrade SpA

Defendant: Agenzia Entrate Ufficio Genova 3

Questions referred

(1) OJ 1977 L 145, p. 1.

26.5.2007

Official Journal of the European Union

C 117/5

Action brought on 26 February 2007 — Commission of the European Communities v Italian Republic

(Case C-112/07)

(2007/C 117/07)

Language of the case: Italian

Parties

Applicant: Commission of the European Communities (represented by: E. De Persio and M. Condou-Durande, acting as Agents)

Defendant: Italian Republic

Forms of order sought

The applicant claims that the Court should:

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 2004/80/EC of 29 April 2004 relating to compensation to crime victims (1) or, in any case, by not communicating to the Commission the text of those provisions, the Italian Republic has failed to fulfil its obligations under that Directive;

—	order the Italian Republic to pay the costs.

Pleas in law and main arguments

The period prescribed for the transposition of Directive 2004/80/EC into national law expired on 1 January 2006, with the exception of Article 12(2) of that Directive, in respect of which the date of compliance was 1 July 2005.

(1) OJ L 261, 6.8.2004, p. 15.

26.5.2007

Official Journal of the European Union

C 117/5

Appeal brought on 27 February 2007 by Selex Sistemi Integrati S.p.A. against the judgment delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati S.p.A. v Commission of the European Communities

(Case C-113/07 P)

(2007/C 117/08)

Language of the case: Italian

Parties

Appellant: Selex Sistemi Integrati S.p.A. (represented by: F. Sciaudone, R. Sciaudone and D. Fioretti, avvocati)

Other parties to the proceedings: Commission of the European Communities, Eurocontrol — European Organisation for the Safety of Air Navigation

Forms of order sought

The appellant claims that the Court should:

—	set aside the judgment of the Court of First Instance of the European Communities of 12 December 2006 in Case T-155/04 and refer the case back to that Court for a ruling on the merits in the light of guidance provided by the Court of Justice;

—	order the Commission to pay the costs of the present proceedings, and those of the proceedings in Case T-155/04.

Pleas in law and main arguments

In support of the forms of order sought, the appellant alleges a number of errors in law in relation both to the procedure and to the merits.

Errors in law in relation to the procedure

By way of errors in law on the part of the Court of First Instance in relation to the procedure, the appellant alleges:

—	infringement of Article 116(6) of the Rules of Procedure of the Court of First Instance, in so far as that Court authorised communication of the pleadings to Eurocontrol and permitted the latter to lodge written pleadings;

—	infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance, in so far as the facts on the basis of which the new pleas adduced by the appellant were ruled inadmissible were distorted;

—	infringement of Article 48(2) of the Rules of Procedure of the Court of First Instance, in so far as the Commission's conduct vis-à-vis the facts on the basis of which the new pleas adduced by the appellant were ruled inadmissible was not taken into consideration;

—	infringement of Article 66(1) of the Rules of Procedure of the Court of First Instance, in so far as no order was made in relation to the request for measures of inquiry.

Errors in law in relation to the merits

By way of errors in law in relation to the applicability of Article 82 EC to the assistance given by Eurocontrol to national administrations, the appellant alleges:

—	distortion of the content of the contested decision;

—	the contradictory nature of the reasons given for not annulling the contested decision despite the fact that the first plea in law adduced by the applicant was upheld;

—	the contradictory nature of the reasoning, in so far as the Court of First Instance substituted its own reasoning for that used by the Commission in the contested decision;

—	failure to comply with established Community case-law concerning the limits of judicial review;

—	manifest error of assessment as regards the infringement of Article 82 EC.

As regards the errors in law in relation to the applicability of Article 82 EC to Eurocontrol's standardisation activities, the appellant alleges:

—	distortion of the content of the contested decision;

—	adoption of a notion of economic activity incompatible with that developed by the Community case-law;

—	misinterpretation and misapplication of the Community case-law concerning social welfare benefits;

—	breach of the obligation to provide a sufficient statement of reasons.

As regards the errors in law in relation to the applicability of Article 82 EC to Eurocontrol's research and development activities (in particular, the acquisition of prototypes and the regime of intellectual property rights), the appellant alleges:

—	manifest distortion of the contested decision;

—	adoption of a notion of economic activity incompatible with that developed by the Community case-law;

—	misrepresentation and distortion of the evidence adduced by the appellant concerning the economic nature of Eurocontrol's management of the regime of intellectual property rights.

26.5.2007

Official Journal of the European Union

C 117/6

Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany), lodged on 27 February 2007 — Container Service Thorsten Sperzel GmbH v Land Hessen

(Case C-119/07)

(2007/C 117/09)

Language of the case: German

Referring court

Verwaltungsgericht Darmstadt

Parties to the main proceedings

Applicant: Container Service Thorsten Sperzel GmbH

Defendant: Land Hessen

Questions referred

Is Article 33(1) of Council Regulation (EEC) No 259/93 (1) of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community to be interpreted as meaning that, when calculating the administrative costs of carrying out the notification and supervision procedure, in addition to the costs of the administrative expense actually incurred for an official act, the importance of the official act for the notifier as recipient of the official act may also be taken into account?

Should the Court of Justice answer Question 1 in the affirmative:

Is Article 33(1) of Regulation (EEC) No 259/93 to be interpreted as meaning that the administrative costs of carrying out the notification and supervision procedure may be regarded as ‘appropriate ’even if, in calculating the administrative costs, the item ‘Value of the importance of the official act for the notifier ’exceeds many times (in the present case, by a factor of twenty) the costs of the administrative expense actually incurred?

(1) OJ L 30, p. 1.

26.5.2007

Official Journal of the European Union

C 117/7

Appeal brought on 2 March 2007 by Erste Bank der österreichischen Sparkassen AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-264/02

(Case C-125/07 P)

(2007/C 117/10)

Language of the case: German

Parties

Appellant: Erste Bank der österreichischen Sparkassen AG (represented by: F. Montag, Rechtsanwalt)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—

Partial annulment of the judgment of the Court of First Instance of the European Communities (Second Chamber) of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) in so far as it dismissed the action in Case T-264/02 against Commission Decision C (2002) 2091 final of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty and annul the aforementioned Commission Decision in so far as it imposes a fine on the applicant;

—	In the alternative, an appropriate reduction in the fine imposed on the applicant in Article 3 of Commission Decision C (2002) 2091 final of 11 June 2002 relating to a proceeding under Article 81 of the EC Treaty;

—	In the further alternative, annulment of the judgment of the Court of First Instance mentioned in Point 1 and reference of the case back to the Court of First Instance;

—	The defendant to pay the costs in any event.

Pleas in law and main arguments

It is submitted that the contested judgment failed to have regard to the scope of the right to be heard. The applicant did not receive a proper hearing with respect to the planned attribution by the Commission of the market shares for the Austrian savings bank sector. The Court erred in law in assuming in its judgment that the defendant's reference in the statement of objections to the applicant as the lead institution of the savings bank sector was sufficient to safeguard the applicant's right to a fair hearing. The defendant should also have pointed out to the applicant the conclusions it intended to draw from that factor.

As regards the substance of the case, it is contended that the Court failed to appreciate that the defendant's Decision

infringed Article 15(2) of Regulation No 17/1962 because the conduct of GiroCredit in respect of the period before its takeover by the applicant was attributed to the applicant. Instead GiroCredit's conduct with regard to that period should have been attributed to the Bank Austria group as it (i) controlled GiroCredit and influenced its participation in the Lombard Club, (ii) took part in the agreements of the Lombard Club through another group member company and (iii) still legally existed at the time when the Decision was adopted.

infringed Article 15(2) of Regulation No 17/1962 because the market shares of the savings banks, which were legally and economically independent during the period when the infringement occurred (1995 to June 1998), were attributed to the applicant. There was no legal basis for the attribution of the savings bank sector to the applicant. Furthermore, there were no preconditions for the legal bases which the Court and the defendant took into consideration.

infringed Article 81(1) EC as the attribution to the applicant of the market shares for the savings bank sector meant that, in the final analysis, the conduct of the legally and economically independent savings banks was attributed to the applicant without regard to the strict preconditions which the Court has set out concerning the attribution of conduct by others.

d.	infringed Article 15(2) of Regulation No 17/1962 as the fine should not have been imposed on account of the unlawful attribution to the applicant of GiroCredit and the savings bank sector and was in any event too high.

infringed Article 15(2) of Regulation No 17/1962 even if the attribution to the applicant of the savings bank sector had occurred lawfully, which it did not, as the attribution to the applicant of the entire savings bank sector was unlawful because a separate fine was imposed on Bank Austria and Erste österreichische Sparkasse — Bank AG respectively with the result that their market shares should not also have been taken into account again, and thus twice, in fixing the fine to be paid by the applicant.

f.	infringed Article 81(1) EC as the agreements of the Lombard Club did not result in any ‘perceptible ’effect on trade between Member States with the result that Article 81(1) EC should not have been applied in the present case.

(1) OJ C 331, p. 29.

26.5.2007

Official Journal of the European Union

C 117/8

Reference for a preliminary ruling from the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Republic) lodged on 26 February 2007 — Reisebüro Bühler GmbH v Dom.info e.K., Sebastian Dieterle

(Case C-126/07)

(2007/C 117/11)

Language of the case: German

Referring court or tribunal

Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic

Parties to the main proceedings

Complainant: Reisebüro Bühler GmbH

Respondents: Dom.info e.K., Sebastian Dieterle

Questions referred

Is the Arbitration Court for the resolution of .eu domain name disputes attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Arbitration Court), established pursuant to Regulation (EC) No 874/2004 (1), empowered to refer questions to the Court of Justice for a preliminary ruling under the second paragraph of Article 234 EC?

If the Court's answer to the first question is in the affirmative:

Does the power in Article 22(5) of Regulation (EC) No 874/2004 permit alternative dispute resolution rules (ADR Rules) to be made, according to which, inter alia, a respondent can not only apply for a complaint to be dismissed but can also seek a declaration that a complaint was brought in bad faith and constitutes an abuse of administrative proceeding (Paragraph B12(h) of the ADR Rules)?

If the Court's answer to the second question is in the negative:

Is an ADR panel of the Arbitration Court entitled to determine the application for a declaration on the basis of any other Community law or on the basis of general legal principles of Community law arising from the constitutional traditions of the Member States?

(1) OJ L 162, p. 40.

26.5.2007

Official Journal of the European Union

C 117/8

Reference for a preliminary ruling from the Conseil d'État (France) lodged on 5 March 2007 — Société Arcelor Atlantique et Lorraine, Société Sollac Méditerranée, Société Arcelor Packaging International, Société Ugine & Alz France, Société Industeel Loire, Société Creusot Métal, Société Imphy Alloys and Société Arcelor v Premier ministre, Ministre de l'Économie, des Finances et de l'Industrie, Ministre de l'Écologie et du Développement durable

(Case C-127/07)

(2007/C 117/12)

Language of the case: French

Referring court

Conseil d'État

Parties to the main proceedings

Applicants: Société Arcelor Atlantique et Lorraine, Société Sollac Méditerranée, Société Arcelor Packaging International, Société Ugine & Alz France, Société Industeel Loire, Société Creusot Métal, Société Imphy Alloys and Société Arcelor

Defendants: Premier ministre, Ministre de l'Économie, des Finances et de l'Industrie, Ministre de l'Écologie et du Développement durable

Question referred

Is Directive 2003/87/EC of 13 October 2003 (1) valid in the light of the principle of equal treatment, in so far as that Directive makes the greenhouse gas emission allowance trading scheme applicable to installations in the steel sector without including in its scope the aluminium and plastic industries?

(1) Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ L 275, p. 32).

26.5.2007

Official Journal of the European Union

C 117/8

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Angelo Molinari v Agenzia Entrate Ufficio Latina

(Case C-128/07)

(2007/C 117/13)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale Di Latina

Parties to the main proceedings

Applicant: Angelo Molinari

Defendant: Agenzia Entrate Ufficio Latina

Questions referred

1.	Must the judgment in Case C-207/04 (1) be interpreted as meaning that the Italian legislature should have extended to men the advantageous age-limit that applies to women?

2.	Must it be held in the present case that a rate equal to half of the rate applied for the taxation of severance pay must be applied to sums received as voluntary redundancy incentives by men who have passed the age of 50?

Given that amounts paid by way of personal income tax do not form part of the taxpayer's salary since they are not paid by the employer in respect of the employment, and given that an amount paid by an employer to an employee as an incentive is not in the nature of pay, is it consistent with Community law to rule that the application of different age limits — namely 50 years of age for women and 55 years of age for men — is contrary to Community law, in light of the fact that Directive No 79/7 (2) permits the Member States to preserve different pensionable ages?

Must Community law (Council Directive 76/207/EEC (3) of 9 February 1976, which prohibits discrimination on grounds of sex) be interpreted as precluding — or as not precluding — application of the relevant national rules that gave rise to the present case, with the effect that the national legislation (Article 17(4a) (now Article 19(4a) of DPR No 917/86) must be regarded as incompatible — or compatible — with Community law?

(1) Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona [2005] ECR I-7453.

(2) OJ 1979 L 6, p. 24.

(3) OJ 1976 L 39, p. 40.

26.5.2007

Official Journal of the European Union

C 117/9

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Giovanni Galeota v Agenzia Entrate Ufficio Latina

(Case C-129/07)

(2007/C 117/14)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Latina

Parties to the main proceedings

Applicant: Giovanni Galeota

Defendant: Agenzia Entrate Ufficio Latina

Questions referred

1.	Must the judgment in Case C-207/04 (1) be interpreted as meaning that the Italian legislature should have extended to men the advantageous age-limit that applies to women?

2.	Must it be held in the present case that a rate equal to half of the rate applied for the taxation of severance pay must be applied to sums received as voluntary redundancy incentives by men who have passed the age of 50?

(1) Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona [2005] ECR I-7453.

(2) OJ 1979 L 6, p. 24.

(3) OJ 1976 L 39, p. 40.

26.5.2007

Official Journal of the European Union

C 117/9

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Salvatore Barbagallo v Agenzia Entrate Ufficio Latina

(Case C-130/07)

(2007/C 117/15)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Latina

Parties to the main proceedings

Applicant: Salvatore Barbagallo

Defendant: Agenzia Entrate Ufficio Latina

Questions referred

1.	Must the judgment in Case C-207/04 (1) be interpreted as meaning that the Italian legislature should have extended to men the advantageous age-limit that applies to women?

2.	Must it be held in the present case that a rate equal to half of the rate applied for the taxation of severance pay must be applied to sums received as voluntary redundancy incentives by men who have passed the age of 50?

Must Community law (Council Directive 76/207/EEC (3) of 9 February 1976, which prohibits discrimination on grounds of sex) be interpreted as precluding — or as not precluding — application of the relevant national rules that gave rise to the present case, with the effect that the national legislation (Article 17(4a) (now Article 19) of DPR No 917/86) must be regarded as incompatible — or compatible — with Community law?

(1) Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona [2005] ECR I-7453.

(2) OJ 1979 L 6, p. 24.

(3) OJ 1976 L 39, p. 40.

26.5.2007

Official Journal of the European Union

C 117/10

Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Michele Ciampi v Agenzia Entrate Ufficio Latina

(Case C-131/07)

(2007/C 117/16)

Language of the case: Italian

Referring court

Commissione Tributaria Provinciale di Latina

Parties to the main proceedings

Applicant: Michele Ciampi

Defendant: Agenzia Entrate Ufficio Latina

Questions referred

1.	Must the judgment in Case C-207/04 (1) be interpreted as meaning that the Italian legislature should have extended to men the advantageous age-limit that applies to women?

2.	Must it be held in the present case that a rate equal to half of the rate applied for the taxation of severance pay must be applied to sums received as voluntary redundancy incentives by men who have passed the age of 50?

(1) Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona [2005] ECR I-7453.

(2) OJ 1979 L 6, p. 24.

(3) OJ 1976 L 39, p. 40.

26.5.2007

Official Journal of the European Union

C 117/10

Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 5 March 2007 — Beecham Group plc, SmithKline Beecham plc, Glaxo Group Ltd, Stafford-Miller Ltd, GlaxoSmithKline Consumer Healthcare NV and GlaxoSmithKline Consumer Healthcare BV v Andacon NV

(Case C-132/07)

(2007/C 117/17)

Language of the case: Dutch

Referring court

Rechtbank van Koophandel te Brussel

Parties to the main proceedings

Applicants: Beecham Group plc, SmithKline Beecham plc, Glaxo Group Ltd, Stafford-Miller Ltd, GlaxoSmithKline Consumer Healthcare NV, GlaxoSmithKline Consumer Healthcare BV

Defendant: Andacon NV

Questions referred

Must the first paragraph of Article 9 of Regulation (EC) No 1891/04 (1) be construed as prohibiting the competent customs service or the competent customs office from providing, or causing to be provided, information within the terms of Article 9(2) of Regulation (EC) No 1383/03 (2), or arranging, or causing to be arranged, an inspection within the terms of the second subparagraph of Article 9(3) of Regulation (EC) No 1383/03, so long as the application for action made prior to 1 July 2004 has not been supplemented by the declaration referred to in Article 6 of Regulation (EC) No 1383/03? In other words, is the declaration in question a formal condition governing the continued effectiveness of the application for action?

Is Article 4(2) of Regulation (EC) No 1383/03 to be construed as allowing the Antwerp customs authorities to grant the trade mark proprietor access to six samples of the goods in order to be able to determine whether or not the goods in question were counterfeit, it being understood that such notification of a sample is not to be treated as equivalent to a thorough inspection within the terms of the second subparagraph of Article 9(3) of Regulation (EC) No 1383/03? If so, ought this granting of access to have occurred within the period of three working days laid down in Article 4(1) of that regulation?

Does Regulation (EC) No 1383/03 preclude Belgian customs officials from providing information, acquired in the context of implementation of that regulation, outside the channels envisaged thereby — reference being made to, inter alia, Article 9(2) and the first subparagraph of Article 9(3) of Regulation (EC) No 1383/03 — for example, within the context of the questioning of witnesses or submission of documents ordered by Belgian courts?

Does Regulation (EC) No 1383/03 preclude information obtained as a result of the application of Articles 4(2) (see Question 2) and 9(2) and (3) thereof, other than that referred to in the first subparagraph of Article 9(3), or information obtained pursuant to the questioning of witnesses or submission of documents ordered by Belgian courts (see Question 3), from being used in the context of proceedings not designed to secure a declaration that goods are counterfeit, for example in connection with proceedings to counter parallel imports?

(1) Commission Regulation (EC) No 1891/2004 of 21 October 2004 laying down provisions for the implementation of Council Regulation (EC) No 1383/2003 concerning customs action against goods suspected of infringing certain intellectual property rights and the measures to be taken against goods found to have infringed such rights (OJ 2004 L 328, p. 16).

(2) OJ L 196, 2.8.2003, p. 7.

26.5.2007

Official Journal of the European Union

C 117/11

Appeal brought on 6 March 2007 by Raiffeisen Zentralbank Österreich AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-259/02

(Case C-133/07 P)

(2007/C 117/18)

Language of the case: German

Parties

Appellant: Raiffeisen Zentralbank Österreich AG (represented by: S. Völcker and G. Terhorst, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	Annulment of the judgment of the Court of First Instance of the European Communities of 14 December 2006 in Joined Cases T 259/02 to T-264/02 and T-271/02 (1) in so far as it dismisses RZB's action;

—	Annulment of Article 3 of the Commission decision of 11 June 2002 (C (2002) 2091 final) in so far as it concerns RZB;

—	In the alternative, a reduction at the discretion of the Court in the fine imposed on RZB in Article 3 of the contested decision;

—	The Commission to pay the costs.

Pleas in law and main arguments

The Court infringed Article 81 EC by accepting that the Commission can conclude merely from the fact that bank committees covered the territory of one Member State that trade between Member States may be affected.

The Court erred in law in classifying the bank committees as ‘a very serious infringement ’within the meaning of the Guidelines on fines. It misapplied the criteria mentioned in the Guidelines with regard to gravity (the nature of the infringement, actual impact on the market and size of the relevant geographic market), failed to take into account the selectivity of the Commission's action and did not ultimately carry out the overall appraisal of all viewpoints, which it had itself demanded.

The Court erred in law in attributing to RZB the market shares for the whole of the agricultural credit cooperative sector. In doing so it incorrectly confined its basis for review to only ‘manifest ’unequal treatment in respect of other banks. The legal basis necessary for a complete attribution was lacking.

The Court erred in law in assessing RZB's cooperation. It applied the criterion of ‘significant added value ’in contravention of the principle of non-retroactivity, failed to appreciate the voluntary nature of RZB's various contributions amounting to cooperation, erroneously assumed a reversal of the burden of proof as regards the value of the cooperation, impermissibly rejected the Common account of the facts as an inappropriate form of cooperation and erred in not recognising RZB's admission in respect of the anti-competitive purpose of the agreements as a contribution amounting to cooperation.

(1) OJ C 331, p. 29.

26.5.2007

Official Journal of the European Union

C 117/12

Appeal brought on 6 March 2007 by Bank Austria Creditanstalt AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-260/02

(Case C-135/07 P)

(2007/C 117/19)

Language of the case: German

Parties

Appellant: Bank Austria Creditanstalt AG (‘BA-CA’) (represented by: C. Zschocke and J. Beninca, Rechtsanwälte)

Other party to the proceedings: Commission of the European Communities

Form of order sought

—	set aside in whole or in part the judgment of the Court of First Instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1), in respect of Case T-260/02;

—	annul the decision of the Commission of 11 June 2002 in Case COMP/36.571, in so far as it concerns BA-CA;

—	in the alternative, reduce by an appropriate amount the fine imposed by the Commission upon BA-CA in the contested decision;

—	order the Commission to pay the costs.

Pleas in law and main arguments

By this appeal, the appellant seeks the setting aside of the judgment of the Court of First Instance of 14 December 2006. The appellant complains of numerous defects in reasoning and legal and procedural errors.

The appellant contends that the judgment appealed against endorsed without evident justification the Commission's view that the committee meetings of the banks had negative economic consequences. According to the appellant, the judgment appealed against infringes the principles governing the procedure for adducing evidence by misunderstanding the conditions to be satisfied by economic reports submitted in order to prove the absence of economic effects. On the basis of the report submitted, economic effects should not have been taken into account in the fixing of the fine.

The appellant maintains that the judgment appealed against disregarded the requirements established by the European courts imposing a need to reduce the fine on the basis of mitigating factors. Owing to this legal error, the judgment appealed against failed to correct the Commission's wrongful exercise of discretion which occurred when it took into account neither the participation of public bodies in, nor the widespread and proven public knowledge of, the committee meetings of the banks as factors mitigating the level of fines.

By its third plea in law, the appellant alleges defects in reasoning, infringement of the principle of equal treatment and further errors of law and procedure in the judgment appealed against in relation to the appraisal of its cooperation by the Commission.

The appellant maintains that it cooperated with the Commission from the outset in the reconstruction of the facts of the case. In particular it submitted at an early stage of the procedure a comprehensive account of the committee meetings of the banks and also, on a voluntary basis, an extensive set of documentation which — as found by the Court — was used by the Commission for its contested decision. Furthermore, in its reply to the statement of objections it provided an account of the facts which — as also confirmed by the judgment appealed against — the Commission was able to use for its contested decision.

Like the contested decision, the judgment appealed against failed to reduce the fine in return for this comprehensive, valuable and proven cooperation on the part of the appellant. This constitutes an incorrect application of the Leniency Notice, infringing the principle of equal treatment and the principle of legitimate expectations. Moreover, the judgment appealed against also infringed the appellant's right to be heard by independently considering factors relating to the level of the fine imposed on the appellant upon which it had been unable previously to comment.

(1) OJ 2006 C 331, p. 29.

26.5.2007

Official Journal of the European Union

C 117/13

Action brought on 7 March 2007 — Commission of the European Communities v Kingdom of Spain

(Case C-136/07)

(2007/C 117/20)

Language of the case: Spanish

Parties

Applicant(s): Commission of the European Communities (represented by: H. Støvlbæk and R. Vidal Puig, agents)

Defendant(s): Kingdom of Spain

Form of order sought

—

Declare that the Kingdom of Spain has failed to fulfil its obligations under Council Directive 89/48/EEC (1) of 21 December 1988 on a general system for the recognition of higher-education diplomas awarded on completion of professional education and training of at least three years' duration, and under Council Directive 92/51/EEC (2) of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC, in relation to the taking up of the profession of air traffic controller.

—	order Kingdom of Spain to pay the costs.

Pleas in law and main arguments

(1)

Directive 89/48/EEC is applicable to the taking up and pursuit of the profession of air traffic controller in Spain given that

—	the set of diplomas, licences and ratings necessary to the pursuit of the profession of ‘air traffic controller ’in Spain is a ‘diploma ’within the meaning of Directive 89/48/EEC;

—	the profession of air traffic controller is a ‘regulated profession ’in Spain within the meaning of Directive 89/48/EEC.

(2)	Notwithstanding the above, the Kingdom of Spain has not adopted the measures necessary to implement Directive 89/48/EEC in relation to the profession of air traffic controller.

(3)

The Commission considers that the Kingdom of Spain has also failed to fulfil its obligations under Directive 92/51/EEC in that

—	Directive 92/51/EEC is applicable to the profession of air traffic controller; and

—	The Kingdom of Spain has not adopted the measures necessary to implement Directive 92/51/EEC in relation to the profession of air traffic controller.

(4)

Directive 2006/23/EC (3) of the European Parliament and of the Council of 5 April 2006 on a Community air traffic controller licence establishes a system of mutual recognition of air traffic controller licences issued in accordance with that directive. However, the specified period within which Member States must comply with that directive does not expire until 17 May 2008. Consequently, until that date Directives 89/48/EEC and 92/51/EEC continue to apply in relation to the taking up and pursuit of the profession of air traffic controller in Spain.

(1) OJ 1989 L 19, p. 16.

(2) OJ 1992 L 209, p. 25.

(3) OJ 2006 L 114, p. 22.

26.5.2007

Official Journal of the European Union

C 117/13

Appeal brought on 8 March 2007 by Österreichische Volksbanken-AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-271/02

(Case C-137/07 P)

(2007/C 117/21)

Language of the case: German

Parties

Appellant: Österreichische Volksbanken-AG (represented by: A. Ablasser-Neuhuber, R. Bierwagen and F. Neumayr, lawyers)

Other party to the proceedings: Commission of the European Communities

Form of order sought

Set aside paragraphs 2 and 4 of the operative part of the judgment at first instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) and

annul the decision forming the subject-matter of the dispute — Commission Decision 2004/138/EC of 11 June 2002 in cartel case COMP/36.571/D-1 — in accordance with the first and third claims in so far as the decision relates to the appellant or, in the alternative, reduce the fine imposed on the appellant in accordance with the third claim; or

b.	in the further alternative, if the state of the proceedings does not permit final judgment to be given, refer the matter back to the Court of First Instance for renewed consideration and final judgment;

2.	order the Commission to pay the costs of the proceedings or, if the matter is referred back to the Court of First Instance, reserve the costs for a decision by that court.

Pleas in law and main arguments

The appellant's grounds for appeal against the judgment of the Court of First Instance are as follows:

The Court erred in law in its interpretation of the liability of the agreements or conduct of the undertakings to affect trade between Member States, and in its application of that criterion to the present case. It erred in law in its judgment regarding the relative importance of the criterion as to the partitioning of the market; it is not clear on what grounds the Court declined to allow that the criterion of the partitioning of the market has, at the very least, a strong evidential value as to the existence of an effect on inter-State trade. Further, the appellant complains that the Court assessed the cross-border effect of the meetings overall, instead of examining the individual meetings of the Lombard network separately in relation to their possible effects on trade between the Member States. The over-extension of Article 81(1) EC, whereby a cartel which covers the whole territory of a Member State is deemed, by its very nature, liable to partition the markets and affect intra-Community trade, or that there is in any event a strong presumption to that effect, is inconsistent with the rationale of that Community law provision.

The Court erred in law by failing to apply the conditions for the attribution of turnover — which have been developed by the Commission and in case-law — to the attribution to the lead institution of the decentralised banks' market shares. It thus disregarded the fact that both the attribution of turnover and the attribution of market shares relate to the same substantive issue in the present case, the determination of the permissible fine. There appears to be no reason why the comparable issues of turnover attribution and market share attribution should be judged by different criteria. However, even if it were assumed that the decentralised banks' market shares could be attributed to the lead institution on some basis other than that which applies to the attribution of turnover, the basis specifically chosen by the Court is incorrect and unlawful.

The Court was wrong to dismiss the appellant's complaints concerning the failure to take attenuating circumstances into account. It failed, in its legal assessment, in particular to take sufficient account of the fact that the appellant had a minor role in relation to the cartel as a whole and that there was no need for compulsion in the course of the investigation, as the appellant had cooperated voluntarily with the Commission. The appellant has a very small market share, was not invited into the inner circle by the other banks and participated in significantly fewer meetings. Those factors, which were put forward by the appellant and from which the existence of attenuating circumstances may be inferred, were to some extent not addressed at all. Neither the Commission nor the Court fulfilled the obligation to address the facts put forward and to assess them without any error in law.

(1) OJ C 331, p. 29.

26.5.2007

Official Journal of the European Union

C 117/14

Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret

(Case C-138/07)

(2007/C 117/22)

Language of the case: Dutch

Referring court

Hof van beroep te Antwerpen

Parties to the main proceedings

Appellant: Belgische Staat

Respondent: N.V. Cobelfret

Question referred

Is a set of rules such as the Belgian system of definitive taxed income, under which relevant dividends are, first, added to the taxable basis of the parent company and, subsequently, the amount of those received dividends is, pursuant to Article 205(2) of the Belgian Income Tax Code, deducted from the taxable basis of the parent company (in the amount of 95 %) only in so far as the parent company has taxable profits, compatible with Article 4 of Council Directive 90/435/EEC (1) of 23 July 1990 on the common system of taxation applicable in the case of parent companies and subsidiaries of different Member States, inasmuch as the result of such a restriction on deductibility from definitively taxed income is that a parent company will, in a subsequent taxable period, be taxed on the dividends received in the case where it had no, or had inadequate, taxable profits over the taxable period in which the dividends were received, or at least that the fiscal losses relating to the taxable period are wrongly used up and are, as a result, no longer transferable up to the amount of received dividends, which, in the absence of fiscal losses, ought in any case to have been exempted up to 95 %?

(1) OJ 1990 L 225, p. 6.

26.5.2007

Official Journal of the European Union

C 117/15

Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 12 March 2007 — Hecht-Pharma GmbH v Staatliches Gewerbeaufsichtsamt Lüneburg

(Case C-140/07)

(2007/C 117/23)

Language of the case: German

Referring court

Bundesverwaltungsgericht

Parties to the main proceedings

Applicant: Hecht-Pharma GmbH

Defendant: Staatliches Gewerbeaufsichtsamt Lüneburg

Other party: Vertreterin des Bundesinteresses beim Bundesverwaltungsgericht

Questions referred

Does the rule of doubt in Article 2(2) of Directive 2001/83/EC (1) in the version of Directive 2004/27/EC (2) mean that Directive 2001/83/EC applies to a product which could possibly be classified as a medicinal product but whose quality of a medicinal product has not been positively determined? What degree of probability and hence what degree of elucidation of the facts may be required in order to justify the application of Directive 2001/83/EC?

Can a product which is not a presentational medicinal product be regarded as a functional medicinal product within the meaning of Article 1(2) of Directive 2001/83/EC in the version of Directive 2004/27/EC because of a component which can produce physiological changes in a certain dosage but whose dosage in the product to be assessed — if used as intended — is too low for that? Is this question to be allocated to the criterion of ‘pharmacological action ’or the criterion of ‘modifying physiological functions in human beings’?

Are the characteristics of ‘the manner in which it is used, the extent of its distribution, its familiarity to consumers and the risks which its use may entail ’(judgment in Case C-211/03 [2005] ECR I-5141, paragraph 51) stated in the case-law of the Court of Justice to be relevant, in addition to the pharmacological qualities, to classification as a medicinal product still relevant following the new definition of a medicinal product introduced by Directive 2004/27/EC?

(1) OJ L 311, p. 67.

(2) OJ L 136, p. 34.

26.5.2007

Official Journal of the European Union

C 117/15

Action brought on 9 March 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-141/07)

(2007/C 117/24)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: B. Schima)

Defendant: Federal Republic of Germany

Form of order sought

—

declare that, by providing in Paragraph 14(5) and 14(6) of the Apothekengesetz (Law on Pharmacies) that a contract to supply medicinal products is subject to cumulative requirements which make it impossible in practice for pharmacies in other Member States to supply a hospital on a regular basis with medicinal products, the Federal Republic of Germany has failed to fulfil its obligations under Article 28 EC and Article 30 EC;

—	order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

Under Article 28 EC, all quantitative restrictions on imports and all measures having equivalent effect shall be prohibited between Member States. All trading rules of the Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered to be measures having an equivalent effect to quantitative restrictions. The fact that, as Community law currently stands, the rules relating to the distribution of medicinal products have been harmonised only in certain limited fields does not release a Member State from its obligation to comply with the provisions concerning the free movement of goods.

According to Paragraph 14 of the German Apothekengesetz (Law on Pharmacies), German hospitals may be supplied with medicinal products by an external pharmacy instead of setting up their own pharmacy inside the hospital. According to this provision, contracts for the supply of medicinal products must however satisfy cumulative requirements which make it impossible in practice for pharmacies in other Member States to supply them to a hospital on a regular basis, given that certain duties stipulated under the contract are capable of being fulfilled only by pharmacies established in the vicinity of the hospital which is to be supplied.

According to the case-law of the Court, national provisions restricting or prohibiting certain selling arrangements do not fall under Article 28 EC provided that two requirements are met: first, the provisions concerned must apply to all affected traders operating within the national territory and, second, they should affect the marketing of domestic products and those from other Member States in the same manner, in law and in fact. In this case only the first condition is however met, whereas domestic and foreign products are not affected in the same manner, in law and in fact, by the legislative requirement that all duties under the contract be met by a single supplier. This rule impedes access to the market more for foreign goods than for domestic products. In that regard it is immaterial according to the case-law of the Court that domestic pharmacies which are not situated in the vicinity of the hospital are also confronted by the same problems. A national provision which does not favour all domestic products and which also adversely affects domestic and not only foreign products is still capable of being regarded as a restriction on trade between Member States.

Restrictions on intra-Community trade may be justified on overriding grounds of public interest, in particular relating to public security or public health requirements. The national rules in question should be suitable, necessary and proportionate. There is no requirement on grounds of public health for the bundling mandated by national legislation of the contractual duties referred to. It should on the contrary be possible for a pharmacy situated at some greater distance from the hospital which is to be supplied and also in another Member State to supply it with medicinal products on a regular basis.

26.5.2007

Official Journal of the European Union

C 117/16

Appeal brought on 13 March 2007 by K-Swiss, Inc. against the order of the Court of First Instance (Third Chamber) delivered on 14 December 2006 in Case T-14/06: K-Swiss, Inc. v Office for Harmonisation in the Internal Market (Trade Mark and Designs) (OHIM)

(Case C-144/07 P)

(2007/C 117/26)

Language of the case: English

Parties

Appellant: K-Swiss, Inc. (represented by: H.E. Hübner, Advocate)

Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

Form of order sought

The applicant claims that the Court should:

—	set aside the order of the Court of First Instance;

—	order the Office for Harmonisation in the Internal Market (Trade Marks end Designs) (OHIM) to pay the costs.

Pleas in law and main arguments

The appellant submits that in declaring its action out of time the Court of First Instance violated Rules 61, 62 and 68 of Commission regulation (EC) No 2868/95, of 13 December 1995, implementing Council regulation (EC) No 40/94 on the Community trade mark (1).

(1) OJ 1995 L 303, p. 1.

26.5.2007

Official Journal of the European Union

C 117/17

Action brought on 15 March 2007 — Commission of the European Communities v Portuguese Republic

(Case C-150/07)

(2007/C 117/27)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: G. Wilms and M. Afonso, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

—

A declaration that, by refusing to pay to the Commission default interest owed on the late payment of own resources in connection with the ATA system, and by not amending its national practice in respect of the entry in the accounts of own resources under that system, the Portuguese Republic has failed to fulfil its obligations under Articles 2, 6(2), 9, 10 and 11 of Regulation (EEC) No 1552/89 (1);

—	An order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

On 21 February 1992, the date of the unofficial establishment of the amounts of the customs debts at issue, those amounts had not been formally challenged by either the debtors or the guaranteeing association, and payment of those debts was guaranteed in accordance with Article 6(1) of the ATA Convention. As a result, the conditions for entering the established entitlements in the A accounts were satisfied.

The amounts in question ought to have been entered in the A accounts and made available to the Community budget within the periods prescribed by Regulation No 1552/89. In so far as the Portuguese authorities entered those amounts late in the account referred to in Article 9(1) of Regulation No 1552/89, default interest is owed, calculated in accordance with Article 11 of that regulation and, as from 31 May 2000, with Article 11 of Regulation No 1150/2000 (2). Furthermore, the Portuguese authorities ought to have adapted their national practice to conform to the Community legislation when dealing with any similar cases under the ATA Convention.

(1) Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities' own resources (OJ 1989 L 155, p. 1).

(2) Council Regulation (EC, Euratom) No 1150/2000 of 22 May 2000 implementing Decision 94/728/EC, Euratom on the system of the Communities' own resources (OJ 2000 L 130, p. 1).

26.5.2007

Official Journal of the European Union

C 117/17

Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 19 March 2007 — Theologos-Grigorios Khatzithanasis v Ipourgos Igias kai Kinonikis Allilengiis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.)

(Case C-151/07)

(2007/C 117/28)

Language of the case: Greek

Referring court

Simvoulio tis Epikratias (Council of State)

Parties to the main proceedings

Applicant: Theologos-Grigorios Khatzithanasis

Defendants: Ipourgos Igias kai Kinonikis Allilengiis (Minister for Health and Social Solidarity) and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.) (Organisation for Professional Education and Training)

Question referred

When a national of a Member State, relying upon evidence of a qualification which, according to him, falls within the field of application of Council Directive 92/51/EEC of 18 June 1992 on a second general system for the recognition of professional education and training to supplement Directive 89/48/EEC (OJ 1992 L 209, p. 25), requests the competent authorities of the host Member State to allow him access to a profession regulated in the host Member State or to allow him to pursue that profession, is it open to those authorities — under Articles 1, 2, 3 and 4 of Directive 92/51, interpreted in the light of Articles 149 and 150 of the Treaty establishing the European Community — to reject his application (and thus to exclude entirely access by him to that profession or pursuit thereof in the host Member State) solely on the ground that, while the qualification in question was awarded by an authority of the Member State from which he comes, that followed studies the greater part of which were carried out in the host Member State, at a body which operates freely in that State but, pursuant to the relevant general provision in its legislation, is not recognised as an educational establishment there?

26.5.2007

Official Journal of the European Union

C 117/18

Reference for a preliminary ruling from the Centrale Raad van Beroep lodged on 22 March 2007 — Jacqueline Förster v IB-Groep

(Case C-158/07)

(2007/C 117/29)

Language of the case: Dutch

Referring court

Centrale Raad van Beroep

Parties to the main proceedings

Applicant: Jacqueline Förster

Defendant: IB-Groep

Questions referred

1.	Does Article 7 of Regulation (EEC) No 1251/70 (1) also apply to students who came to the Netherlands principally to study and initially worked as employed persons on a limited scale while continuing to study, but have meanwhile ceased to work?

2.	Does Directive 93/96 (2) preclude students as referred to in Question 1 from successfully relying on Article 12 EC to claim full study finance?

(a)	Does the rule that citizens of the Union who are not economically active can rely on Article 12 EC only if they have resided lawfully in the host Member State for a certain period or are in possession of a residence permit also apply to assistance to cover the maintenance costs of students?

(b)	If so, is it permissible to impose during that period a residence duration requirement only on nationals of Member States other than the host Member State?

(c)	If so, is the application of a five-year residence duration requirement consistent with Article 12 EC?

(d)	If not, what residence duration may be required?

4.	Should a shorter period of lawful residence be required in individual cases if factors other than the duration of residence indicate a substantial degree of integration into the society of the host Member State?

If, as is evident from a judgment of the Court of Justice with retroactive effect, persons are able to derive from Article 12 EC more rights than was previously assumed, may justified requirements connected therewith be imposed in respect of periods in the past if those requirements were published shortly after the publication of the judgment?

(1) Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a Member State after having been employed in that State (OJ, English Special Edition, 1970 (II), p. 402).

(2) Council Directive 93/96/EEC of 29 October 1993 on the right of residence for students (OJ 1993 L 317, p. 59).

26.5.2007

Official Journal of the European Union

C 117/18

Action brought on 22 March 2007 — Commission of the European Communities v Portuguese Republic

(Case C-159/07)

(2007/C 117/30)

Language of the case: Portuguese

Parties

Applicant: Commission of the European Communities (represented by: K. Simonsson and P. Andrade, acting as Agents)

Defendant: Portuguese Republic

Form of order sought

—

A declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2005/23/EC (1) of 8 March 2005 amending Directive 2001/25/EC of the European Parliament and of the Council on the minimum level of training of seafarers or, in any event, by failing to communicate them to the Commission, the Portuguese Republic has failed to fulfil its obligations under that directive;

—	an order that the Portuguese Republic should pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of the directive into domestic law expired on 29 September 2005.

(1) OJ 2005 L 62, p. 14.

26.5.2007

Official Journal of the European Union

C 117/19

Action brought on 29 March 2007 — Kingdom of Spain v Council of the European Union

(Case C-167/07)

(2007/C 117/31)

Language of the case: Spanish

Parties

Applicant: Kingdom of Spain (represented by: N. Díaz Abad, agent)

Defendant: Council of the European Union

Form of order sought

—

Annul Council Regulation (EC) No 41/2007 (1) of 21 December 2006 fixing for 2007 the fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required, to the extent that specific quotas are not allocated to the Spanish fleet in the Community waters of the North Sea and

—	Order the Council of the European Union to pay the costs.

Pleas in law and main arguments

(1) Infringement of the principle of non-discrimination:

The Kingdom of Spain believes that, to the extent that the contested regulation does not allocate to Spain quotas in the Community waters of the North Sea, there is an infringement of the principle of non-discrimination, given that, on the expiry of the transitional period stipulated in the Act of Accession, all other Member States are recognised to have the right of access to those waters and their resources, whereas the Kingdom of Spain is recognised to have the right of access only to those waters.

(2) Misinterpretation of the Act of Accession of Spain:

The Act of Accession in laying down rules concerning the transitional period for Spain in relation to fisheries does not distinguish between access to waters and access to resources. Moreover, the provisions of the Act of Accession should be interpreted to accord with its context and purposes.

(3) Infringement of Article 20(2) of Regulation 2371/2002 (2):

The provision is infringed in that no quotas are allocated to Spain in respect of new fishing opportunities established and distributed for the first time after the expiry of the transitional period specified in the Act of Accession.

(1) OJ 2007 L 15, p. 1.

(2) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).

26.5.2007

Official Journal of the European Union

C 117/19

Reference for a preliminary ruling from the Tribunal de Grande instance de Nanterre (France) lodged on 2 April 2007 — 1. S.A. SAFBA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 2. S.A. Sucreries et Raffineries d'Erstein v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 3. SA Sucreries & Distilleries de Souppes — Ouvré Fils v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 4. SA Sucrerie de Bourgogne v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 5. Sucrerie Bourdon v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 6. S.A. des Sucreries du Marquenterre v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 7. Cristal Union v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 8. S.A. Lesaffre Frères v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 9. Sociéte Vermendoise Industries v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 10. S.A. Sucreries de Toury et Usines annexes v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers

(Case C-175/07 - Case C-176/07 - Case C-177/07 - Case C-178/07 - Case C-179/07 - Case C-180/07 - Case C-181/07 - Case C-182/07 - Case C-183/07 - Case C-184/07)

(2007/C 117/32)

Language of the case: French

Referring court

Tribunal de Grande instance de Nanterre

Parties to the main proceedings

Applicants: S.A. SAFBA (C-175/07), S.A. Sucreries et Raffineries d'Erstein (C-176/07), SA Sucreries & Distilleries de Souppes — Ouvré Fils (C-177/07), SA Sucrerie de Bourgogne (C-178/07), Sucrerie Bourdon (C-179/07), S.A. des Sucreries du Marquenterre (C-180/07), Cristal Union (C-181/07), S.A. Lesaffre Frères (C-182/07), Sociéte Vermendoise Industries (C-183/07), S.A. Sucreries de Toury et Usines annexes (C-184/07)

Defendants: Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers

Questions referred

Is Commission Regulation No 314/2002 (1) invalid in the light of Article 15 of Council Regulation No 1260/2001 on the common organisation of the markets in the sugar sector (2) and in the light of the principles of proportionality and non-discrimination, in that it does not provide, for calculation of the contribution on production, for the exclusion from the financing requirements of those quantities of sugar contained in processed products, which are exported without benefit of an export refund?

In the event that the answer to that question is in the negative:

Is Regulation No 1686/2005 (3) invalid in the light of Commission Regulation No 314/2002 and of Article 15 of Council Regulation No 1260/2001 and of the principle of proportionality, in that it fixes a contribution on production for sugar which is calculated on the basis of an ‘average loss ’per tonne exported, which does not take account of the quantities exported without a refund, although those same quantities are included in the total used for evaluation of the total loss to be financed?

(1) Commission Regulation (EC) No 314/2002 of 20 February 2002 laying down detailed rules for the application of the quota system in the sugar sector (OJ 2002 L 50, p. 40).

(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the common organisation of the markets in the sugar sector (OJ 2001 L 178, p. 1).

(3) Commission Regulation (EC) No 1686/2005 of 14 October 2005 setting the production levies and the coefficient for the additional levy in the sugar sector for the 2004/05 marketing year (OJ 2005 L 271, p. 12).

26.5.2007

Official Journal of the European Union

C 117/20

Action brought on 3 April 2007 — Commission of the European Communities v Federal Republic of Germany

(Case C-192/07)

(2007/C 117/33)

Language of the case: German

Parties

Applicant: Commission of the European Communities (represented by: M. Condou-Durande and W. Bogensberger, Agents)

Defendant: Federal Republic of Germany

Form of order sought

The applicant claims that the Court should:

—

declare that, by not adopting the laws, regulations and administrative provisions necessary to implement Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (1), or, by not informing the Commission of such provisions, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

—	order the Federal Republic of Germany to pay the costs.

Pleas in law and main arguments

The period prescribed for transposition of Directive 2003/86/EC expired on 3 October 2005.

(1) OJ 2003 L 251, p. 12.

26.5.2007

Official Journal of the European Union

C 117/20

Action brought on 12 April 2007 — Commission of the European Communities v Hellenic Republic

(Case C-199/07)

(2007/C 117/34)

Language of the case: Greek

Parties

Applicant: Commission of the European Communities (represented by: M. Patakia and D. Kukovec)

Defendant: Hellenic Republic

Form of order sought

—

declare that, by introducing de facto an additional criterion for automatic exclusion beyond those which are expressly provided for in Article 31(2) of Council Directive 93/38/EEC (1) of 14 June 1993 coordinating the procurement procedures of entities operating in the water, energy, transport and telecommunications sectors, to the detriment of foreign consultancy firms, and by failing to distinguish in the contest in question between qualitative selection criteria and award criteria, the Hellenic Republic has failed to fulfil obligations flowing from Community legislation on public procurement, more specifically Articles 4(2), 31(1) and (2) and 34(1)(a) of Directive 93/38/EEC, as interpreted by the Court of Justice of the European Communities, the principle of mutual recognition of formal qualifications which is governed by Community law on public procurement, and Articles 12 and 49 of the Treaty;

—	order the Hellenic Republic to pay the costs.

Pleas in law and main arguments

The Commission received a complaint concerning irregularities in connection with a design contest announced by ERGA OSA AE in 2003 for ‘Studies relating to building and electrical-engineering works and installations — first phase of the group of stations in the Thriasio Plain’.

In light of the Court's case-law, the Commission submits that the condition for consultancy firms' participation in the design contest which envisages their grading, in accordance with the Greek system, in classes, and indeed in the ‘specified ’classes, introduces de facto a ground of exclusion beyond the grounds of exclusion which are expressly mentioned in Article 31(2) of Directive 93/38/EEC, and amounts in some instances to discrimination against foreign consultancy firms, in breach of Article 4(2) of Directive 93/38/EEC.

The Commission also submits that that condition in the foregoing notice of competition infringes the principle of mutual recognition of diplomas, certificates or other evidence of formal qualifications and Articles 12 and 49 EC.

The Commission further contends that the notice of competition does not separate the selection and award stages and confuses the selection criteria with the award criteria, in breach of Articles 31 and 34 of Directive 93/38/EEC.

Finally, the Commission contends that the repeal, relied on by the Greek authorities, of a law previously in force did not eliminate the infringement alleged against it, since it is the misapplication of the relevant Community provisions by the Greek authorities that is at issue, and not a failure adequately to transpose them into Greek law.

Consequently, the Commission submits that the Hellenic Republic has failed to fulfil its obligations under Articles 4(2), 31(1) and (2) and 34(1)(a) of Directive 93/38/EEC and has infringed the principle of mutual recognition of formal qualifications and Articles 12 and 49 EC.

(1) OJ L 199, 9.8.1993, p. 84.

26.5.2007

Official Journal of the European Union

C 117/22

Action brought on 12 March 2007 — Ahmed Hamdi v Council of the European Union

(Case T-75/07)

(2007/C 117/35)

Language of the case: Dutch

Parties

Applicant: Ahmed Hamdi (Amsterdam, Netherlands) (represented by: M.J.G. Uiterwaal, lawyer)

Defendant: Council of the European Union

Form of order sought

—	The Common Position 2002/402/CSFP (OJ 2002 L 344, p. 93) is, in the case of the applicant, wrongly used as the basis for Regulation 2001/2580/EC (OJ 2001 L 344, p. 70) and so the regulation is not binding on the applicant;

—	in any event, that regulation should not be applied as against the applicant;

—	in any event, Decision 2006/1008/EC of 21 December 2006 (OJ 2006 L 379, p. 123) should be annulled;

—	the Councilshould be ordered to pay the costs.

Pleas in law and main arguments

The applicant was sentenced to a period of imprisonment after the national court found that he had been proved to belong to a terrorist organisation, the Hofstadgroep. The applicant has appealed against that judgment.

In Decision 2006/1008/EC (1) the Council added the applicant to the list of persons and entities to which Regulation (EC) No 2580/2001 (2) applies.

In support of his action the applicant submits that both the contested decision and the contested regulation were adopted in breach of essential procedural requirements and in particular with an inadequate statement of reasons. In the regulation, the Council has failed to explain why it was necessary in the framework of the common market. In the decision, there is no statement of the reasons why the Council considered that it had to apply Regulation No 2580/2001 to the applicant.

The applicant also submits that the contested decision lacks the necessary legal basis. Regulation No 2580/2001 conflicts with the EC Treaty in so far as the regulation is applied to the applicant. The contested regulation is not the necessary implementation of obligations flowing from a resolution of the UN Security Council. There is no link between the applicant and third countries or other aspects of the Community foreign and security policy and thus the second pillar is not applicable to the applicant's case.

Article 308 EC is not a legal basis because there is no link with the implementation of the common market. Moreover, the contested regulation does not give effect to any Union objective and thus the combination of Articles 60, 301 and 308 is not an adequate legal basis.

Finally, the applicant submits that the contested decision infringes his fundamental rights, in particular the right to the peaceful enjoyment of property and his right to undisturbed private life, as follow from the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR).

(1) Council Decision 2006/1008/EC of 21 December 2006 implementing Article 2(3) of Regulation (EC) No 2580/2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2006 L 379, p. 123).

(2) Council Regulation (EC) No 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism (OJ 2001 L 344, p. 70).

26.5.2007

Official Journal of the European Union

C 117/22

Action brought on 12 March 2007 — El Fatmi v Council of the European Union

(Case T-76/07)

(2007/C 117/36)

Language of the case: Dutch

Parties

Applicant: Nouriddin El Fatmi (Amsterdam, Netherlands) (represented by: M.J.G. Uiterwaal, lawyer)

Defendant: Council of the European Union

Form of order sought

—	Common Position 2002/402/CSFP (OJ 2002 L 344, p. 93) is, in the case of the applicant, wrongly used as the basis for Regulation 2001/2580/EC (OJ 2001 L 344, p. 70) and so the regulation is not binding on the applicant;

—	in any event, that regulation should not be applied as against the applicant;

—	in any event, Decision 2006/1008/EC of 21 December 2006 (OJ 2006 L 379, p. 123) should be annulled;

—	the Council should be ordered to pay the costs.

Pleas in law and main arguments

The pleas and main arguments raised by the applicant are the same as in Case T-75/07 Hamdi v Council, apart from the last plea, which is not raised by the applicant in the present case.

26.5.2007

Official Journal of the European Union

C 117/23

Action brought on 14 March 2007 — KG Holding (in liquidation) v Commission

(Case T-81/07)

(2007/C 117/37)

Language of the case: Dutch

Parties

Applicant: Jan Rudolf Maas, acting in his capacity as receiver in the liquidation proceedings relating to K.G. Holding N.V. (Rotterdam, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the Commission's decision of 19 July 2006 in Case C 30/2005;

—	order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision 2006/939/EC of 19 July 2006 on the aid measure notified by the Netherlands for KG Holding NV (1).

The aid measure mentioned related to restructuring aid which the Netherlands wished to grant to KG Holding NV by converting a previously approved rescue loan and the interest due thereon into equity capital. In the contested decision, the Commission declares the aid measure, in the form of restructuring aid, to be incompatible with the common market.

The Commission also ruled that the Netherlands had to recover from KG Holding NV and its subsidiary Kliq BV that portion of the aid which KG Holding NV had transferred to Kliq BV as a rescue loan and which had been converted into equity capital, and that the Netherlands were required to register with the receiver their claim against KG Holding NV and/or Kliq Reïntegratie as a creditor in the liquidation proceedings.

In support of his application, the applicant submits, first, that the Commission committed errors of appraisal, as a result of which the contested decision is inadequately reasoned and at variance with Article 87(1) EC. The applicant claims in particular that the Commission erred in deciding that the Netherlands had to register with the receiver their claim in the amount of EUR 35.75 million against KG Holding and Kliq Reïntegratie as a creditor in the liquidation proceedings. It is, the applicant contends, unclear whether the Commission concluded in the contested decision, in regard to KG Holding, that there was unlawful aid in the amount of EUR 35.75 million that had to be claimed back by the Netherlands or whether what was in issue was rescue aid which the Commission approved in the contested decision on the basis of point 23(d) of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (2). Further, it is alleged that the Commission, in its decision of 16 December 2003 (3), had agreed that this amount was to be used to finance the redundancies of staff members and the redemption of the redundant contracts of Kliq Reïntegratie, and that Kliq Reïntegratie was thereafter to be placed in liquidation.

The applicant submits, second, that the Commission erred in its claim regarding the full payment of KG Holding's shares in Kliq BV through set-off of the obligation to make full payment against KG Holding's claim against Kliq BV under the loan agreement. That, it is claimed, did not form any part of the decision of 5 August 2005 (4) which initiated the proceedings. The Commission, it is alleged, misused its powers and acted in a manner contrary to the rights of the defence and the principle of audi alteram partem.

Third, it is alleged that the Commission wrongly failed to establish that the alleged aid might be liable to have an adverse effect on competition and trade between Member States; at any rate, the Commission's findings in this regard are not adequately reasoned.

Fourth, the Commission is alleged to have erroneously determined that the alleged aid of EUR 9.25 million must be recovered by the Netherlands from KG Holding and Kliq BV. It is submitted that the Commission also erred in finding that the alleged aid of EUR 35.75 million had to recovered from KG Holding and/or Kliq Reïntegratie by registering those claims in the liquidation proceedings. By reason of the liquidation of KG Holding, Kliq Reïntegratie and Kliq BV, recovery of the amounts of alleged aid will, it is argued, be permanently impossible and has in any event become pointless in the sense that recovery through registration in the liquidation of those companies is unnecessary and, indeed, has become entirely superfluous for the purpose of putting an end to the distortion of competition.

Fifth, it is argued that the Commission erred in its statements and findings in law with regard to a current-account credit facility of EUR 17 million already provided by the Netherlands to KG Holding when the latter was established and in accordance with the rules on State aid and which did not form part of the measure under examination in the contested decision.

In conclusion, the applicant alleges that the Commission erred in its decision that the Netherlands had to take all necessary measures to recover an amount of EUR 9.25 million from KG Holding, including interest from the date on which the individual portions of that amount had been made available to the recipients up to the date on which the money was actually repaid. That requirement, it is argued, is at variance with national bankruptcy law.

(1) OJ 2006 L 366, p. 40.

(2) OJ 1999 C 288, p. 2.

(3) Aid measure N 510/2003 — Rescue aid for Kliq Holding NV (OJ 2004 C 33, p. 8).

(4) State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to KG Holding N.V. — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).

26.5.2007

Official Journal of the European Union

C 117/24

Action brought on 14 March 2007 — Kliq (in liquidation) v Commission

(Case T-82/07)

(2007/C 117/38)

Language of the case: Dutch

Parties

Applicants: Jan Rudolf Maas and Cornelis Van den Bergh, acting in their capacity as receivers in the liquidation proceedings relating to Kliq B.V., a private company with limited liability (Apeldoorn, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the Commission's decision of 19 July 2006 in Case C 30/2005;

—	order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicants are challenging Commission Decision 2006/939/EC of 19 July 2006 on the aid measure notified by the Netherlands for KG Holding NV (1).

That aid measure related to restructuring aid which the Netherlands wished to grant to KG Holding NV by converting a previously approved rescue loan and the interest payable thereon into equity capital. In the contested decision, the Commission declares the aid measure, in the form of restructuring aid, to be incompatible with the common market.

The Commission also rules that the Netherlands must recover from KG Holding NV and its subsidiary Kliq BV that portion of the aid which KG Holding NV had transferred to Kliq BV as a rescue loan and which had been converted into equity capital, and that the Netherlands are required to register with the receivers their claim against KG Holding NV and/or Kliq Reïntegratie as a creditor in the liquidation proceedings.

In support of their application, the applicants submit, first, that the Commission erred in its claim regarding the full payment of KG Holding's shares in Kliq BV through set-off of the obligation to make full payment against KG Holding's claim against Kliq BV under the loan agreement. That, it is claimed, did not form any part of the decision of 5 August 2005 (2) which initiated the proceedings. The Commission, it is alleged, misused its powers and acted in a manner contrary to the rights of the defence and the applicants' right to be heard. Second, the Commission, it is alleged, was wrong to find that Kliq B.V. was to be regarded as a recipient of State aid in the amount of EUR 9.25 million. In its appraisal, the Commission wrongly failed to take account of the fact that the ‘conversion of the rescue loan into equity capital’, as referred to in points (43) to (46) of the contested decision, cannot in any wise whatsoever be attributed to the Member State of the Netherlands and therefore cannot be classified as State aid within the terms of Article 87(1) EC. In this connection, it is argued, the Commission committed errors in its appraisal of the facts. In the view of the applicants, the contested decision is therefore legally and/or factually incorrect, or at any rate incomprehensible and/or incorrect or inadequately reasoned and at variance with Article 87 EC and/or Article 253 EC.

Fourth, the Commission is alleged to have erred in its determination that the alleged aid in the amount of EUR 9.25 million must be recovered by the Netherlands from KG Holding and Kliq BV. By reason of the liquidation of KG Holding, Kliq Reïntegratie and Kliq BV, recovery of amounts of alleged aid will, it is argued, be definitively impossible and has in any event become pointless in the sense that recovery through registration in the liquidation proceedings relating to those companies is unnecessary and, indeed, entirely superfluous for the purpose of putting an end to the distortion of competition.

Fifth, it is submitted that the Commission erred in its decision that the amount to be recovered from KG Holding and Kliq BV also includes interest from the date on which the individual portions of that amount were made available to the recipients up to the date on which the money is actually repaid. That requirement, it is argued, is at variance with national bankruptcy law.

(1) OJ 2006 L 366, p. 40.

(2) State aid No C 30/2005 (ex N 78/2004) — Restructuring aid to KG Holding N.V. — Invitation to submit comments pursuant to Article 88(2) of the EC Treaty (OJ 2005 C 280, p. 2).

26.5.2007

Official Journal of the European Union

C 117/25

Action brought on 14 March 2007 — Kliq Reïntegratie (in liquidation) v Commission

(Case T-83/07)

(2007/C 117/39)

Language of the case: Dutch

Parties

Applicant: Jean Leon Marcel Groenewegen, acting in his capacity as receiver in the liquidation proceedings relating to Kliq Reïntegratie B.V., a private company with limited liability (Amersfoort, Netherlands) (represented by: G. van der Wal and T. Boesman, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the Commission's decision of 19 July 2006 in Case C 30/2005;

—	order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant is challenging Commission Decision 2006/939/EC of 19 July 2006 on the aid measure notified by the Netherlands for KG Holding NV (1).

The aid measure mentioned related to restructuring aid which the Netherlands wished to grant to KG Holding NV by converting a previously approved rescue loan and the interest payable thereon into equity capital. In the contested decision, the Commission declares the aid measure, in the form of restructuring aid, to be incompatible with the common market.

The Commission also rules that the Netherlands must recover from KG Holding NV and its subsidiary Kliq BV that portion of the aid which KG Holding NV transferred to Kliq BV as a rescue loan and which was converted into equity capital, and that the Netherlands must register with the receiver their claim against KG Holding NV and/or Kliq Reïntegratie as a creditor in the liquidation proceedings.

The applicant submits in this regard that the Netherlands State has no claim against Kliq Reïntegratie. Furthermore, Kliq Reïntegratie is not an undertaking which was a recipient of State aid and is also not described as such by the Commission in the contested decision. There is therefore, it is contended, no basis for any recovery by the State against Kliq Reïntegratie or for the application to Kliq Reïntegratie of, in particular, point 23(d) of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (2).

It is also, the applicant contends, unclear whether the Commission concluded in the contested decision, in regard to Kliq Reïntegratie, that there was unlawful aid in the amount of EUR 35.75 million that had to be claimed back by the Netherlands or whether what was in issue was rescue aid which the Commission approved in the contested decision on the basis of point 23(d) of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (3). Further, it is alleged that the Commission, in its decision of 16 December 2003 (4), had agreed that this amount was to be used to finance the redundancies of staff members and the redemption of the redundant contracts of Kliq Reïntegratie, and that Kliq Reïntegratie was thereafter to be placed in liquidation.

The applicant submits, second, that the Commission wrongly failed to establish that the alleged aid might be liable to have an adverse effect on competition and trade between Member States; at any rate, the Commission's findings in this regard are inadequately reasoned.

Third, it is submitted that the Commission erred in finding that the alleged aid of EUR 35.75 million had to be recovered from KG Holding and/or Kliq Reïntegratie by registering those claims in the liquidation proceedings. By reason of the liquidation of KG Holding, Kliq Reïntegratie and Kliq BV, recovery of the amounts of alleged aid will, it is argued, be definitively impossible and would in any event be pointless in the sense that recovery through registration in the liquidation proceedings relating to those companies is unnecessary and, indeed, entirely superfluous for the purpose of putting an end to the distortion of competition.

Fourth, it is argued that the Commission erred in its statements and findings in law with regard to a current-account credit facility of EUR 17 million which had already been provided by the Netherlands to KG Holding when the latter was established and was in accordance with the rules on State aid, and which did not form part of the measure under examination in the contested decision.

(1) OJ 2006 L 366, p. 40.

(2) OJ 1999 C 288, p. 2.

(3) OJ 1999 C 288, p. 2.

(4) Aid measure N 510/2003 — Rescue aid for Kliq Holding NV (OJ 2004 C 33, p. 8).

26.5.2007

Official Journal of the European Union

C 117/26

Action brought on 13 March 2007 — Mineral and Chemical Company ‘EuroChem ’v Council

(Case T-84/07)

(2007/C 117/40)

Language of the case: English

Parties

Applicant: Open Joint Stock Company Mineral and Chemical Company ‘EuroChem ’(Moscow, Russia) (represented by: P. Vander Schueren and B. Evtimov, lawyers)

Defendant: Council of the European Union

Form of order sought

—	Annul the contested regulation, and in particular Article 1 thereof, insofar as it concerns the applicant and its related companies specified in recital 14(a) and (b) of the contested regulation; and

—	order the defendant to pay the costs of and occasioned by these proceedings.

Pleas in law and main arguments

The applicant, who is a Russian producer and exporter of solutions of urea and ammonium nitrate, seeks the annulment of Council Regulation (EC) No 1911/2006 of 19 December 2006 imposing a definitive anti-dumping duty on imports of solutions of urea and ammonium nitrate originating in Algeria, Belarus, Russia and Ukraine following an expiry review pursuant to Article 11(2) of Regulation (EC) No 384/96 (1).

In support of its application, the applicant submits that the Community institutions established the normal value for the applicant wrongly and made a wrong comparison with the export price and hence made an erroneous finding of dumping. The Community institutions thereby committed a series of manifest errors of assessment and violated fundamental principles of Community law.

Furthermore, the applicant claims that the Community institutions violated Article 11(1) and (3) of the Basic Regulation (2) by failing to carry out an interim review in conjunction with the expiry review under Article 11(2) of the Basic Regulation and by adopting the contested regulation extending the duties at their original level, whilst having had the duty and the possibility to initiate an interim review either ex-officio or pursuant to sufficient evidence provided by the applicant.

(1) OJ 2006 L 365, p. 26.

(2) Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).

26.5.2007

Official Journal of the European Union

C 117/26

Action brought on 20 March 2007 — Gabel Industria Tessile v OHIM — Creaciones Garel (GABEL)

(Case T-85/07)

(2007/C 117/41)

Language in which the application was lodged: Italian

Parties

Applicant: Gabel Industria Tessile S.p.A. (Rovellasca, Italy) (represented by: A. Petruzzelli, Avvocato)

Defendant: Office for Harmonisation in the Internal Market (OHIM)

Other party to the proceedings before the Board of Appeal of OHIM: Creaciones Garel S.A.

Form of order sought

The applicant claims that the Court should:

—	annul, in part, the decision of the Second Board of Appeal of 25 January 2007, notified on 29 January 2007, in so far as it refused registration of the Community trade mark applied for — Gabel — under No 3754777 in class 24, since it does not comply with Article 8(1)(b) of Regulation 40/94;

—	uphold the decision of the Second Board of Appeal to proceed with registration of the mark for ‘bath-robes ’in class 25;

—	order OHIM to register GABEL as Community trade mark No 3754777 in class 24, for the relevant goods specified in that class, as well as for ‘bath-robes ’in class 25;

—	order OHIM to pay all the applicant's costs.

Pleas in law and main arguments

Applicant for a Community trade mark: The applicant.

Community trade mark concerned: Word mark ‘GABEL ’(application for registration No 3754777) for goods in classes 24 and 25.

Proprietor of the mark or sign cited in the opposition proceedings: Creaciones Garel S.A.

Mark or sign cited in opposition: Community figurative mark ‘GAREL ’for goods in classes 24, 25 and 26.

Decision of the Opposition Division: Opposition upheld.

Decision of the Board of Appeal: Appeal allowed in part, to the extent that registration of the trade mark is allowed for ‘bath-robes ’(class 25).

Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 on the Community trade mark.

26.5.2007

Official Journal of the European Union

C 117/27

Action brought on 21 March 2007 — Deichmann-Schuhe v OHIM — Design for Woman (DEITECH)

(Case T-86/07)

(2007/C 117/42)

Language in which the application was lodged: German

Parties

Applicant: Heinrich Deichmann-Schuhe GmbH & Co. KG (Essen, Germany) (represented by: O. Rauscher, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal of OHIM: Design for Woman SA

Form of order sought

The applicant claims that the Court should:

—	set aside the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 January 2007 (case number R 791/2006-2);

—	reject Community trade mark application No 3 378 643 as regards all goods in Class 25 (Clothing, footwear, headgear);

—	order the Office for Harmonisation in the Internal Market to pay the costs.

Pleas in law and main arguments

Applicant for a Community trade mark: Design for Woman SA

Community trade mark concerned: The figurative mark ‘DEITECH ’for goods in Classes 18 and 25 (Application No 3 378 643)

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited in opposition: The German figurative mark ‘DEI-tex ’for goods in Class 25 and the international figurative mark ‘DEI-tex ’for goods in Class 25, the opposition having been brought against registration in Class 25

Decision of the Opposition Division: Rejection of the opposition

Decision of the Board of Appeal: Dismissal of the appeal

Pleas in law: Infringement of Article 43(2) and (3) of Regulation (EC) No 40/94 (1), as the evidence submitted by the applicant was not regarded as sufficient proof of genuine use and infringement of Article 8(1)(b) of Regulation No 40/94 as there is a likelihood of confusion between the marks in opposition.

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

26.5.2007

Official Journal of the European Union

C 117/27

Action brought on 22 March 2007 — Scil Proteins v OHIM — Indena (affilene)

(Case T-87/07)

(2007/C 117/43)

Language in which the application was lodged: English

Parties

Applicant: Scil Proteins GmbH (Halle, Germany) (represented by: V. Dalichau, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Indena SpA (Milan, Italy)

Form of order sought

—

The decision of the Second Board of Appeal of the defendant dated 23 January 2006, and the decision-corrigendum of the Second Board of Appeal of 31 January 2007, Case R 10/2006-2 be annulled as far as the opposition is dismissed with respect to the goods ‘extracts of medical plants for use in the … cosmetic and food industries, not for diagnostic purposes’;

—	the costs of the proceedings be borne by the defendant.

Pleas in law and main arguments

Applicant for the Community trade mark: Indena SpA

Community trade mark concerned: The figurative mark ‘affilene ’for goods in class 1 — application No 2 751 931

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The Community word mark ‘AFFILIN ’for goods in classes 1 and 5

Decision of the Opposition Division: Opposition upheld in its entirety

Decision of the Board of Appeal: Opposition upheld partially

Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 40/94 since the trade marks in question are confusingly similar also with regard to the goods for which the registration was allowed to proceed by the Board of Appeal.

26.5.2007

Official Journal of the European Union

C 117/28

Action brought on 22 March 2007 — Fabryka Samochodów Osobowych v Commission

(Case T-88/07)

(2007/C 117/44)

Language of the case: Polish

Parties:

Applicant: Fabryka Samochodów Osobowych S.A. (Warsaw, Republic of Poland) (represented by: W. Radzikowski, R.A. Kozłowski and G. Dźwigała, lawyers)

Defendant: Commission of the European Communities

Form of order sought:

—

declare invalid the Commission's decision in so far as concerns Article 2(2), (3) and (4) introducing compensatory measures in the form of: (a) limiting up to the end of February 2011 annual motor-car production by FSO and all of its present and future subsidiaries and all companies controlled by FSO as a shareholder, and (b) a prohibition on applying for new licences up to the end of February 2011;

—	order the Commission to pay the applicant's costs.

Pleas in law and main arguments:

The applicant seeks a declaration of invalidity in regard to the decision of the European Commission of 20 December 2006 in State aid Case No C 3/2005 [ex N 592/2004 (ex. PL 51/2004)] declaring compatible with the common market aid measures which, according to the wording of the decision, have been partially implemented by Poland in favour of the applicant, in so far as that decision imposes on the applicant/aid recipient an obligation to limit the annual production and sale of motor cars within the territory of the EU until 2011. In its grounds the decision also prohibits the applicant from applying for new licences before the end of 2011.

In its application for a declaration that the abovementioned decision is invalid, the applicant submits that the decision breaches the provisions of the EC Treaty and essential rules governing its application. The applicant also contends that the contested decision was adopted in a manner which infringed essential procedural requirements.

In support of its action, the applicant sets out the following heads of complaint:

—	in recognising part of the aid as having been implemented, the Commission breached Article 88(3) EC and Article 3 of Council Regulation (EC) No 659/1999 (1) and committed a manifest error in the appraisal of the facts;

—

in defining the scope of the compensatory measures, the Commission infringed the principle of proportionality, the principle of free exercise of economic activity, Article 253 EC and paragraphs 11, 32, 37, 39 and 54 of the Community Guidelines on State aid for rescuing and restructuring firms in difficulty (2), and also committed a manifest error in its appraisal of the facts of the case, in particular by reason of the following: improper determination, in the applicant's view, of the value of the public aid by reason of the fact that that value was exaggerated; failure to take account of the form of the aid; improper definition of the appropriate market; incorrect determination of the market share of the applicant, which was the recipient of the aid; failure to take account of essential elements in determining the effects of granting the aid to the applicant; the establishment of compensatory measures which will have an adverse effect on the applicant's recovery of its capacity to function after restructuring has been completed; and also failure to take account of the fact that the applicant operated in regions that were entitled to receive regional aid;

—	the Commission infringed the principle of legal certainty and Article 253 EC by introducing into the grounds of the decision an additional compensatory measure which had not been defined in the principal grounds (petitum) of the decision;

—	by not providing adequate clarification as to the nature and scope of the compensatory measures imposed, and by not referring to all the proposals notified in that matter, the Commission breached Article 253 EC.

(1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).

(2) OJ 1999 C 288, p. 2.

26.5.2007

Official Journal of the European Union

C 117/29

Action brought on 23 March 2007 — VIP Car Solutions v Parliament

(Case T-89/07)

(2007/C 117/45)

Language of the case: French

Parties

Applicant: VIP Car Solutions (Hoenheim, France) (represented by G. Welzer, lawyer)

Defendant: European Parliament

Form of order sought

The Court is asked to:

—	annul the decision of the European Parliament not to award the contract PE/2006/06/UTD/1 — transport for Members of the European Parliament during sessions in Strasbourg, notified on 24 January 2007;

—	annul all subsequent acts;

—	order the Parliament to pay the sum of EUR 500 000 as damages;

—	order the Parliament to pay the costs of the legal proceedings;

—	order the Parliament to pay one-off costs amounting to EUR 5 000

Pleas in law and main arguments

The applicant challenges the decision of the European Parliament rejecting its tender in tender procedure PE/2006/06/UTD/1 — transport for Members of the European Parliament during sessions in Strasbourg (1).

In support of its action, the applicant relies, first, on an infringement of the award criteria contained in the call for tenders, particularly, concerning price inasmuch as it claims to have offered the lowest price and that that criteria should have accounted for 55 % in the award of the contract.

Moreover, the applicant asserts that the contested decision breached Article 100 of the Financial Regulation (2), under which certain details need not be disclosed where disclosure would harm the legitimate business interests of private undertakings or could distort fair competition between those undertakings. According to the applicant, the information which it requested, namely the price offered by the successful tenderer, does not fall within the scope of the Article and, consequently, the refusal to disclose it to the applicant is improper.

(1) Contract notice ‘Chauffeur-driven car and minibus service for Members of the European Parliament during part sessions in Strasbourg’, OJ 2006 S 177-187988.

(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities.

26.5.2007

Official Journal of the European Union

C 117/29

Appeal brought on 26 March 2007 by the Kingdom of Belgium against the judgment of the Civil Service Tribunal delivered on 16 March 2007 in Case F-92/05, Genette v Commission

(Case T-90/07 P)

(2007/C 117/46)

Language of the case: French

Parties

Appellant: Kingdom of Belgium (represented by L. Van den Broeck, Agent)

Other parties to the proceedings: Emmanuel Genette, Commission of the European Communities

Form of order sought by the appellant

—	annul the judgment of the Civil Service Tribunal of 16 January 2007 in Case F-92/05

Pleas in law and main arguments

By judgment of 16 January 2007 in Case F-92/05 Genette v Commission, the Civil Service Tribunal upheld the action brought by Mr Genette concerning the annulment of the decision of the Commission of 25 January 2005 refusing, first, to authorise him to withdraw his application for the transfer of his pension rights acquired under Belgian pension schemes, brought in 2001 and, second, to authorise him to ask for a new transfer.

In support of its appeal, the Kingdom of Belgium, as intervener at first instance in support of the forms of order sought by the Commission, asserts at the outset that the Civil Service Tribunal does not have jurisdiction to assess the admissibility under Belgian law of a application to withdraw an application for the transfer to the Community system of pension rights acquired in Belgian pension schemes. According to the appellant, the Civil Service Tribunal acted ultra vires in ruling on the significance of provisions of Belgian national law which may be applicable in the present case.

Secondly, the Kingdom of Belgium asserts that the Civil Service Tribunal breached Community law, and in particular the provisions of the Staff Regulations, in its assessment of the admissibility of the introduction of a new transfer application.

Moreover, the Kingdom of Belgium asserts that the Civil Service Tribunal breached Community law by its erroneous assessment of the existence of a new fact which, according to the Kingdom of Belgium, should not be assessed in relation to the entry into force of the reform of the Staff Regulations, but in the light of the provisions of Belgian law.

Finally, the Kingdom of Belgium relies on a plea in law alleging breach of the principle of legal certainty.

26.5.2007

Official Journal of the European Union

C 117/30

Action brought on 19 march 2007 — WWF-UK v Council

(Case T-91/07)

(2007/C 117/47)

Language of the case: English

Parties

Applicant: WWF-UK Ltd (Godalming, United Kingdom) (represented by: P. Sands, QC, J. Simor, Barrister, R. Stein, Solicitor)

Defendant: Council of the European Union

Form of order sought

—	Annulment of the TACs adopted in Council Regulation No 41/2006 in respect of cod in the zones covered by Council Regulation No 423/2004 establishing measures for the recovery of cod stocks;

—	that the above provisions should nevertheless continue to have effect until replaced by a new measure;

—	that the Council pay the costs of this application.

Pleas in law and main arguments

This application is brought under Article 230 EC in respect of the total allowable catches (‘TACs’) for 2007 adopted by the Council under Regulation No 41/2006 (1) (‘the TACs regulation’) for cod in zones covered by Council Regulation No 423/2004 establishing measures for the recovery of cod stocks (2) (‘the Cod Recovery Plan’), following the Commission's proposal of 5 December 2006 (3).

In summary, the applicant submits that the Council has committed a manifest error of law in failing to adopt zero TACs, which it claims is, according to the relevant scientific advice, necessary if stocks are to increase from current levels, where they are at serious risk of collapse and ever return to safe biological limits:

First, the applicant claims that the relevant TACs are unlawful as they have not been set in accordance with the requirements of the Cod Recovery Plan. Moreover, according to the applicant's submissions, both the Council and the Commission appear to have relied on Article 20 of the Regulation No 2371/2002 (4) (‘the 2002 regulation’) in the adoption of the relevant TACs rather than on the Cod Recovery Plan.

Second, the applicant contends that the relevant TACs are unlawful because they do not comply with the precautionary principle as required by the Cod Recovery Plan, Articles 5(3), 4 and 2(1) of the 2002 Regulation, the Common Fisheries Policy, Article 174 EC and Articles 5 and 6 of the UN 1995 Agreement.

Third, the applicant claims that the adoption of the relevant TACs is irrational in that the latter have been set at a level where, according to all scientific evidence available, the stocks will either remain at levels where they are at serious risk of collapse or collapse.

Fourth, according to the applicant, the Council misused its powers by adopting TACs at levels intended to meet political and economic objectives, rather than at the levels necessary to meet the relevant objective of the Cod Recovery Plan, which is to increase cod stocks within one year, or the shortest period of time thereafter, above levels where they are at serious risk of collapse.

Furthermore, the applicant contends that should the Cod Recovery Plan not allow for the setting of a zero TAC, the plan in itself would be unlawful since it would not comply with the precautionary principle.

In addition, the applicant claims that the Council erred in law in not treating cod stocks in ICES (International Council for the Exploration of the Sea) zone VII(d) as covered by the Cod Recovery Plan.

(1) Council Regulation No 41/2006 of 21 December 2006 fixing for 2007 fishing opportunities and associated conditions for certain fish stocks and groups of fish stocks, applicable in Community waters and, for Community vessels, in waters where catch limitations are required (OJ 2007 L 15, p. 1).

(2) OJ 2004 L 70, p. 8.

(3) COM (2006) 774.

(4) Council Regulation (EC) No 2371/2002 of 20 December 2002 on the conservation and sustainable exploitation of fisheries resources under the Common Fisheries Policy (OJ 2002 L 358, p. 59).

26.5.2007

Official Journal of the European Union

C 117/31

Appeal brought on 28 March 2007 by Jacques Frankin and Others against the judgment of the Civil Service Tribunal delivered on 16 January 2007 in Case F-3/06 Jacques Frankin and Others v Commission

(Case T-92/07 P)

(2007/C 117/48)

Language of the case: French

Parties

Appellants: Jacques Frankin (Sorée, Belgium) and 482 other appellants (represented by F. Frabetti, lawyer)

Other party to the proceedings: Commission of the European Communities

Form of order sought by the appellant

—	set aside the judgment of the Civil Service Tribunal of 16 January 2007 in Case F-3/06 principally concerning an action for annulment of an express decision of 10 June 2005 by which the Commission refused to grant the appellants assistance under Article 24 of the Staff Regulations;

—	make an order as to the costs, fees and expenses and order the Commission to pay them.

Pleas in law and main arguments

In support of their action, the appellants assert that by dismissing their action at first instance, the Civil Service Tribunal erred in law when examining the pleas in law relied on at first instance, alleging, first, infringement of Article 24 of the Staff Regulations and from the duty to have regard to the welfare of officials and, second, breach of the principle of non-discrimination.

26.5.2007

Official Journal of the European Union

C 117/31

Action brought on 22 March 2007 — Italy v Commission

(Case T-93/07)

(2007/C 117/49)

Language of the case: Italian

Parties

Applicant: Italian Republic (represented by: P. Gentili, Avvocato dello Stato)

Defendant: Commission of the European Communities

Form of order sought

The applicant claims that the Court should:

—

annul Memorandum No 175 of 11.1.2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref: Programma POR Sicilia (No CCI 1999 IT 161 PO 011);

—

annul Memorandum No 234 of 12.1.2007 of the European Commission, Directorate General for Regional Policy — Programmes and projects in Cyprus, Greece, Hungary, Italy, Malta and the Netherlands — concerning payments made by the Commission which differ from the amount requested. Ref: Programma POR Sicilia (No CCI 1999 IT 161 PO 011);

—	annul all connected and prior acts and, consequently, order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments

The pleas in law and main arguments are similar to those relied upon in Case T-345/04 Italian Republic v Commission (1).

(1) OJ C 262 of 23.10.2004, p. 55.

26.5.2007

Official Journal of the European Union

C 117/31

Action brought on 26 March 2007 — EREF v Commission

(Case T-94/07)

(2007/C 117/50)

Language of the case: English

Parties

Applicant: European Renewable Energies Federation (EREF) ASBL (Brussels, Belgium) (represented by: D. Fouquet, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—	The decision K(2006) 4963 final of the European Commission, dating from 24 October 2006, is declared null and void;

—	the Financial Vehicle in question in its present shape and structure is declared unlawful state aid.

—	Alternatively, the Commission is ordered to open a formal investigation procedure pursuant to Article 88(2) EC for Case NN 62/B/2006.

—	The European Commission is ordered to pay all procedural costs, including the costs of the claimant.

Pleas in law and main arguments

In 2004 the applicant filed a complaint with the Commission claiming among others that different aspects of the financement of a new nuclear power plant under construction in Finland was state aid that had not been notified. In 2006, the Commission split the file into two cases numbered NN 62/A/2006 and NN 62/B/2006.

In the present case, the applicant seeks the annulment of Commission Decision C(2006) 4963 final, which concerns state aid Case NN 62/B/2006, by which the Commission found that a credit facility granted by a consortium of five banks and a loan granted by AB Svensk Exportkredit (‘SEK’) did not constitute aid within the meaning of Article 87(1) EC.

The applicant submits that the Commission's split of the file into two separate cases is unlawful from a procedural as well as a substantive point of view. According to the applicant, it was only possible to give the credit facility and the loan at such a low interest rate because of a guarantee from the French export credit insurance agency COFACE. However, the state aid aspects of COFACE's involvement were dealt with under Case NN 62/A/2006. The applicant therefore claims that the splitting up of the file into two separate cases thus taking the guarantee element out of Case NN 62/B/2006 lead the Commission to the misunderstanding that the granting of the credit facility and the SEK loan at such a low interest rate could not constitute state aid simply because the participating banks were, according to the Commission, privately owned.

Moreover, the applicant submits that even disregarding the guarantee from COFACE the credit facility as well as the loan granted by SEK constitutes state aid since:

—	the credit facility was granted at a low interest rate with the participation of the banks BLB and BNP Paribas, which the applicant alleges are both public banks; and

—	the loan from SEK was given by a 100 % state owned bank at an interest rate below market conditions.

Finally, the applicant invokes a lack of reasoning and a manifest error of assessment.

26.5.2007

Official Journal of the European Union

C 117/32

Action brought on 30 March 2007 — Aventis Pharma v OHIM — Altana Pharma (PRAZOL)

(Case T-95/07)

(2007/C 117/51)

Language in which the application was lodged: English

Parties

Applicant: Aventis Pharma SA (Antony, France) (represented by: R. Gilbey, lawyer)

Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

Other party to the proceedings before the Board of Appeal: Altana Pharma AG (Konstanz, Germany)

Form of order sought

—	Annul the decision of the Fourth Board of Appeal OHIM dated 8 February 2007 Case R 302/2005-4 and confirm the decision of the Opposition Division of 26 January 2005;

—	order the Office for Harmonisation in the Internal Market to bear the costs of the appellant in the present instance.

Pleas in law and main arguments

Applicant for the Community trade mark: Altana Pharma AG

Community trade mark concerned: The word mark ‘PRAZOL ’for goods in class 5 — application No 1 154 269

Proprietor of the mark or sign cited in the opposition proceedings: The applicant

Mark or sign cited: The national word mark ‘PREZAL ’for goods in class 5

Decision of the Opposition Division: Opposition upheld

Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition

Pleas in law: The Board of Appeal failed to compare the marks globally taking all relevant factors into account.

26.5.2007

Official Journal of the European Union

C 117/32

Action brought on 23 March 2007 — Telecom Italia Media v Commission

(Case T-96/07)

(2007/C 117/52)

Language of the case: Italian

Parties

Applicant: Telecom Italia Media S.p.A. (Rome, Italy) (represented by: F. Bassan and S. Venturini, avvocati)

Defendant: Commission of the European Communities

Forms of order sought

The applicant claims that the Court should:

—	annul the Commission's decision (C(2006) 6634 final) of 24 January 2007 relating to State aid C 52/2005 (ex NN88/2005, ex CP 101/2004), together with all prior, consequent and connected acts;

—	in the alternative, annul the Commission's decision (C(2006) 6634 final) in so far as it imposes on the Italian State a duty to recover the aid in accordance with the detailed rules set out therein;

—	in any case, order the Commission to pay the costs. With all consequences of law.

Pleas in law and main arguments

The present application contests the Commission's decision finding that the State aid providing subsidies for the purchase of digital decoders, introduced by the Italian Government for the years 2004 and 2005, is unlawful. It is emphasised in that regard that, by decision of the same date, the subsidies planned for the year 2006 for the purchase of digital decoders with open APIs (application program interfaces) was found to be lawful pursuant to Article 87(c) of the EC Treaty.

According to the applicant, the difference between the lawful aid of the year 2006 and the unlawful aid of the years 2004 and 2005 lies in the fact that the latter expressly exclude financing for satellite TV decoders — which is thus excluded de iuris — whereas in the context of the 2006 aid it is excluded only de facto as a consequence of being the decoder chosen by the ‘closed ’SKY monopolistic platform.

In support of the forms of order sought, the applicant alleges:

—

Error of assessment by the defendant. On that point it is argued that:

—	the measure was needed in order to accelerate the transition to digital: the deadline fixed by law for the switch off (2006) was not (and, in any case, could not reasonably be regarded as such) peremptory.

—

the measure was not designed to take the place of an initiative that the broadcasters would have taken in any event. In fact, the broadcasters — by reason of the particular characteristics of the terrestrial digital market — had no interest in funding purchase of the decoders, because:

(i)	they are not vertically integrated with the producers of software or decoders;

(ii)	they do not have a business model based on monthly subscription payments, which enables the funding to be recovered over time;

(iii)

the terrestrial decoder can accept cards from a number of operators, in competition with one another;

—

the measure did not discriminate against satellite broadcasters, for two reasons. In the first place, because such broadcasters operate on a different market, mistakenly classed as single by the Commission. Secondly, because those broadcasters were already excluded de facto, since they had already — at the time of SKY (a monopolistic platform in Italy for satellite TV) — opted for a proprietary platform which uses a closed standard, and which does not therefore deserve support, in accordance with the position established by the Commission in the decision relating to the 2006 measure.

—

the period taken into consideration for the calculation of the effects of the measure on the market cannot be the full temporal arc spanning the years 2004 and 2005, since TIMedia advertised and marketed the first pay per view offer on the terrestrial digital market on 22 January 2005. As regards the dies ad quem, significance cannot but be attributed to the fact that, with effect from 1 September 2005, the subsidy was accorded to consumers only in the all digital areas or in the regions (Val D'Aosta and Sardinia) for which provision had been made for the transition to be completed ahead of time. The subsidy was limited at both the operational level and the territorial level. TIMedia could refund the aid, in that it has not generated additional profits in the relevant period. The costs are in fact higher than the revenue, as is normally the case during a start up phase. Besides, the Commission requires the quantification of the recovery to be determined on the basis of the additional profits generated by the extra viewers that the measure has attracted to pay per view terrestrial digital TV. Those profits are to be calculated by multiplying the average revenue from users by the estimated number of additional users. In truth, the additional profits are calculated by subtracting the additional costs from the additional revenues (not from the average revenue). The revenue generated by the additional user — who is rarely inclined to purchase pay per view events — is lower than the revenue generated by the user average.

—

Infringement and misapplication of Articles 87(1) and 87(3)(c) of the EC Treaty in so far as the Commission has not shown that the measure distorts or threatens to distort competition, and accordingly constitutes State aid for the purposes of Article 87(1). Nor has the Commission shown how it can be possible that the exemption provided for in Article 87(3) applies to producers of decoders, but not also to television broadcasting networks, the latter being also, indirectly, beneficiaries which make use of those decoders.

—

Internal inconsistency and inherent irrationality of the contested decision. On that point, it is emphasised that in the view of the Commission the measure is selective, referring only to certain indirect beneficiaries (the television broadcasting networks) and not to others (the decoder producers).

26.5.2007

Official Journal of the European Union

C 117/34

Appeal brought on 29 March 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 16 January 2007 in Case F-92/05, Genette v Commission

(Case T-99/07 P)

(2007/C 117/53)

Language of the case: French

Parties

Appellant: Commission of the European Communities (represented by V. Joris and D. Martin, Agents)

Other party to the proceedings: Emmanuel Genette, Kingdom of Belgium

Form of order sought by the appellant

—	annulment of the judgment of the Civil Service Tribunal of 16 January 2007 in Case F-92/05;

—	a declaration that the action is inadmissible;

—	a decision that each of the parties is to bear its own costs in these proceedings and those brought before the Civil Service Tribunal.

Pleas in law and main arguments

By judgment of 16 January 2007 in Case F-92/05 Genette v Commission, the Civil Service Tribunal (CST) upheld the action brought by Mr Genette for the annulment of the Commission decision of 25 January 2005 denying him, first, authorisation to withdraw the application for the transfer of his pension rights acquired in Belgian pension schemes, which he submitted in 2001, and, secondly, authorisation to apply for a fresh transfer of his pension rights.

In its appeal, the Commission first raises the issue of the admissibility of the initial action. It submits that the Court of First Instance ruled ultra petita, by changing the subject-matter of the dispute, and that it made errors of assessment in its examination of the alleged new facts on which the applicant at first instance relied in order to justify the time-limits being re-opened for its benefit. The Commission maintains that, if the CST had correctly assessed both the subject-matter of the proceedings as defined in the application at first instance and the alleged new facts relied on by the applicant, it would have been bound to declare the action inadmissible. The Commission therefore claims that the CST exceeded the limits of its jurisdiction and that it also infringed its rights of defence, since it ruled on several issues without allowing the Commission to submit its arguments.

In support of its appeal in respect of the assessment of the substance of the case made by the CST in the judgment under appeal, the Commission puts forward several pleas alleging the CST's infringement of various provisions of Community law, in particular of the Staff Regulations, and principles of case-law, in so far as the judgment under appeal allows, in its opinion, the withdrawal of legal measures and, in the alternative, infringes the Commission's independent right not to withdraw contested decisions.

26.5.2007

Official Journal of the European Union

C 117/35

Action brought on 23 February 2007 — Pouzol v Court of Auditors

(Case F-17/07)

(2007/C 117/54)

Language of the case: French

Parties

Applicant: Michel Pouzol (Chemin des Peyridisses, France) (represented by: D. Grisay, I. Andoulsi and D. Piccininno, lawyers)

Defendant: European Court of Auditors

Form of order sought

—	annul the decision of the Court of Auditors of 23 November 2006 and the decision of the Commission of the European Communities of 18 May 2006;

—	grant the applicant a supplementary premium in his years of pensionable service of 6 years, 10 months and 1 day, that is, an overall premium in the years of pensionable service of 10 years, 3 months and 24 days;

—	order the Court of Auditors to translate that premium in the years of pensionable service into a pension supplement for the applicant of EUR 1 232,32 per month;

—	order the Court of Auditors to pay compensation for the financial loss suffered by the applicant, assessed at the date when this application was lodged to be EUR 17 252,48 (that is, a shortfall for the applicant of EUR 1 232,32 per month, from his retirement on 1 January 2006, until 1 March 2007);

—	order the Court of Auditors to pay compensation for the non-material harm suffered by the applicant over more than 13 years, the amount of damages to be established subsequently in an amicable settlement between the parties;

—	order the Court of Auditors to pay the costs.

Pleas in law and main arguments

The applicant, a former Court of Auditors official now retired, disputes in particular the calculation of the transfer of the pension rights which he had acquired in France to the Community scheme, in so far as that calculation does not take into account pension rights acquired from the Association des régimes de retraites complémentaires (Association of Supplementary Pension Schemes) (ARRCO) and the Association générale des institutions de retraite des cadres (General Association of Pension Institutions for Managerial Staff) (AGIRC).

In support of his action, the applicant is putting forward four pleas alleging, respectively: (i) the infringement of a number of provisions of the Staff Regulations of Officials and Annex VIII thereto (in particular, of Article 11(2) and Article 26 of that annex); (ii) breach of the duty to have regard for the welfare of officials and the duty to provide assistance referred to in Article 24 of the Staff Regulations of Officials; (iii) infringement of the principle of equal treatment and non-discrimination; (iv) infringement of the principle of the protection of legitimate expectations.

26.5.2007

Official Journal of the European Union

C 117/35

Action brought on 19 March 2007 — M v EMEA

(Case F-23/07)

(2007/C 117/55)

Language of the case: French

Parties

Applicant: M (Broxbourne, United Kingdom) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Agency for the Evaluation of Medicinal Products (EMEA)

Form of order sought

—	Annul the decision of 25 October 2006 by which the Executive Director of the EMEA refused the applicant's request for referral to the Invalidity Committee;

—	Order the EMEA to pay to the applicant the sum of EUR 100 000 by way of damages for breach of administrative duty;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

On 17 March 2005, the applicant, a member of temporary staff with the EMEA, suffered an accident at work, as a result of which it is alleged that he became incapable of doing his job. On 14 February 2006, he was informed that his contract would not be renewed beyond 15 October 2006. His request for referral to the Invalidity Committee was rejected.

In support of his action, the applicant relies in particular on the breach of the first paragraph of Article 31 and the first paragraph of Article 33 of the Conditions of Employment of Other Servants (CEOS), as interpreted by the Civil Service Tribunal in its judgment of 16 January 2007 in Case F-119/05 Gesner v OHIM (not yet published in the ECR).

26.5.2007

Official Journal of the European Union

C 117/36

Action brought on 15 March 2007 — Lafleur-Tighe v Commission

(Case F-24/07)

(2007/C 117/56)

Language of the case: French

Parties

Applicant: Virgine Lafleur-Tighe (Makati, Philippines) (represented by S. Rodrigues and C. Bernard-Glanz, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the decision of the Appointing Authority to classify the applicant in grade 13, step 1 at the date of his recruitment as a contract agent, entailed by the employment contract signed on 22 December 2005;

—

indicate to the Appointing Authority the effects of the annulment of the contested decision and, in particular, of the recognition of the applicant's professional experience from 16 November 1993, the date he obtained his bachelor's degree, and his reclassification in grade 14, with retroactive effect from 22 December 2005;

—	Order the defendant to pay the costs.

Pleas in law and main arguments

The applicant, in addition to relying on the pleas in law very similar to those which she raised in Case F-135/06 (1), claims, in particular, that there has been a breach of the principle of free movement in respect of degrees and professional qualifications.

(1) OJ C 236, 30.12.2006, p. 87.

26.5.2007

Official Journal of the European Union

C 117/36

Action brought on 22 March 2007 — Bleser v Court of Justice

(Case F-25/07)

(2007/C 117/57)

Language of the case: German

Parties

Applicant: Thomas Bleser (Nittel, Germany) (represented by: P. Goergen, lawyer)

Defendant: Court of Justice of the European Communities

Form of order sought

—	Annulment of the applicant's classification in the grade allocated to him in the decision of 16 March 2006 regarding his appointment;

—	Annulment of Articles 2 and 13 in Appendix XIII and of Article 32 of the Staff Regulations which entered into force on 1 May 2004;

—	Classification of the applicant in the grade which was published in the notice of competition or in the grade which corresponds to it according to the classifications of the new Staff Regulations (and in the corresponding step according to the provisions which were applicable before 1 May 2004);

—	Award of damages in the amount corresponding to the difference in remuneration;

—	Award of damages in the amount of EUR 10 000 in respect of the non-material damage suffered;

—	Order the Court of Justice to pay the costs.

Pleas in law and main arguments

The action is essentially brought against the provisions of Articles 2 and 13 in Appendix XIII and of Article 32 of the Staff Regulations of Officials of the European Communities which entered into force on 1 May 2004.

The applicant submits that his classification should have been carried out under the Staff Regulations which were in force at the time when he sat the selections tests and were more favourable to him. In support of his action, he claims that his classification infringed the principle of equality, the principle of non-discrimination and the prohibition of discrimination based on age.

In addition, the applicant submits that there has been infringement of the general principles of Community law, in particular of the duty to have regard for the welfare of officials and the principle of sound administration, the principle of transparency, the principle of protection of legitimate expectations, the principle of legal certainty, the principle of good faith, the prohibition on reformatio in pejus (prohibition on deterioration) and the principle of the right to a fair hearing.

26.5.2007

Official Journal of the European Union

C 117/37

Action brought on 21 March 2007 — Potoms and Scillia v Parliament

(Case F-26/07)

(2007/C 117/58)

Language of the case: French

Parties

Applicants: Gerrit Potoms (Mechelen, Belgium) and Mario Scillia (Brussels, Belgium) (both represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

—	declare that Articles 5 and 12 of Annex XIII of the Staff Regulations are unlawful;

—	annul the individual decisions appointing the applicants to an administrator post inasmuch as they determine their classification pursuant to article 5(2) of Annex XIII to the Staff Regulations;

—	declare that the implementing measures relating to the awarding of merit and promotion points are unlawful inasmuch as they provide for the cancellation of merit and promotion points on transfer from one function group to another;

—	annul the individual decisions to cancel the merit and promotion points accumulated by the applicants in their former category;

—	annul the individual decisions to apply a multiplier lower than 1 to determine the applicants' remuneration;

—	order the defendant to pay the costs.

Pleas in law and main arguments

The applicants assert pleas in law very similar to those relied on in Case F-31/06 (1)

(1) OJ C 131 of 3.6.2006, p. 50.

26.5.2007

Official Journal of the European Union

C 117/37

Action brought on 26 March 2007 — Sundholm v Commission

(Case F-27/07)

(2007/C 117/59)

Language of the case: French

Parties

Applicant: Asa Sundholm (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: Commission of the European Communities

Form of order sought

—	annul the decision of 2 June 2006 establishing the applicant's Career Development Report (CDR) for the period from 1 July 2001 to 31 December 2002, adopted pursuant to the judgment of the Court of First Instance of the European Communities of 20 April 2005 in Case T-86/04 Sundholm v Commission;

—	order the defendant to pay, at that stage of the proceedings, EUR 1 by way of damages for non-material loss;

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of his action, the applicant relies, first, on the breach of Article 233 EC and of the obligation to state reasons inasmuch as it is not possible from the contested decision to know how the grounds of the abovementioned judgment were taken into account.

Moreover, the applicant asserts that the contested decision, first, failed to take into account the aims and objectives pursued by the new Career Development Review System, and, second, is vitiated by inconsistencies between the comments and marks awarded.

Finally, the applicant relies on the breach of the rights of the defence inasmuch as the facts on which his appraisal was based were not disclosed to him either when they were produced or in the context of the appraisal procedure.

26.5.2007

Official Journal of the European Union

C 117/37

Action brought on 28 March 2007 — Quadu v Parliament

(Case F-29/07)

(2007/C 117/60)

Language of the case: French

Parties

Applicant: Sandro Quadu (Brussels, Belgium) (represented by S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

—	annul the decision of the Appointing Authority of 26 April 2006 appointing the applicant as an official of the European Communities inasmuch as it determines his classification in grade AST 2, step 3;

—	order the defendant to pay the costs.

Pleas in law and main arguments

By decision of 26 April 2006, the applicant, at the time a member of temporary staff of the Parliament classified in grade C*4, step 7, and successful candidate in an internal competition for clerical assistants (career bracket C4-5) No C/348, published before the entry into force of Council Regulation (EC, Euratom) No 723/2004 of 22 March 2004 amending the Staff Regulations of officials of the European Communities and the Conditions of Employment of other servants (1), was appointed as an official and classified in grade AST 2, step 3.

In his action, the applicant asserts inter alia breach of the competition notice and of the principle of equality of treatment and of non-discrimination. In particular, he contests the administration's interpretation of Article 5(4) of Annex XIII of the Staff Regulations as meaning that the members of temporary staff who are appointed officials only have the right to retain their former grade and step in cases where the appointment entails promotion to a higher grade.

(1) OJ L 124 of 27.4.2004, p. 1.

26.5.2007

Official Journal of the European Union

C 117/38

Action brought on 28 March 2007 — Noworyta v Parliament

(Case F-30/07)

(2007/C 117/61)

Language of the case: French

Parties

Applicant: Lidia Noworyta (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

Defendant: European Parliament

Form of order sought

—

annulment of the decision of the Appointing Authority of 28 April 2006 rejecting the proposal of the applicant's hierarchical superior of 20 October 2005 to grant her the fixed allowance in respect of overtime worked in special conditions within the meaning of Article 3 of Annex VI to the Staff Regulations or any other allowance, either under Article 56a of 56b of the Staff Regulations

—	an order that the defendant pay the costs.

Pleas in law and main arguments

In support of her action, the applicant pleads first, the infringement of the general principle according to which any worker must have fair working conditions, in particular in terms of working time and compensation or allowances for overtime worked or on account of special arrangements in the organisation of his or her working hours.

More specifically, she submits that, unlike Articles 56a and 56b of the Staff Regulations, Article 3 of Annex VI to the Staff Regulations does not make the granting of a fixed allowance in respect of overtime worked in special conditions subject to the condition that that overtime must be worked on a regular basis. In the applicant's view, the Appointing Authority erred in law by inserting that condition into the internal rules adopted on compensation for overtime.

The Appointing Authority also erred in law by stating that officials recruited as of 1 May 2004 are not entitled to such an allowance, even though that possibility was expressly referred to in Article 1 of the internal rules.

In addition, the applicant claims that the decision to deny her any compensation or allowance in respect of her special conditions of work infringes Article 56a and 56b of the Staff Regulations and the principle of equal treatment.

Lastly, in the applicant's opinion, the Parliament's position is inconsistent, since the Director General of the Directorate General for the Presidency stated that nobody on a telephone switchboard works overtime on a regular basis, while the Appointing Authority for its part claimed that a study was underway in order to examine the possibilities of harmonising working conditions in the department at issue precisely because of the atypical hours worked, which are outside of general/normal working hours.

26.5.2007

Official Journal of the European Union

C 117/38

Action brought on 2 April 2007 — Putterie-de-Beukelaer v Commission

(Case F-31/07)

(2007/C 117/62)

Language of the case: French

Parties

Applicant: Françoise Putterie-de-Beukelaer (XX) (represented by: E. Boigelot, lawyer)

Defendant: Commission of the European Communities

Form of order sought

—

annulment of the applicant's Career Development Report (‘CDR’) concerning the period from 1 January 2005 to 31 December 2005, including appeal procedures and other decisions relating to them, and specifically of section 6.5, ‘Potential’, in so far as it does not accept that the applicant has the potential to carry out functions in category B*;

—	order the defendant to pay the costs.

Pleas in law and main arguments

In support of her appeal, the applicant puts forward, first, the fact that the administration made manifest errors of assessment in so far as it did not accept that she had the potential to carry out functions in category B* for the purpose of the attestation procedure provided for in Article 10(3) of Annex XIII to the Staff Regulations of Officials of the European Communities (‘the Staff Regulations’). In particular, in contrast to what was stated in the applicant's CDR, her duties as head of computer training fall within the scope of category B*.

Secondly, the applicant alleges infringement of Article 26 of the Staff Regulations, of the principles of respect for the rights of the defence, transparency, the audi alteram partem rule and the principle of sound administration of staff. In particular, she submits that some documents used for the purposes of her appraisal were not communicated to her at the appropriate time.

Thirdly, the applicant raises the infringement of Article 25(2) of the Staff Regulations and of the duty to give reasons.

Fourthly, the applicant alleges the infringement of the principle of equal treatment of staff and non-discrimination, in so far as the duties carried out by a head of computer training, she submits, are assessed in different ways for the purposes of the attestation procedure depending on the directorates general and the hierarchical superiors.

		ISSN 1725-2423
Official Journal of the European Union		C 117

English edition	Information and Notices	Volume 50 26 May 2007

Notice No	Contents	page
	IV Notices
	NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES
	Court of Justice
2007/C 117/01	Last publication of the Court of Justice in the Official Journal of the European Union OJ C 95, 28.4.2007	1

	V Announcements
	COURT PROCEEDINGS
	Court of Justice
2007/C 117/02	Case C-71/07 P: Appeal brought on 12 February 2007 by Franco Campoli against the judgment of the Court of First Instance (Second Chamber, Extended Composition) delivered on 29 November 2006 in Case T-135/05 Campoli v Commission	2

2007/C 117/03	Case C-78/07: Reference for a preliminary ruling from the Consiglio di Giustizia Amministrativa per la Regione siciliana (Italy) lodged on 13 February 2007 — Ispettorato Provinciale dell'Agricoltura di Enna, Assessorato all'agricoltura e foreste della regione Sicilia, Regione Sicilia v Domenico Valvo	3

2007/C 117/04	Case C-94/07: Reference for a preliminary ruling from the Arbeitsgericht Bonn (Germany) lodged on 20 February 2007 — Dr Andrea Raccanelli v Max-Planck-Gesellschaft zur Förderung der Wissenschaften e.V.	3

2007/C 117/05	Case C-95/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Genova (Italy) lodged on 20 February 2007 — Ecotrade SpA v Agenzia Entrate Ufficio Genoa 3	4

2007/C 117/06	Case C-96/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Genova (Italy) lodged on 20 February 2007 — Ecotrade SpA v Agenzia Entrate Ufficio Genova 3	4

2007/C 117/07	Case C-112/07: Action brought on 26 February 2007 — Commission of the European Communities v Italian Republic	5

2007/C 117/08	Case C-113/07 P: Appeal brought on 27 February 2007 by Selex Sistemi Integrati S.p.A. against the judgment delivered on 12 December 2006 in Case T-155/04 Selex Sistemi Integrati S.p.A. v Commission of the European Communities	5

2007/C 117/09	Case C-119/07: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt (Germany), lodged on 27 February 2007 — Container Service Thorsten Sperzel GmbH v Land Hessen	6

2007/C 117/10	Case C-125/07 P: Appeal brought on 2 March 2007 by Erste Bank der österreichischen Sparkassen AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-264/02	7

2007/C 117/11	Case C-126/07: Reference for a preliminary ruling from the Arbitration Court attached to the Economic Chamber of the Czech Republic and Agricultural Chamber of the Czech Republic (Czech Republic) lodged on 26 February 2007 — Reisebüro Bühler GmbH v Dom.info e.K., Sebastian Dieterle	8

2007/C 117/12	Case C-127/07: Reference for a preliminary ruling from the Conseil d'État (France) lodged on 5 March 2007 — Société Arcelor Atlantique et Lorraine, Société Sollac Méditerranée, Société Arcelor Packaging International, Société Ugine & Alz France, Société Industeel Loire, Société Creusot Métal, Société Imphy Alloys and Société Arcelor v Premier ministre, Ministre de l'Économie, des Finances et de l'Industrie, Ministre de l'Écologie et du Développement durable	8

2007/C 117/13	Case C-128/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Angelo Molinari v Agenzia Entrate Ufficio Latina	8

2007/C 117/14	Case C-129/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Giovanni Galeota v Agenzia Entrate Ufficio Latina	9

2007/C 117/15	Case C-130/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Salvatore Barbagallo v Agenzia Entrate Ufficio Latina	9

2007/C 117/16	Case C-131/07: Reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy) lodged on 5 March 2007 — Michele Ciampi v Agenzia Entrate Ufficio Latina	10

2007/C 117/17	Case C-132/07: Reference for a preliminary ruling from the Rechtbank van Koophandel te Brussel (Belgium) lodged on 5 March 2007 — Beecham Group plc, SmithKline Beecham plc, Glaxo Group Ltd, Stafford-Miller Ltd, GlaxoSmithKline Consumer Healthcare NV and GlaxoSmithKline Consumer Healthcare BV v Andacon NV	10

2007/C 117/18	Case C-133/07 P: Appeal brought on 6 March 2007 by Raiffeisen Zentralbank Österreich AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities concerning Case T-259/02	11

2007/C 117/19	Case C-135/07 P: Appeal brought on 6 March 2007 by Bank Austria Creditanstalt AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-260/02	12

2007/C 117/20	Case C-136/07: Action brought on 7 March 2007 — Commission of the European Communities v Kingdom of Spain	13

2007/C 117/21	Case C-137/07 P: Appeal brought on 8 March 2007 by Österreichische Volksbanken-AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-271/02	13

2007/C 117/22	Case C-138/07: Reference for a preliminary ruling from the Hof van beroep te Antwerpen (Belgium) lodged on 9 March 2007 — Belgische Staat v N.V. Cobelfret	14

2007/C 117/23	Case C-140/07: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 12 March 2007 — Hecht-Pharma GmbH v Staatliches Gewerbeaufsichtsamt Lüneburg	15

2007/C 117/24	Case C-141/07: Action brought on 9 March 2007 — Commission of the European Communities v Federal Republic of Germany	15

2007/C 117/25	Case C-143/07: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 13 March 2007 — Firma A.O.B. Reuter & Co. v Hauptzollamt Hamburg-Jonas	16

2007/C 117/26	Case C-144/07 P: Appeal brought on 13 March 2007 by K-Swiss, Inc. against the order of the Court of First Instance (Third Chamber) delivered on 14 December 2006 in Case T-14/06: K-Swiss, Inc. v Office for Harmonisation in the Internal Market (Trade Mark and Designs) (OHIM)	16

2007/C 117/27	Case C-150/07: Action brought on 15 March 2007 — Commission of the European Communities v Portuguese Republic	17

2007/C 117/28	Case C-151/07: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 19 March 2007 — Theologos-Grigorios Khatzithanasis v Ipourgos Igias kai Kinonikis Allilengiis and Organismos Epangelmatikis Ekpaidefsis kai Katartisis (Ο.Ε.Ε.Κ.)	17

2007/C 117/29	Case C-158/07: Reference for a preliminary ruling from the Centrale Raad van Beroep lodged on 22 March 2007 — Jacqueline Förster v IB-Groep	18

2007/C 117/30	Case C-159/07: Action brought on 22 March 2007 — Commission of the European Communities v Portuguese Republic	18

2007/C 117/31	Case C-167/07: Action brought on 29 March 2007 — Kingdom of Spain v Council of the European Union	19

2007/C 117/32	Case C-175/07, Case C-176/07, Case C-177/07, Case C-178/07, Case C-179/07, Case C-180/07, Case C-181/07, Case C-182/07, Case C-183/07, Case C-184/07: Reference for a preliminary ruling from the Tribunal de Grande instance de Nanterre (France) lodged on 2 April 2007 — 1. S.A. SAFBA v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 2. S.A. Sucreries et Raffineries d'Erstein v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 3. SA Sucreries & Distilleries de Souppes — Ouvré Fils v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 4. SA Sucrerie de Bourgogne v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 5. Sucrerie Bourdon v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 6. S.A. des Sucreries du Marquenterre v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 7. Cristal Union v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 8. S.A. Lesaffre Frères v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 9. Sociéte Vermendoise Industries v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers, 10. S.A. Sucreries de Toury et Usines annexes v Directeur général des douanes et droits indirects and Receveur principal des douanes et droits indirects de Gennevilliers	19

2007/C 117/33	Case C-192/07: Action brought on 3 April 2007 — Commission of the European Communities v Federal Republic of Germany	20

2007/C 117/34	Case C-199/07: Action brought on 12 April 2007 — Commission of the European Communities v Hellenic Republic	20

	Court of First Instance
2007/C 117/35	Case T-75/07: Action brought on 12 March 2007 — Ahmed Hamdi v Council of the European Union	22

2007/C 117/36	Case T-76/07: Action brought on 12 March 2007 — El Fatmi v Council of the European Union	22

2007/C 117/37	Case T-81/07: Action brought on 14 March 2007 — KG Holding (in liquidation) v Commission	23

2007/C 117/38	Case T-82/07: Action brought on 14 March 2007 — Kliq (in liquidation) v Commission	24

2007/C 117/39	Case T-83/07: Action brought on 14 March 2007 — Kliq Reïntegratie (in liquidation) v Commission	25

2007/C 117/40	Case T-84/07: Action brought on 13 March 2007 — Mineral and Chemical Company EuroChem v Council	26

2007/C 117/41	Case T-85/07: Action brought on 20 March 2007 — Gabel Industria Tessile v OHIM — Creaciones Garel (GABEL)	26

2007/C 117/42	Case T-86/07: Action brought on 21 March 2007 — Deichmann-Schuhe v OHIM — Design for Woman (DEITECH)	27

2007/C 117/43	Case T-87/07: Action brought on 22 March 2007 — Scil Proteins v OHIM — Indena (affilene)	27

2007/C 117/44	Case T-88/07: Action brought on 22 March 2007 — Fabryka Samochodów Osobowych v Commission	28

2007/C 117/45	Case T-89/07: Action brought on 23 March 2007 — VIP Car Solutions v Parliament	29

2007/C 117/46	Case T-90/07 P: Appeal brought on 26 March 2007 by the Kingdom of Belgium against the judgment of the Civil Service Tribunal delivered on 16 March 2007 in Case F-92/05, Genette v Commission	29

2007/C 117/47	Case T-91/07: Action brought on 19 march 2007 — WWF-UK v Council	30

2007/C 117/48	Case T-92/07 P: Appeal brought on 28 March 2007 by Jacques Frankin and Others against the judgment of the Civil Service Tribunal delivered on 16 January 2007 in Case F-3/06 Jacques Frankin and Others v Commission	31

2007/C 117/49	Case T-93/07: Action brought on 22 March 2007 — Italy v Commission	31

2007/C 117/50	Case T-94/07: Action brought on 26 March 2007 — EREF v Commission	31

2007/C 117/51	Case T-95/07: Action brought on 30 March 2007 — Aventis Pharma v OHIM — Altana Pharma (PRAZOL)	32

2007/C 117/52	Case T-96/07: Action brought on 23 March 2007 — Telecom Italia Media v Commission	32

2007/C 117/53	Case T-99/07 P: Appeal brought on 29 March 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 16 January 2007 in Case F-92/05, Genette v Commission	34

	European Union Civil Service Tribunal
2007/C 117/54	Case F-17/07: Action brought on 23 February 2007 — Pouzol v Court of Auditors	35

2007/C 117/55	Case F-23/07: Action brought on 19 March 2007 — M v EMEA	35

2007/C 117/56	Case F-24/07: Action brought on 15 March 2007 — Lafleur-Tighe v Commission	36

2007/C 117/57	Case F-25/07: Action brought on 22 March 2007 — Bleser v Court of Justice	36

2007/C 117/58	Case F-26/07: Action brought on 21 March 2007 — Potoms and Scillia v Parliament	37

2007/C 117/59	Case F-27/07: Action brought on 26 March 2007 — Sundholm v Commission	37

2007/C 117/60	Case F-29/07: Action brought on 28 March 2007 — Quadu v Parliament	37

2007/C 117/61	Case F-30/07: Action brought on 28 March 2007 — Noworyta v Parliament	38

2007/C 117/62	Case F-31/07: Action brought on 2 April 2007 — Putterie-de-Beukelaer v Commission	38