Court of Justice

20.2.98 EN Official Journal of the European Communities C 55/1

(Information)

COURT OF JUSTICE

JUDGMENT OF THE COURT on the common organisation of the markets in the sugar sector (OJ L 177, 1.7.1981, p. 4), and Commission (Fifth Chamber) Regulation (EC) No 3300/94 of 21 December 1994 laying down transitional measures in the sugar sector following of 27 November 1997 the accession of Austria, Finland and Sweden (OJ L 341, in Case C-27/96 (reference for a preliminary ruling by 30.12.1994, p. 39) Ð the Court (Fifth Chamber) the Länsrätten i Jönköpings Län): Danisco Sugar AB v. composed of: M. Wathelet, President of the First Chamber, Allmänna Ombudet (1) acting as President of the Fifth Chamber, J. C. Moitinho de Almeida, D. A. O. Edward, P. Jann and L. Sevón, (Accession of the Kingdom of Sweden Ð Agriculture Ð (Rapporteur), Judges; A. La Pergola, Advocate-General; Sugar Ð National levy on sugar stocks) H. von Holstein, Deputy Registrar, gave a judgment on 27 November 1997, the operative part of which is as (98/C 55/01) follows:

(Language of the case: Swedish) Articles 137(2) and 145(2) of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the Kingdom of Sweden and the adjustments to the Treaties (Provisional translation; the definitive translation will be on which the European Union is founded, Articles 39 and published in the European Court Reports) 40 of the EC Treaty, Council Regulation (EEC) No 1785/ 81 of 30 June 1981 on the common organisation of the markets in the sugar sector and Commission Regulation (EC) No 3300/94 of 21 December 1994 laying down In Case C-27/96: reference to the Court under Article 177 transitional measures in the sugar sector following the of the EC Treaty by the Länsrätten i Jönköpings Län accession of Austria, Finland and Sweden do not preclude (Sweden) for a preliminary ruling in the proceedings a State acceding to the European Union from adopting, on pending before that court between Danisco Sugar AB and the eve of its accession, legislation introducing a levy on Allmänna Ombudet, on the interpretation of Articles sugar being then held in stock within that State. 137(2), 145(2) and 149(1) of the Act concerning the conditions of accession of the Kingdom of Norway, the Republic of Austria, the Republic of Finland and the (1) OJ C 95, 30.3.1996. Kingdom of Sweden and the adjustments to the Treaties on which the European Union is founded (OJ C 241, 29.8.1994, p. 21), Articles 39 and 40 of the EC Treaty, Council Regulation (EEC) No 1785/81 of 30 June 1981 C 55/2 EN Official Journal of the European Communities 20.2.98

JUDGMENT OF THE COURT 3. orders the Italian Republic to pay the costs.

(Fifth Chamber)

(1) OJ C 247, 24.8.1996. of 4 December 1997 in Case C-207/96: Commission of the European Communities v. Italian Republic (1)

(Failure of a Member State to fulfil its obligations Ð Equal treatment for men and women Ð Prohibition of nightwork)

(98/C 55/02) JUDGMENT OF THE COURT (Fifth Chamber)

of 4 December 1997 (Language of the case: Italian) in Case C-225/96: Commission of the European Communities v. Italian Republic (1)

(Failure to fulfil obligations Ð Failure to transpose Directive 79/923/EEC Ð Quality required of shellfish (Provisional translation; the definitive translation will be waters) published in the European Court Reports) (98/C 55/03)

In Case C-207/96: Commission of the European Communities (Agents: Marie Wolfcarius and Enrico (Language of the case: Italian) Altieri) v. Italian Republic (Agent: Professor Umberto Leanza, assisted by Oscar Fiumara) Ð application for a declaration that, by not adopting within the prescribed period the laws, regulations and administrative provisions necessary in order to comply with Council Directive 76/ 207/EEC of 9 February 1976 on the implementation of (Provisional translation; the definitive translation will be the principle of equal treatment for men and women as published in the European Court Reports) regards access to employment, vocational training and promotion, and working conditions (OJ L 39, 14.2.1976, p. 40), and by retaining in national law rules prohibiting nightwork by women, contrary to Article 5 of that Directive, the Italian Republic has failed to fulfil its In Case C-225/96: Commission of the European obligations under Community law Ð the Court (Fifth Communities (Agents: initially by Antonio Aresu, and Chamber), composed of: M. Wathelet, President of the subsequently by Paolo Stancanelli) v. Italian Republic First Chamber, acting as President of the Fifth Chamber, (Agent: Professor Umberto Leanza, assisted by Pier J. C. Moitinho de Almeida, D. A. O. Edward Giorgio Ferri) Ð application for a declaration that Ð by (Rapporteur), P. Jann and L. Sevón, Judges; C. O. Lenz, failing to designate waters needing protection or Advocate-General; R. Grass, Registrar, has given a improvement in order to support shellfish life and growth judgment on 4 December 1997, in which it: in accordance with Article 4 of Council Directive 79/923/ EEC of 30 October 1979 on the quality required of shellfish waters (OJ L 281, 10.11.1979, p. 47) and/or to notify such designation to the Commission in accordance with Article 13 of Directive 79/923/EEC; Ð by failing to 1. declares that, by retaining in national law rules establish programmes in order to reduce pollution in prohibiting nightwork by women, contrary to Article 5 accordance with Article 5 of Directive 79/923/EEC, and of Council Directive 76/207/EEC of 9 February 1976 Ð by failing to set values for the parameters listed at on the implementation of the principle of equal points 8 and 9 of the Annex to Directive 79/923/EEC, treatment for men and women as regards access to other than for mercury and lead, in accordance with employment, vocational training and promotion, and Article 3 of Directive 79/923/EEC, the Italian Republic working conditions, the Italian Republic has failed to has failed to fulfil its obligations under the EC Treaty Ð fulfil its obligations under Community law; the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, J. C. Moitinho de Almeida (Rapporteur), D. A. O. Edward, J.-P. Puissochet and P. Jann, Judges; F. G. Jacobs, Advocate-General; R. Grass, 2. dismisses the remainder of the application as Registrar, has given a judgment on 4 December 1997, in inadmissible; which it declares that: 20.2.98 EN Official Journal of the European Communities C 55/3

1. Ð By failing to designate waters needing protection (Case C-258/96) Ð on the interpretation of Article 2(2)(c) or improvement in order to support shellfish life of Council Directive 91/533/EEC of 14 October 1991 on and growth in accordance with Article 4 of an employer's obligation to inform employees of the Council Directive 79/923/EEC of 30 October conditions applicable to the contract or employment 1979 on the quality required of shellfish waters, relationship (OJ L 288, 18.10.1991, p. 32) Ð the Court (Fifth Chamber), composed of: M. Wathelet (Rapporteur), President of the First Chamber, acting as President of the Ð by failing to establish programmes in order to Fifth Chamber, J. C. Moitinho de Almeida, D. A. O. reduce pollution in accordance with Article 5 of Edward, P. Jann and L. Sevón, Judges; G. Tesauro, Directive 79/923/EEC, and Advocate-General; H. A. Rühl, Principal Administrator, for the Registrar, has given a judgment on 4 December 1997, in which it has ruled: Ð by failing to set values for the parameters listed at points 8 and 9 of the Annex to Directive 79/923/ EEC other than for mercury and lead, in accordance with Article 3 of Directive 79/923/ 1. The notification referred to in Article 2(1) of Council EEC, the Italian Republic has failed to fulfil its Directive 91/533/EEC of 14 October 1991 on an obligations under Directive 79/923. employer's obligation to inform employees of the conditions applicable to the contract or employment relationship, in so far as it informs an employee of the 2. The Italian Republic is ordered to pay the costs. essential aspects of the contract or employment relationship and, in particular, of the points listed in Article 2(2)(c), enjoys the same presumption as to its (1) OJ C 247, 24.8.1996. correctness as would attach, in domestic law, to any similar document drawn up by the employer and communicated to the employee. The employer must none the less be allowed to bring any evidence to the contrary, by showing that the information in the notification is either inherently incorrect or has been shown to be so in fact. JUDGMENT OF THE COURT (Fifth Chamber) of 4 December 1997 2. Individuals may rely on Article 2(2)(c) of Directive 91/ 533/EEC directly before the national courts as against in Joined Cases C-253/96 to C-258/96 (references for a the State and any organisations or bodies which are preliminary ruling from the Landesarbeitsgericht Hamm): subject to the authority or control of the State or have Helmut Kampelmann and Others v. Landschafts- special powers beyond those which result from the verband Westfalen-Lippe (Cases C-253/96 to C-256/96), normal rules applicable to relations between Stadtwerke Witten GmbH v. Andreas Schade (Case individuals, either where the State has failed to C-257/96) and Klaus Haseley v. Stadtwerke Altena GmbH transpose the Directive into national law within the (Case C-258/96) (1) prescribed period or where it has not done so correctly. It is not open to a Member State to (Obligation to inform employees Ð Directive 91/533/EEC transpose Article 2(2)(c)(ii) of the Directive in such a Ð Article 2(2)(c)) way as to allow the employer, in every case, to confine (98/C 55/04) the information to be notified to the employee to a mere job designation.

(Language of the case: German) 3. Article 9(2) of the Directive, properly construed, does not preclude the Member States from exempting an employer from the obligation to give an employee (Provisional translation; the definitive translation will be written notification of the essential aspects of the published in the European Court Reports) contract or employment relationship, even at the employee's request, when those aspects are already set out in a document or contract of employment drawn In Joined Cases C-253/96 to C-258/96: references to the up before the measures transposing the Directive Court under Article 177 of the EC Treaty from the entered into force. Landesarbeitsgericht (Regional Labour Court), Hamm, Germany, for a preliminary ruling in the proceedings pending before that court between Helmut Kampelmann (1) OJ C 294, 5.10.1996. and Others and Landschaftsverband Westfalen-Lippe (Cases C-253/96 to C-256/96), between Stadtwerke Witten GmbH and Andreas Schade (Case C-257/96) and between Klaus Haseley and Stadtwerke Altena GmbH C 55/4 EN Official Journal of the European Communities 20.2.98

JUDGMENT OF THE COURT 3. orders the Kingdom of Spain and the United Kingdom of Great Britain and Northern Ireland to bear their of 9 December 1997 own costs. in Case C-265/95: Commission of the European Communities, supported by Kingdom of Spain and United Kingdom of Great Britain and Northern Ireland v. French (1) OJ C 268, 14.10.1995. Republic (1)

(Free movement of goods Ð Agricultural products Ð Trade barriers resulting from actions by private individuals Ð Obligations of the Member States)

(98/C 55/05)

JUDGMENT OF THE COURT

(Language of the case: French) of 9 December 1997

in Case C-353/95 P: TierceÂ Ladbroke SA v. Commission of the European Community, supported by the French Republic (1) (Provisional translation; the definitive translation will be published in the European Court Reports) (Competition Ð State aid Ð Levy on bets taken on horse- races Ð Transfer of resources to an undertaking established in another Member State)

In Case C-265/95: Commission of the European (98/C 55/06) Communities (Agents: Hendrik van Lier and Jean-Francis Pasquier), supported by Kingdom of Spain (Agents: Alberto JoseÂ Navarro GonzaÂlez and Rosario Silva de Lapuerta), United Kingdom of Great Britain and Northern Ireland (Agent: John E. Collins, assisted by Stephen (Language of the case: English) Richards and Mark Hoskins) v. French Republic (Agents: Jean-FrancËois Dobelle, Catherine de Salins, Anne de Bourgoing and Philippe Martinet) Ð application for a declaration that, by failing to take all necessary and In Case C-353/95P: TierceÂ Ladbroke SA, a company proportionate measures in order to prevent the free incorporated under Belgian law, represented by Jeremy movement of fruit and vegetables from being obstructed Lever QC, Christopher Vajda, Barrister, and Stephen Kon, by actions by private individuals, the French Republic has Solicitor, with an address for service in Luxembourg at the failed to fulfil its obligations under the common Chambers of Winandy & Err, 60 Avenue Gaston Diderich, organisation of the markets in agricultural products and appeal against the judgment of the Court of First Instance Article 30 of the EC Treaty, in conjunction with Article 5 of the European Communities (First Chamber, Extended of that Treaty Ð the Court, composed of: G. C. Composition) of 18 September 1995 in Case T-471/93 Rodríguez Iglesias, President, C. Gulmann, H. TierceÂ Ladbroke v. Commission [1995] ECR II-2537, Ragnemalm, M. Wathelet and R. Schintgen (Rapporteur) seeking to have that judgment set aside, the other party to (Presidents of Chambers), G. F. Mancini, J. C. Moitinho the proceedings being the Commission of the European de Almeida, P. J. G. Kapteyn, J. L. Murray, D. A. O. Communities (Agent: Eric White) supported by the French Edward, J.-P. Puissochet, G. Hirsch and P. Jann, Judges; Republic (Agents: Jean-FrancËois Dobelle, Catherine de C. O. Lenz, Advocate-General; H. A. Rühl, Principal Salins and Jean-Marc Belorgey) Ð the Court composed of: Administrator, for the Registrar, has given a judgment on G. C. Rodríguez Iglesias, President, C. Gulmann, H. 9 December 1997, in which it: Ragnemalm, R. Schintgen (Presidents of Chambers), G. F. Mancini, P. J. G. Kapteyn (Rapporteur), J. L. Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch and P. Jann, Judges, Advocate-General: G. Cosmas, Registrar: H. 1. declares that, by failing to adopt all necessary and Holstein, Deputy Registrar, has given a judgment on proportionate measures in order to prevent the free 9 December 1997, in which it: movement of fruit and vegetables from being obstructed by actions by private individuals, the French Republic has failed to fulfil its obligations under Article 30 of the EC Treaty, in conjunction with Article 5 of that Treaty, and under the common 1. dismisses the appeal; organisations of the markets in agricultural products;

2. orders the French Republic to pay the costs; 2. orders TierceÂ Ladbroke SA to pay the costs; 20.2.98 EN Official Journal of the European Communities C 55/5

3. orders the French Republic to bear its own costs. JUDGMENT OF THE COURT (Sixth Chamber) (1) OJ C 31, 3.2.1996. of 11 December 1997

in Case C-8/96 (reference for a preliminary ruling from the Tribunal de Grande Instance de Tours): Locamion SA v. Directeur des Services Fiscaux d'Indre-et-Loire (1)

JUDGMENT OF THE COURT (Directive 69/335/EEC Ð Regional charge on vehicle (Third Chamber) registration certificates) of 9 December 1997 (98/C 55/08) in Case C-143/96 (reference for a preliminary ruling from the Bundesfinanzhof): Leonhard Knubben Speditions GmbH v. Hauptzollamt Mannheim (1) (Language of the case: French) (Common Customs Tariff Ð Crushed' peppers within the meaning of subheading 0904 20 90 of the Combined Nomenclature) (Provisional translation; the definitive translation will be (98/C 55/07) published in the European Court Reports)

(Language of the case: German) In Case C-8/96: reference to the Court under Article 177 (Provisional translation; the definitive translation will be of the EC Treaty from the Tribunal de Grande Instance published in the European Court Reports) (Regional Court), Tours (France), for a preliminary ruling in the proceedings pending before that court between Locamion SA and Directeur des Services Fiscaux d'Indre- In Case C-143/96: reference to the Court under Article 177 et-Loire Ð on the interpretation of Council Directive 69/ of the EC Treaty from the Bundesfinanzhof (Federal 335/EEC of 17 July 1969 concerning indirect taxes on the Finance Court) (Germany), for a preliminary ruling in the raising of capital (OJ, English Special Edition 1969 (II), proceedings pending before that court between Leonhard p. 412), as amended by Council Directive 73/79/EEC of Knubben Speditions GmbH and Hauptzollamt Mannheim 9 April 1973 varying the field of application of the Ð on the interpretation of subheading 0904 20 of the reduced rate of capital duty provided for in respect of Combined Nomenclature, in the version resulting from certain company reconstruction operations by Commission Regulation (EEC) No 3174/88 of Article 7(1)(b) of the directive concerning indirect taxes on 21 September 1988 amending Annex I to Council the raising of capital (OJ L 103, 18.4.1973, p. 13), by Regulation (EEC) No 2658/87 on the tariff and statistical Council Directive 73/80/EEC of 9 April 1973 fixing nomenclature and on the Common Customs Tariff (OJ common rates of capital duty (OJ L 103, 18.4.1973, L 298, 31.10.1988, p. 1) and from Commission p. 15), by Council Directive 74/553/EEC of 7 November Regulation (EEC) No 2886/89 of 2 August 1989 1974 amending Article 5(2) of Directive 69/335/EEC (OJ amending Annex I to Regulation No 2658/87 (OJ L 282, L 303, 13.11.1974, p. 9), and by Council Directive 85/ 2.10.1989, p. 1) Ð the Court (Third Chamber), composed 303/EEC of 10 June 1985 amending Directive 69/335/EEC of: C. Gulmann, President of the Chamber, J. C. Moitinho (OJ L 156, 15.6.1985, p. 23) Ð the Court (Sixth de Almeida (Rapporteur) and J.-P. Puissochet, Judges; A. Chamber), composed of: H. Ragnemalm (Rapporteur), La Pergola, Advocate-General; H. A. Rühl, Principal President of the Chamber, G. F. Mancini, P. J. G. Kapteyn, Administrator, for the Registrar, has given a judgment on J. L. Murray and G. Hirsch, Judges; G. Cosmas, 9 December 1997, in which it has ruled: Advocate-General; D. Louterman-Hubeau, Principal Administrator, for the Registrar, has given a judgment on Subheading 0904 20 of the Combined Nomenclature, in 11 December 1997, in which it has ruled: the version resulting from Commission Regulation (EEC) No 3174/88 of 21 September 1988 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Article 10 of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital, as Tariff and from Commission Regulation (EEC) No 2886/ amended by Council Directive 73/79/EEC of 9 April 1973 89 of 2 August 1989 amending Annex I to Regulation varying the field of application of the reduced rate of (EEC) No 2658/87, must be construed as meaning that capital duty provided for in respect of certain company the expression sonst zerkleinert' (otherwise crushed') reconstruction operations by Article 7(1)(b) of the does not cover a product cut into pieces measuring directive concerning indirect taxes on the raising of between 4 and 8 mm. capital, by Council Directive 73/80/EEC of 9 April 1973 fixing common rates of capital duty, by Council Directive (1) OJ C 180, 22.6.1996. 74/553/EEC of 7 November 1974 amending Article 5(2) of Directive 69/335/EEC, and by Council Directive 85/ 303/EEC of 10 June 1985 amending Directive 69/335/ C 55/6 EN Official Journal of the European Communities 20.2.98

EEC, must be interpreted as not precluding a tax such as raising of capital, as amended by Council Directive the regional charge on vehicle registration certificates. 73/79/EEC of 9 April 1973 varying the field of application of the reduced rate of capital duty provided for in respect of certain company 1 ( ) OJ C 64, 2.3.1996. reconstruction operations by Article 7(1)(b) of the Directive concerning indirect taxes on the raising of capital, by Council Directive 73/80/EEC of 9 April 1973 fixing common rates of capital duty, by Council Directive 74/553/EEC of 7 November 1974 amending Article 5(2) of Directive 69/335/EEC, and by Council Directive 85/303/EEC of 10 June 1985 amending JUDGMENT OF THE COURT Directive 69/335/EEC, does not apply to a national tax on any appreciation in the value of immovable (Sixth Chamber) property, determined at the time when such property of 11 December 1997 was contributed to a capital company. However, Directive 69/335/EEC, as amended, does apply to the in Case C-42/96 (reference for a preliminary ruling from registration charge, the mortgage registration fee and the Tribunale Civile e Penale di Venezia): SocietaÁ the Land Register fee. Immobiliare SIF SpA v. Amministrazione delle Finanze dello Stato (1) 2. On a proper construction, Article 12 of Directive 69/ (Directive 69/335/EEC Ð Contribution of immovable 335/EEC, as amended, authorises Member States, property) notwithstanding the prohibition laid down in (98/C 55/09) Article 10 thereof, to charge, in connection with an increase in the capital of a capital company brought about by the contribution of immovable property, taxes such as the registration charge, the mortgage (Language of the case: Italian) registration fee and the Land Register fee, provided that such taxes do not exceed those applicable to like transactions in the Member State charging them. (Provisional translation; the definitive translation will be published in the European Court Reports) (1) OJ C 108, 13.4.1996.

In Case C-42/96: reference to the Court under Article 177 of the EC Treaty from the Tribunale Civile e Penale (Civil and Criminal District Court), Venice (Italy), for a preliminary ruling in the proceedings pending before that court between SocietaÁ Immobiliare SIF SpA and JUDGMENT OF THE COURT Amministrazione delle Finanze dello Stato Ð on the (Fifth Chamber) interpretation of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital of 11 December 1997 (OJ, English Special Edition 1969 (II), p. 412), as in Case C-83/97: Commission of the European amended by Council Directive 73/79/EEC of 9 April 1973 Community v. Federal Republic of Germany (1) varying the field of application of the reduced rate of capital duty provided for in respect of certain company (Failure to fulfil obligations Ð Failure to transpose reconstruction operations by Article 7(1)(b) of the Directive 92/43/EEC) Directive concerning indirect taxes on the raising of (98/C 55/10) capital (OJ L 103, 18.4.1973, p. 13), by Council Directive 73/80/EEC of 9 April 1973 fixing common rates of capital duty (OJ L 103, 18.4.1973, p. 15), by Council Directive (Language of the case: German) 74/553/EEC of 7 November 1974 amending Article 5(2) of Directive 69/335/EEC (OJ L 303, 3.11.1974, p. 9), and by Council Directive 85/303/EEC of 10 June 1985 (Provisional translation; the definitive translation will be amending Directive 69/335/EEC (OJ L 156, 15.6.1985, published in the European Court Reports) p. 23) Ð the Court (Sixth Chamber), composed of: H. Ragnemalm (Rapporteur), President of the Chamber, G. F. Mancini and G. Hirsch, Judges; G. Cosmas, Advocate- In Case C-83/97: Commission of the European General; L. Hewlett, Administrator, for the Registrar, has Communities (Agent: Götz zur Hausen) v. Federal given a judgment on 11 December 1997, in which it has Republic of Germany (Agents: Ernst Röder and Bernd ruled: Kloke) Ð application for a declaration that, by failing to adopt within the prescribed period the laws, regulations and administrative provisions necessary to comply with 1. On a proper construction, Council Directive 69/335/ Council Directive 92/43/EEC of 21 May 1992 on the EEC of 17 July 1969 concerning indirect taxes on the conservation of natural habitats and of wild fauna and 20.2.98 EN Official Journal of the European Communities C 55/7 flora (OJ L 206, 22.7.1992, p. 7), the Federal Republic of Chamber), composed of: C. Gulmann (Rapporteur), Germany has failed to fulfil its obligations under the EC President of the Chamber, J. C. Moitinho de Almeida, Treaty, Ð the Court (Fifth Chamber) composed of: C. D. A. O. Edward, J.-P. Puissochet and L. Sevón, Judges; Gulmann (Rapporteur) President of the Chamber, M. N. Fennelly, Advocate-General; R. Grass, Registrar, has Wathelet, J. C. Moitinho de Almeida, J.-P. Puissochet and given a judgment on 11 December 1997, in which it: L. Sevón, Judges; Advocate-General: N. Fennelly, Registrar: R. Grass, has given a judgment on 11 December 1. declares that, by failing to adopt within the periods 1997, the operative part of which is as follows: prescribed all the laws, regulations and administrative provisions necessary to comply with 1. By failing to adopt within the prescribed period the Ð Commission Directive 93/72/EEC of 1 September laws, regulations and administrative provisions 1993 adapting to technical progress for the 19th necessary to comply with Council Directive 92/43/ time Council Directive 67/548/EEC on the EEC of 21 May 1992 on the conservation of natural approximation of the laws, regulations and habitats and of wild fauna and flora, the Federal administrative provisions relating to the Republic of Germany has failed to fulfil its obligations classification, packaging and labelling of under Article 23 of that Directive. dangerous substances, and

2. The Federal Republic of Germany is ordered to pay Ð Commission Directive 93/101/EC of 11 November the costs. 1993 adapting Directive 67/548/EEC to technical progress for the 20th time,

(1) OJ C 108, 5.4.1997. the Kingdom of Belgium has failed to fulfil its obligations under Article 2(1) of those Directives;

2. orders the Kingdom of Belgium to pay the costs.

(1) OJ C 199, 28.6.1997. JUDGMENT OF THE COURT (Fifth Chamber) of 11 December 1997 in Case C-190/97: Commission of the European Communities v. Kingdom of Belgium (1) JUDGMENT OF THE COURT (Sixth Chamber) (Failure to fulfil obligations Ð Failure to transpose Directives 93/72/EEC and 93/101/EC) of 16 December 1997 (98/C 55/11) in Case C-316/96: Commission of the European Communities v. Italian Republic (1) (Failure of a Member State to fulfil obligations Ð (Language of the case: French) Directives 93/53/EEC, 93/54/EEC, 93/113/EC and 93/114/EC Ð Failure to transpose within the prescribed periods) (Provisional translation; the definitive translation will be published in the European Court Reports) (98/C 55/12)

(Language of the case: Italian) In Case C-190/97: Commission of the European Communities (Agent: Götz zur Hausen) v. Kingdom of Belgium (Agent: Jan Devadder) Ð application for a (Provisional translation; the definitive translation will be declaration that, by failing to adopt all the laws, published in the European Court Reports) regulations and administrative provisions necessary to comply with Commission Directive 93/72/EEC of In Case C-316/96: Commission of the European 1 September 1993 adopting to technical progress for the Communities (Agent: Paolo Ziotti) v. Italian Republic 19th time Council Directive 67/548/EEC on the (Agent: Professor Umberto Leanza, assisted by Oscar approximation of the laws, regulations and administrative Fiumara) Ð application for a declaration that, by failing provisions relating to the classification, packaging and to bring into force within the prescribed periods the laws, labelling of dangerous substances (OJ L 258, 16.10.1993, regulations and administrative provisions necessary to p. 29), and Commission Directive 93/101/EC of comply with Council Directive 93/53/EEC of 24 June 11 November 1993 adapting Directive 67/548/EEC to 1993 introducing minimum Community measures for the technical progress for the 20th time (OJ L 13, 15.1.1994, control of certain fish diseases (OJ L 175, 19.7.1993, p. 1), the Kingdom of Belgium has failed to fulfil its p. 23), Council Directive 93/54/EEC of 24 June 1993 obligations under those Directives Ð the Court (Fifth amending Directive 91/67/EEC concerning the animal C 55/8 EN Official Journal of the European Communities 20.2.98 health conditions governing the placing on the market of Administrativo (Portuguese Supreme Administrative aquaculture animals and products (OJ L 175, 19.7.1993, Court) for a preliminary ruling in the proceedings pending p. 34), Council Directive 93/113/EC of 14 December 1993 before that court between FaÂbrica de Queijo Eru Portu- concerning the use and marketing of enzymes, micro- guesa Ld..a and Subdirector-Geral das AlfaÃndegas; joined organisms and their preparations in animal nutrition (OJ as a party: MinisteÂrio PuÂ blico Ð on the interpretation of L 334, 31.12.1993, p. 17) and Council Directive 93/114/ Article 14(2) of Council Regulation (EEC) No 1999/85 of EC of 14 December 1993 amending Directive 70/524/EEC 16 July 1985 on inward processing relief arrangements concerning additives in feedingstuffs (OJ L 334, (OJ L 188, 20.7.1985, p. 1) and Articles 27 and 28 of 31.12.1993, p. 24), the Italian Republic has failed to fulfil Council Regulation (EEC) No 3677/86 of 24 November its obligations under those Directives and the EC Treaty 1986 laying down provisions for the implementation of Ð the Court (Sixth Chamber), composed of: H. Regulation (EEC) No 1999/85 (OJ L 351, 12.12.1986, Ragnemalm (Rapporteur), President of the Chamber, R. p. 1), as amended by Commission Regulation (EEC) Schintgen, G. F. Mancini, P. J. G. Kapteyn and G. Hirsch, No 2281/88 of 25 July 1988 (OJ L 200, 26.7.1988, p. 20) Judges; N. Fennelly, Advocate-General; L. Hewlett, Ð the Court (Fourth Chamber), composed of: H. Administrator, for the Registrar, has given a judgment on Ragnemalm (Rapporteur), President of the Chamber, 16 December 1997, in which it: P. J. G. Kapteyn and J. L. Murray, Judges; D. Ruiz-Jarabo Colomer, Advocate-General; H. A. Rühl, Principal 1. declares that, by failing to bring into force within the Administrator, for the Registrar, has given a judgment on prescribed periods the laws, regulations and 16 December 1997, in which it has ruled: administrative provisions necessary to comply with Council Directive 93/53/EEC of 24 June 1993 Article 28 of Council Regulation (EEC) No 3677/86 of introducing minimum Community measures for the 24 November 1986 laying down provisions for the control of certain fish diseases, Council Directive 93/ implementation of Regulation (EEC) No 1999/85 on 113/EC of 14 December 1993 concerning the use and inward processing relief arrangements, as amended by marketing of enzymes, micro-organisms and their Commission Regulation (EEC) No 2281/88 of 25 July preparations in animal nutrition and Council Directive 1988, must be interpreted as meaning that the time-limits 93/114/EC of 14 December 1993 amending Directive for re-export laid down therein may not be extended. 70/524/EEC concerning additives in feedingstuffs, the Italian Republic has failed to fulfil its obligations under the first subparagraph of Article 20(1) of (1) OJ C 354, 23.11.1996. Directive 93/53/EEC, the first subparagraph of Article 8(1) of Directive 93/113/EC and the first subparagraph of Article 2(1) of Directive 93/114/EC;

2. orders the Italian Republic to pay the costs. JUDGMENT OF THE COURT (1) OJ C 336, 9.11.1996. (Sixth Chamber) of 16 December 1997 in Case C-341/96: Commission of the European Communities v. Federal Republic of Germany (1)

JUDGMENT OF THE COURT (Failure of a Member State to fulfil its obligations Ð Directive 93/36/EEC Ð Failure to transpose within the (Fourth Chamber) prescribed period) of 16 December 1997 (98/C 55/14) in Case C-325/96 (reference for a preliminary ruling from the Supremo Tribunal Administrativo): FaÂbrica de Queijo (Language of the case: German) Eru Portuguesa Ld..a v. Subdirector-Geral das AlfaÃndegas; joined as a party: MinisteÂrio PuÂ blico (1) (Inward processing relief arrangements Ð Special (Provisional translation; the definitive translation will be arrangements for milk sector products Ð Extension of the published in the European Court Reports) time-limit for export) (98/C 55/13) In Case C-341/96: Commission of the European Communities (Agent: Claudia Schmidt) v. Federal (Language of the case: Portuguese) Republic of Germany (Agents: Ernst Röder and Bernd Kloke) Ð application for a declaration that, by failing to adopt within the prescribed period all the laws and (Provisional translation; the definitive translation will be regulations necessary to comply with Council Directive published in the European Court Reports) 93/36/EEC of 14 June 1993 coordinating procedures for the award of public supply contracts (OJ L 199, 9.8.1993, In Case C-325/96: reference to the Court under Article 177 p. 1) and, in the alternative, by failing to notify the of the EC Treaty from the Supremo Tribunal Commission immediately of the measures adopted in 20.2.98 EN Official Journal of the European Communities C 55/9 order to transpose that Directive, the Federal Republic of Confederation concerning direct insurance other than life Germany has failed to fulfil its obligations under the third assurance (OJ L 205, 27.7.1991, p. 48) or, in the paragraph of Article 189 of the EC Treaty and alternative, by failing to inform the Commission thereof, Article 34(1) of the Directive Ð the Court (Sixth the Kingdom of Spain has failed to fulfil its obligations Chamber), composed of: H. Ragnemalm (Rapporteur), under the EC Treaty Ð the Court (Fifth Chamber), President of the Chamber, G. F. Mancini, P. J. G. Kapteyn, composed of: C. Gulmann, President of the Chamber, M. J. L. Murray and K. M. Ioannou, Judges; N. Fennelly, Wathelet, J. C. Moitinho de Almeida (Rapporteur), P. Jann Advocate-General; R. Grass, Registrar, has given a and L. Sevón, Judges; A. La Pergola, Advocate-General; L. judgment on 16 December 1997, in which it: Hewlett, Administrator, for the Registrar, has given a judgment on 18 December 1997, in which it:

1. declares that, by failing to adopt within the prescribed period all the laws and regulations necessary to 1. declares that, by failing to adopt within the prescribed comply with Council Directive 93/36/EEC of 14 June period the laws, regulations and administrative 1993 coordinating procedures for the award of public provisions necessary to comply with Council Directive supply contracts, the Federal Republic of Germany has 91/371/EEC of 20 June 1991 on the implementation failed to fulfil its obligations under Article 34(1) of of the Agreement between the European Economic that Directive; Community and the Swiss Confederation concerning direct insurance other than life assurance, the Kingdom of Spain has failed to fulfil its obligations under that Directive; 2. orders the Federal Republic of Germany to pay the costs. 2. orders the Kingdom of Spain to pay the costs. (1) OJ C 370, 7.12.1996.

(1) OJ C 16, 20.1.1996.

JUDGMENT OF THE COURT (Fifth Chamber) JUDGMENT OF THE COURT (Fifth Chamber) of 18 December 1997 of 18 December 1997 in Case C-360/95: Commission of the European Communities v. Kingdom of Spain (1) in Case C-361/95: Commission of the European Communities v. Kingdom of Spain (1) (Failure to fulfil obligations Ð Failure to transpose Directive 91/371/EEC Ð Implementation of the (Failure to fulfil obligations Ð Failure to transpose Agreement between the European Economic Community Directive 92/49/EEC Ð Direct insurance other than life and the Swiss Confederation on direct insurance other assurance) than life assurance (98/C 55/16) (98/C 55/15)

(Language of the case: Spanish) (Language of the case: Spanish)

(Provisional translation; the definitive translation will be published in the European Court Reports) (Provisional translation; the definitive translation will be published in the European Court Reports) In Case C-361/95: Commission of the European Communities (Agents: Dimitrios Gouloussis and Blanca In Case C-360/95: Commission of the European VilaÂ Costa) v. Kingdom of Spain (Agents: Alberto JoseÂ Communities (Agents: Dimitrios Gouloussis and Blanca Navarro GonzaÂlez and Rosario Silva de Lapuerta) Ð VilaÂ Costa) v. Kingdom of Spain (Agents: Alberto JoseÂ application for a declaration that, by failing to adopt and Navarro GonzaÂlez and Rosario Silva de Lapuerta) Ð bring into force within the prescribed period the laws, application for a declaration that, by failing to adopt and regulations and administrative provisions necessary to bring into force within the prescribed period the laws, comply with Council Directive 92/49/EEC of 18 June regulations and administrative provisions necessary to 1992 on the coordination of laws, regulations and comply with Council Directive 91/371/EEC of 20 June administrative provisions relating to direct insurance other 1991 on the implementation of the Agreement between than life assurance and amending Directives 73/239/EEC the European Economic Community and the Swiss and 88/357/EEC (third non-life insurance Directive) C 55/10 EN Official Journal of the European Communities 20.2.98

(OJ L 228, 11.8.1992, p. 1) or, in the alternative, by 88 of 21 September 1988 (OJ L 298, 31.10.1988, p. 1), failing to inform the Commission thereof, the Kingdom of Commission Regulation (EEC) No 2886/89 of 2 August Spain has failed to fulfil its obligations under the EC 1989 (OJ L 282, 21.10.1989, p. 1) and Commission Treaty Ð the Court (Fifth Chamber), composed of: C. Regulation (EEC) No 2472/90 of 31 July 1990 (OJ L 247, Gulmann, President of the Chamber, M. Wathelet, J. C. 10.9.1990, p. 1) Ð the Court (First Chamber), composed Moitinho de Almeida (Rapporteur), P. Jann and L. Sevón, of: M. Wathelet, President of the Chamber, D. A. O. Judges; A. La Pergola, Advocate-General; L. Hewlett, Edward (Rapporteur) and L. Sevón, Judges; C. O. Lenz, Administrator, for the Registrar, has given a judgment on Advocate-General; H. A. Rühl, Principal Administrator, 18 December 1997, in which it: for the Registrar, has given a judgment on 18 December 1997, in which it has ruled:

1. declares that, by failing to adopt within the prescribed period the laws, regulations and administrative Image processing, as it can be carried out with an provisions necessary to comply with Council Directive automatic data-processing machine unit which includes, 92/49/EEC of 18 June 1992 on the coordination of inter alia, an analogue/digital converter, a high-quality laws, regulations and administrative provisions graphics processor and a digital/analogue converter, is not relating to direct insurance other than life assurance to be regarded as the performance of a specific function' and amending Directives 73/239/EEC and 88/357/ for the purposes of the last paragraph of Note 5(B) to EEC (third non-life insurance Directive), the Kingdom Chapter 84 of the Combined Nomenclature of the of Spain has failed to fulfil its obligations under that Common Customs Tariff in Annex I to Council Directive; Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by the Annexes to 2. orders the Kingdom of Spain to pay the costs. Commission Regulations (EEC) No 3174/88 of 21 September 1988, (EEC) No 2886/89 of 2 August 1989 (1) OJ C 16, 20.1.1996. and (EEC) No 2472/90 of 31 July 1990.

(1) OJ C 31, 3.2.1996.

JUDGMENT OF THE COURT (First Chamber) of 18 December 1997 JUDGMENT OF THE COURT in Case C-382/95 (reference for a preliminary ruling from (Fifth Chamber) the Bundesfinanzhof): Techex Computer + Grafik of 18 December 1997 Vertriebs GmbH v. Hauptzollamt München (1) in Case C-384/95 (reference for a preliminary ruling from (Common Customs Tariff Ð Tariff headings Ð Tariff the Finanzgericht des Landes Brandenburg): Landboden- classification of a Vista' board electronic component Agrardienste GmbH & Co. KG v. Finanzamt Calau (1) intended for image processing and capable of being used as a graphics card in a computer Ð Classification in the (VAT Ð Supply of services Ð National compensation for Combined Nomenclature) the extensification of potato production) (98/C 55/17) (98/C 55/18)

(Language of the case: German) (Language of the case: German)

In Case C-382/95: reference to the Court under Article 177 of the EC Treaty from the Bundesfinanzhof (Federal In Case C-384/95: reference to the Court under Article 177 Finance Court), for a preliminary ruling in the proceedings of the EC Treaty from the Finanzgericht des Landes pending before that court between Techex Computer + Brandenburg (Finance Court of the Land of Brandenburg), Grafik Vertriebs GmbH and Hauptzollamt München Ð Germany, for a preliminary ruling in the proceedings on the interpretation of the Combined Nomenclature of pending before that court between Landboden- the Common Customs Tariff in Annex I to Council Agrardienste GmbH & Co. KG and Finanzamt Calau Ð Regulation (EEC) No 2658/87 of 23 July 1987 on the on the interpretation of Articles 6(1), 11(A)(1)(a) and tariff and statistical nomenclature and on the Common 12(3)(a) of and Annex H to the Sixth Council Directive Customs Tariff (OJ L 256, 7.9.1987, p. 1), as amended by 77/388/EEC of 17 May 1977 on the harmonisation of the the Annexes to Commission Regulation (EEC) No 3174/ laws of the Member States relating to turnover taxes Ð 20.2.98 EN Official Journal of the European Communities C 55/11

Common system of value added tax: uniform basis of 1. declares that, by not adopting all the laws, regulations assessment (OJ L 145, 13.6.1977, p. 1) Ð the Court (Fifth and administrative provisions necessary to comply Chamber), composed of: C. Gulmann (Rapporteur), with Council Directive 89/106/EEC of 21 December President of the Chamber, M. Wathelet, J. C. Moitinho de 1988 on the approximation of laws, regulations and Almeida, J.-P. Puissochet and L. Sevón, Judges; F. G. administrative provisions of the Member States Jacobs, Advocate-General; H. von Holstein, Deputy relating to construction products, the Kingdom of Registrar, for the Registrar, has given a judgment on Belgium has failed to fulfil its obligations under that 18 December 1997, in which it has ruled: Directive;

On a proper construction of Articles 6(1) and 11(A)(1)(a) 2. orders the Kingdom of Belgium to pay the costs. of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member (1) OJ C 269, 14.9.1996. States relating to turnover taxes Ð Common system of value added tax: uniform basis of assessment, an undertaking given by a farmer under a national compensation scheme not to harvest at least 20% of his potato crop does not constitute a supply of services for the purposes of that Directive. Consequently, compensation received for that purpose is not subject to turnover tax. JUDGMENT OF THE COURT (Fifth Chamber) (1) OJ C 31, 3.2.1996. of 18 December 1997 in Case C-284/96 (reference for a preliminary ruling from the Tribunal de Grande Instance de Briey): Didier Tabouillot v. Directeur des Services Fiscaux de Meurthe- et-Moselle (1) (Article 95 of the Treaty Ð Differential tax on motor JUDGMENT OF THE COURT vehicles) (Fifth Chamber) (98/C 55/20) of 18 December 1997 (Language of the case: French) in Case C-263/96: Commission of the European Communities v. Kingdom of Belgium (1) (Failure to fulfil obligations Ð Directive 89/106/EEC Ð (Provisional translation; the definitive translation will be Construction products) published in the European Court Reports) (98/C 55/19) In Case C-284/96: reference to the Court under Article 177 of the EC Treaty from the Tribunal de Grande Instance de (Language of the case: Dutch) Briey (Regional Court, Briey), France, for a preliminary ruling in the proceedings pending before that court between Didier Tabouillot and Directeur des Services Fiscaux de Meurthe-et-Moselle Ð on the interpretation of (Provisional translation; the definitive translation will be Article 95 of the EC Treaty for the purpose of determining published in the European Court Reports) whether the French system of motor vehicle tax is compatible with that provision Ð the Court (Fifth Chamber), composed of: C. Gulmann, President of the In Case C-263/96: Commission of the European Chamber, M. Wathelet (Rapporteur), J. C. Moitinho de Communities (Agent: Hendrik van Lier) v. Kingdom of Almeida, D. A. O. Edward and J.-P. Puissochet, Judges; Belgium (Agent: Jan Devadder) Ð application for a F. G. Jacobs, Advocate-General; D. Louterman-Hubeau, declaration that, by not adopting the laws, regulations and Principal Administrator, for the Registrar, has given a administrative provisions necessary to comply with judgment on 18 December 1997, in which it has ruled: Council Directive 89/106/EEC of 21 December 1988 on the approximation of laws, regulations and administrative provisions of the Member States relating to construction A situation such as that arising from the importation into products (OJ L 40, 11.2.1989, p. 12), the Kingdom of a Member State of a vehicle which has come directly from Belgium has failed to fulfil its obligations under that a non-member country does not fall within the scope of Directive Ð the Court (Fifth Chamber), composed of: C. Article 95 of the EC Treaty. Gulmann, President of the Chamber, J. C. Moitinho de Almeida, D. A. O. Edward, J.-P. Puissochet and L. Sevón (1) OJ C 318, 26.10.1996. (Rapporteur), Judges; G. Tesauro, Advocate-General; R. Grass, Registrar, has given a judgment on 18 December 1997, in which it: C 55/12 EN Official Journal of the European Communities 20.2.98

JUDGMENT OF THE COURT State), Belgium, for a preliminary ruling in the proceedings (First Chamber) pending before that court between Ballast Nedam Groep NV and Belgian State Ð on the interpretation of the of 18 December 1997 judgment of the Court of 14 April 1994 in Case C-389/92 in Case C-309/96 (reference for a preliminary ruling from Ballast Nedam Groep [1994] ECR I-1289 Ð the Court the Pretura Circondariale di Roma, Sezione Distaccata di (Third Chamber), composed of: J. C. Moitinho de Tivoli): Daniele Annibaldi v. Sindaco del Comune di Almeida, acting for the President of the Chamber, J.-P. Guidonia, Presidente Regione Lazio (1) Puissochet (Rapporteur) and L. Sevón, Judges; A. La Pergola, Advocate-General; R. Grass, Registrar, has given (Agriculture Ð Nature and archaeological park Ð a judgment on 18 December 1997, in which it has ruled: Economic activity Ð Protection of fundamental rights Ð Lack of jurisdiction of the Court) (98/C 55/21) Council Directive 71/304/EEC of 26 July 1971 concerning the abolition of restrictions on freedom to provide services (Language of the case: Italian) in respect of public works contracts and on the award of public works contracts to contractors acting through agencies or branches and Council Directive 71/305/EEC (Provisional translation; the definitive translation will be of 26 July 1971 concerning the coordination of procedures published in the European Court Reports) for the award of public works contracts are to be interpreted as meaning that the authority competent to In Case C-309/96: reference to the Court under Article 177 decide on an application for registration submitted by a of the EC Treaty from the Pretura Circondariale di Roma, dominant legal person of a group is under an obligation, Sezione Distaccata di Tivoli (Rome District Magistrates' where it is established that that person actually has Court, Tivoli Division), for a preliminary ruling in the available to it the resources of the companies belonging to proceedings pending before that court between Daniele the group that are necessary to carry out the contracts, to Annibaldi and Sindaco del Comune di Guidonia, take account of the references of those companies in Presidente Regione Lazio Ð on the interpretation of assessing the suitability of the legal person concerned, in Article 40(3) of the EC Treaty and of the general accordance with the criteria mentioned in Articles 23 to principles of Community law Ð the Court (First 28 of Directive 71/305/EEC. Chamber), composed of: D. A. O. Edward (Rapporteur), acting for the President of the First Chamber, P. Jann and L. Sevón, Judges; G. Cosmas, Advocate-General; R. Grass, (1) OJ C 74, 8.3.1997. Registrar, has given a judgment on 18 December 1997, in which it has ruled:

The Court has no jurisdiction to answer the questions referred by the Pretura Circondariale di Roma.

(1) OJ C 336, 9.11.1996. JUDGMENT OF THE COURT (Second Chamber) of 15 January 1998 in Case C-37/95 (reference for a preliminary ruling from the Belgian Hof van Cassatie): Belgian State v. Ghent Coal JUDGMENT OF THE COURT Terminal NV (1) (Third Chamber) (Value added tax Ð Sixth VAT Directive Ð Article 17 Ð of 18 December 1997 Right to deduct Ð Adjustment of deductions) in Case C-5/97 (reference for a preliminary ruling from (98/C 55/23) the Raad van State, Belgium): Ballast Nedam Groep NV v. Belgian State (1) (Freedom to provide services Ð Public-works contracts Ð (Language of the case: Dutch) Registration of contractors Ð Entity to be taken into account) (98/C 55/22) (Provisional translation; the definitive translation will be published in the European Court Reports) (Language of the case: Dutch)

(Provisional translation; the definitive translation will be In Case C-37/95: reference to the Court under Article 177 published in the European Court Reports) of the EC Treaty from the Belgian Hof van Cassatie (Court of Cassation), for a preliminary ruling in the In Case C-5/97: reference to the Court under Article 177 proceedings pending before that court between Belgian of the EC Treaty from the Raad van State (Council of State and Ghent Coal Terminal NV Ð on the 20.2.98 EN Official Journal of the European Communities C 55/13 interpretation of Article 17 of the Sixth Council Directive freedom of movement for workers within the Community 77/388/EEC of 17 May 1977 on the harmonisation of the (OJ, English Special Edition 1968 (II), p. 475) Ð the laws of the Member States relating to turnover taxes Ð Court, composed of: C. Gulmann, President of the Third Common system of value added tax: uniform basis of and Fifth Chambers, acting for the President, H. assessment (OJ L 145, 13.6. 1977, p. 1) Ð the Court Ragnemalm, M. Wathelet and R. Schintgen (Presidents of (Second Chamber), composed of: H. Ragnemalm, Chambers), G. F. Mancini, J. C. Moitinho de Almeida, President of the Sixth Chamber, acting as president of the P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward Second Chamber, G. F. Mancini (Rapporteur) and G. (Rapporteur), J.-P. Puissochet, G. Hirsch, P. Jann and L. Hirsch, Judges; D. Ruiz-Jarabo Colomer, Advocate- Sevón, Judges; F. G. Jacobs, Advocate-General; L. General; H. A. Rühl, Principal Administrator, for the Hewlett, Administrator, for the Registrar, has given a Registrar, has given a judgment on 15 January 1998, in judgment on 15 January 1998, in which it has ruled: which it has ruled: 1. Article 48 of the EC Treaty and Article 7(1) and (4) of Article 17 of the Sixth Council Directive 77/388/EEC of Regulation (EEC) No 1612/68 of the Council of 17 May 1977 on the harmonisation of the laws of the 15 October 1968 on freedom of movement for Member States relating to turnover taxes Ð Common workers within the Community preclude a clause in a system of value added tax: uniform basis of assessment collective agreement applicable to the public service of must be construed as allowing a taxable person acting as a Member State which provides for promotion on such to deduct the VAT payable by him on goods or grounds of seniority for employees of that service after services supplied to him for the purpose of investment eight years' employment in a salary group determined work intended to be used in connection with taxable by that agreement without taking any account of transactions. The right to deduct remains acquired where, previous periods of comparable employment by reason of circumstances beyond his control, the taxable completed in the public service of another Member person has never made use of those goods or services for State. the purpose of carrying out taxable transactions. A supply of investment goods during the adjustment period, where such occurs, may give rise to an adjustment of the 2. A clause in a collective agreement entailing deduction under the conditions set out in Article 20(3) of discrimination contrary to Article 48 of the Treaty and Directive 77/388/EEC. to Article 7(1) of Regulation (EEC) No 1612/68 is null and void by virtue of Article 7(4) of that Regulation. Without requiring or waiting for that 1 ( ) OJ C 101, 22.4.1995. clause to be abolished by collective negotiation or by some other procedure, the national court must therefore apply the same rules to the members of the group disadvantaged by that discrimination as those applicable to the other workers.

JUDGMENT OF THE COURT (1) OJ C 64, 2.3.1996. of 15 January 1998 in Case C-15/96 (reference for a preliminary ruling from the Arbeitsgericht Hamburg): Kalliope Schöning- Kougebetopoulou v. Freie und Hansestadt Hamburg (1)

(Freedom of movement for persons Ð Collective JUDGMENT OF THE COURT agreement applicable to public sector employees Ð Promotion on grounds of seniority Ð Professional of 15 January 1998 experience acquired in another Member State) in Case C-44/96 (reference for a preliminary ruling from (98/C 55/24) the Bundesvergabeamt): Mannesmann Anlagenbau Austria AG and Others v. Strohal Rotationsdruck GesmbH (1)

(Language of the case: German) (Public procurement Ð Procedure for the award of public works contracts Ð State printing office Ð Subsidiary pursuing commercial activities) (Provisional translation; the definitive translation will be (98/C 55/25) published in the European Court Reports)

(Language of the case: German) In Case C-15/96: reference to the Court under Article 177 of the EC Treaty from the Arbeitsgericht (Labour Court) Hamburg, Germany, for a preliminary ruling in the (Provisional translation; the definitive translation will be proceedings pending before that court between Kalliope published in the European Court Reports) Schöning-Kougebetopoulou and Freie und Hansestadt Hamburg Ð on the interpretation of Article 48 of the EC Treaty and Article 7(1) and (4) of Regulation (EEC) In Case C-44/96: reference to the Court under Article 177 No 1612/68 of the Council of 15 October 1968 on of the EC Treaty from the Bundesvergabeamt (Federal C 55/14 EN Official Journal of the European Communities 20.2.98

Procurement Office), Austria, for a preliminary ruling in European Investment Bank and the other existing the proceedings pending before that court between financial instruments is to be interpreted as meaning Mannesmann Anlagenbau Austria AG and Others and that Community funding of a works project is not Strohal Rotationsdruck GesmbH Ð on the interpretation conditional upon the recipients complying with the of Article 1(b) of Council Directive 93/37/EEC of 14 June review procedures within the meaning of Council 1993 concerning the coordination of procedures for the Directive 89/665/EEC of 21 December 1989 on the award of public works contracts (OJ L 199, 9.8. 1993, coordination of the laws, regulations and p. 54) and Article 7(1) of Council Regulation (EEC) administrative provisions relating to the application of No 2081/93 of 20 July 1993 amending Regulation (EEC) review procedures to the award of public supply and No 2052/88 on the tasks of the Structural Funds and their public works contracts if they are not themselves effectiveness and on coordination of their activities contracting authorities within the meaning of between themselves and with the operations of the Article 1(b) of Directive 93/37/EEC. European Investment Bank and the other existing financial instruments (OJ L 193, 31.7.1993, p. 5) Ð the Court, (1) OJ C 95, 30.3.1996. composed of: G. C. Rodríguez Iglesias, President, C. Gulmann, M. Wathelet and R. Schintgen (Presidents of Chambers), G. F. Mancini, J. C. Moitinho de Almeida, P. J. G. Kapteyn (Rapporteur), J. L. Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch, P. Jann and L. Sevón, Judges; P. LeÂger, Advocate-General; H. A. Rühl, Principal Administrator, for the Registrar, has given a judgment on JUDGMENT OF THE COURT 15 January 1998, in which it has ruled: (First Chamber) of 15 January 1998 1. An entity such as the Österreichische Staatsdruckerei must be regarded as a body governed by public law in Case C-80/96 (reference for a preliminary ruling from within the meaning of the second subparagraph of the Hessisches Finanzgericht, Kassel): Quelle Schickedanz Article 1(b) of Council Directive 93/37/EEC of 14 June AG und Co. v. Oberfinanzdirektion Frankfurt am Main (1) 1993 concerning the coordination of procedures for (Common Customs Tariff Ð Classification of a set of the award of public works contracts, and thus as a goods Ð Validity of point 6 of the Annex to Commission contracting authority within the meaning of the first Regulation (EC) No 1966/94) subparagraph of that provision so that works contracts, of whatever nature, entered into by that (98/C 55/26) entity are to be considered to be public works contracts within the meaning of Article 1(a) of that (Language of the case: German) Directive.

(Provisional translation; the definitive translation will be 2. An undertaking which carries on commercial activities published in the European Court Reports) and in which a contracting authority has a majority shareholding is not to be regarded as a body governed by public law within the meaning of Article 1(b) of In Case C-80/96: reference to the Court under Article 177 Directive 93/37/EEC, and thus as a contracting of the EC Treaty from the Hessisches Finanzgericht authority within the meaning of that provision, on the (Hessen Finance Court), Kassel, Germany, for a sole ground that that undertaking was established by preliminary ruling in the proceedings pending before that the contracting authority or that the contracting court between Quelle Schickedanz AG und Co. and authority transferred to it funds which it has earned Oberfinanzdirektion Frankfurt am Main Ð on the from activities pursued in order to meet needs in the interpretation and validity of point 6 of the Annex to general interest, not having an industrial or Commission Regulation (EC) No 1966/94 of 28 July 1994 commercial character. concerning the classification of certain goods in the Combined Nomenclature (OJ L 198, 30.7.1994, p. 103) Ð the Court (First Chamber), composed of: M. Wathelet, 3. A public works contract is not subject to the President of the Chamber, P. Jann (Rapporteur) and L. provisions of Directive 93/37/EEC when it relates to a Sevón, Judges; N. Fennelly, Advocate-General; D. project which, from the outset, falls entirely within the Louterman-Hubeau, Principal Administrator, for the objects of an undertaking which is not a contracting Registrar, has given a judgment on 15 January 1998, in authority and when the works contracts relating to which it has ruled: that project were entered into by a contracting authority on behalf of that undertaking. 1. Commission Regulation (EC) No 1966/94 of 28 July 1994 concerning the classification of certain goods in 4. Article 7(1) of Council Regulation (EEC) No 2081/93 the Combined Nomenclature is invalid insofar as in of 20 July 1993 amending Regulation (EEC) No 2052/ point 6 of the Annex thereto it classifies goods put up 88 on the tasks of the Structural Funds and their in sets for retail sale, comprising a brassieÁre and briefs, effectiveness and on coordination of their activities separately under tariff subheadings 6108 21 00 and between themselves and with the operations of the 6212 10 00. 20.2.98 EN Official Journal of the European Communities C 55/15

2. On a proper construction of the Combined The Commission notes that the Hellenic Republic has not Nomenclature, as established by Annex I to yet adopted the appropriate measures to incorporate the Commission Regulation (EEC) No 2551/93 of directives at issue fully into the Greek legal order. 10 August 1993 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and (1) OJ L 340, 31.12.1993, p. 15. statistical nomenclature and on the Common Customs (2) OJ L 32, 5.2.1985, p. 14. Tariff, such goods are to be classified under the (3) OJ L 315, 8.12.1994, p. 18. heading which occurs last in numerical order, namely (4) OJ L 26, 31.1.1977, p. 67. subheading 6212 10 00.

(1) OJ C 145, 18.5.1996.

Action brought on 19 November 1997 by Glasoltherm Sarl against the Commission of the European Communities Action brought on 11 November 1997 by the Commission (Case C-399/97) of the European Communities against the Hellenic Republic (98/C 55/28) (Case C-385/97) (98/C 55/27) An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 19 November 1997 by An action against the Hellenic Republic was brought Glasoltherm Sarl, represented by Mr Penciolelli, lawyer, of before the Court of Justice of the European Communities 18 Avenue de la LibeÂration, 91130 Ris Orangis (France). on 11 November 1997 by the Commission of the European Communities, represented by Maria Kondou- Durande, of its Legal Service, with an address for service Glasoltherm Sarl claims that the Court should: in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg. Ð order the Commission of the European Communities to support by all means, including the provision of The applicant claims that the Court should: financial assistance, over a period of 10 years from the date of entry into industrial service of the two Ð declare that, by failing to adopt within the time-limit demonstration operations referred to, the action taken laid down the laws, regulations and administrative by a commercial company formed by Glasoltherm Sarl provisions necessary in order to comply with: to market Glasoltherm thermoelectric micro-heating technology in the European Community, Ð Council Directive 93/118/EC (1) of 22 December 2 1993 amending Directive 85/73/EEC ( ) on the Ð order the Commission of the European Communities financing of health inspections and controls of to pay the costs. fresh meat and poultrymeat, and

Ð Commission Directive 94/59/EC (3) of 2 December Pleas in law and main arguments adduced in support: 1994 amending for the third time the Annexes to Council Directive 77/96/EEC (4) on the The pleas in law and main arguments are the same as in examination for trichinae (trichinella spiralis) upon Case C-388/96 (1). importation from third countries of fresh meat derived from domestic swine, (1) OJ C 40, 8.2.1997, p. 11. OJ C 295, 27.9.1997, p. 9. the Hellenic Republic has failed to fulfil its obligations under the Treaty and those Directives,

Ð order the Hellenic Republic to pay the costs.

Pleas in law and main arguments adduced in support: Action brought on 4 December 1997 by the Commission of the European Communities against the Kingdom of the Under the third paragraph of Article 189 of the EC Treaty, Netherlands directives are binding, as to the result to be achieved, upon each Member State to which they are addressed. (Case C-408/97) Under the first paragraph of Article 5 of the Treaty, (98/C 55/29) Member States are to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of the Treaty or resulting from An action against the Kingdom of the Netherlands was actions taken by the institutions of the Community. brought before the Court of Justice of the European C 55/16 EN Official Journal of the European Communities 20.2.98

Communities on 4 December 1997 by the Commission of Action brought on 5 December 1997 by the Commission the European Communities, represented by B. J. Drijber of the European Communities against the Grand Duchy of and H. Michard, of its Legal Service, acting as Agents, Luxembourg with an address for service in Luxembourg at the office of (Case C-410/97) C. Gómez de la Cruz, of its Legal Service, Wagner Centre. (98/C 55/30)

The Commission claims that the Court should: An action against the Grand Duchy of Luxembourg was brought before the Court of Justice of the European Ð declare that, by not charging value added tax on tolls Communities on 5 December 1997 by the Commission of for the use of highway infrastructures, contrary to the European Communities, represented by Marie Articles 2 and 4 of the Sixth VAT Directive (77/388/ Wolfcarius, of its Legal Service, acting as Agent, with an EEC) of 17 May 1977 (1) the Kingdom of the address for service in Luxembourg at the office of Carlos Netherlands has failed to fulfil its obligations under Gómez de la Cruz, of its Legal Service, Wagner Centre, the EC Treaty, and Kirchberg.

The applicant claims that the Court should: Ð order the Kingdom of Netherlands to pay the costs.

Ð declare that, by failing to adopt the laws, regulations Pleas in law and main arguments adduced in support: or administrative provisions necessary to comply with Council Directive 92/29/EEC of 31 March 1992 on the minimum safety and health requirements for The Commission Ð like the Netherlands Government Ð improved medical treatment on board vessels (1), the takes the view that the tolls charged in the Netherlands Grand Duchy of Luxembourg has failed to fulfil its constitute consideration for the supply of a service within obligations under that Directive, the meaning of Article 2(1) of the Sixth Directive. However, the Netherlands Government wrongly considers that the bodies governed by public law charged with the Ð order the Grand Duchy of Luxembourg to pay the operation of facilities for which a toll is levied are acting costs. in that regard as public authorities within the meaning of the exception in Article 4(5) of the Sixth Directive. In the first place, a body governed by public law is taxable as a Pleas in law and main arguments adduced in support: general rule and exemption is an exception to that rule. The first subparagraph of Article 4(5) constitutes an exception to Article 4(1) and (2). The fact that the second The pleas in law and main arguments are analogous with and third subparagraphs of Article 4(5) constitute those relied upon in Case C-406/97 (2); the time-limit for exceptions, in turn, to the first subparagraph does not transposition expired on 31 December 1994. detract from the exceptional nature of that first subparagraph; on the contrary, it confirms that it provides (1) OJ L 113, 30.4.1992, p. 19. for a systematic exception. In the Netherlands (2) OJ C 41, 7.2.1998, p. 11. Government's argument, the rule and the exception appear to be reserved. The fact that exemption constitutes an exception is further confirmed by the fact that there would have been no need for the exemptions under, in particular, Articles 13 and 28 of the Sixth Directive if bodies governed by public law had not been subject to the VAT system. Any other interpretation would run counter Action brought on 5 December 1997 by the Commission to the general character of the Community VAT system. of the European Communities against the Kingdom of The charging of tolls is not inherent in the exercise of Belgium public authority, which includes the construction, making available and maintenance of certain infrastructures such (Case C-411/97) as tunnels and bridges, but a separate activity forming (98/C 55/31) part of the operation thereof. There is no reason why there should be no question of acting as a public authority in relation to supplies of gas etc. whilst such should be the case as regards the operation of bridges and tunnels. An action against the Kingdom of Belgium was brought before the Court of Justice of the European Communities on 5 December 1997 by the Commission of the European (1) OJ L 145, 13.6.1977, p. 1. Communities, represented by Marie Wolfcarius, of its Legal Service, acting as Agent, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg. 20.2.98 EN Official Journal of the European Communities C 55/17

The applicant claims that the Court should: (a) In regard to the building and demolition waste from which the chips are produced, operations are carried out already at an earlier stage than Ð declare that, by failing to adopt the laws, regulations burning which are to be regarded as a discarding or administrative provisions necessary to comply with of the waste, namely operations (recycling Council Directive 92/29/EEC of 31 March 1992 on operations) to render the waste suitable for reuse the minimum safety and health requirements for (use as a fuel)? improved medical treatment on board vessels (1), the Grand Duchy of Luxembourg has failed to fulfil its If so, is an operation to render waste suitable for obligations under that Directive, reuse (recycling operation) to be regarded as an operation for recovery of waste only if that operation is expressly mentioned in Annex II B of Ð order the Kingdom of Belgium to pay the costs. Directive 75/442/EEC, or also if that operation is analogous to an operation mentioned in Annex II B? Pleas in law and main arguments adduced in support:

(b) Wood chips constitute waste under contemporary The pleas in law and main arguments are analogous with thinking whereby it is of particular relevance whether they may be recovered in an those relied upon in Case C-406/97 (2); the time-limit for transposition expired on 31 December 1994. environmentally responsible manner for use as fuel without further processing?

(1) OJ L 113, 30.4.1992, p. 19. (2) OJ C 41, 7.2.1998, p. 11. (c) The use of wood chips as a fuel is comparable with an accepted method of waste recovery?

(1) OJ L 194, 25.7.1975, p. 39.

Reference for a preliminary ruling from the Netherlands Raad van State by order of that court of 25 November 1997 in the case of Vereniging Dorpsbelang Hees, Stichting Werkgroep Weurt, Vereniging Stedelijk Appeal brought on 12 December 1997 by SocieÂteÂ Leefmilieu Nijmegen v. Director of the Environmental and anonyme des traverses en beÂton armeÂ (SATEBA) against Water Services Department, Gelderland the order made on 29 September 1997 by the First (Case C-419/97) Chamber of the Court of First Instance of the European Communities in Case T-83/97 between SocieÂteÂ anonyme (98/C 55/32) de traverses en beÂton armeÂ (SATEBA) and the Commission of the European Communities (Case C-422/97 P) Reference has been made to the Court of Justice of the European Communities by order of the Netherlands Raad (98/C 55/33) van State (Council of State) of 25 November 1997, received at the Court Registry on 11 December 1997, for a preliminary ruling in the case of Vereniging Dorpsbelang An appeal against the order made on 29 September 1997 Hees, Stichting Werkgroep Weurt, Vereniging Stedelijk by the First Chamber of the Court of First Instance of the Leefmilieu Nijmegen v. Director of the Environmental and European Communities in Case T-83/97 between SocieÂteÂ Water Services Department, Gelderland, on the following anonyme de traverses en beÂton armeÂ (SATEBA) and the questions: Commission of the European Communities was brought before the Court of Justice of the European Communities on 12 December 1997 by SocieÂteÂ anonyme de traverses en 1. May it be inferred from the mere fact that wood chips beÂton armeÂ (SATEBA), represented by Jacques Manseau, undergo an operation listed in Annex II B to Directive of the Paris Bar, with an address for service in 75/442/EEC (1) that that substance has been discarded Luxembourg at the Chambers of Ernest Arendt, 8-10 rue so as to enable it to be regarded as waste for the Mathias Hardt. purposes of Directive 75/442/EEC?

The appellant claims that the Court should set aside the 2. If Question 1 is to be answered in the negative, does order of the Court of First Instance of 29 September 1997 the reply to the question whether the use of wood in Case T-83/97 (1) on the grounds of (i) erroneous chips as a fuel is to be regarded as constituting interpretation of the provisions of the EC Treaty and, in discarding depend on whether: particular, Articles 155, 169 and 86 thereof and of C 55/18 EN Official Journal of the European Communities 20.2.98

Regulation No 17 which was adopted to implement Reference for a preliminary ruling by the Bundesfinanzhof Article 86; (ii) infringement of Article 173; and (iii) breach by order of that court of 2 October 1997 in the case of of essential procedural requirements. Sarclad International Ltd, Wittington, Chesterfield, United Kingdom, against the Bundesamt für Finanzen Pleas in law and main arguments adduced in support: (Case C-428/97) (98/C 55/34) Ð Error in classification

Ð Erroneous interpretation of Regulation No 17. Reference has been made to the Court of Justice of the European Communities by order of the Bundesfinanzhof Ð Erroneous interpretation of Article 169 of the EC (Federal Finance Court) of 2 October 1997, received at Treaty: in order for Article 169 concerning failure the Court Registry on 18 December 1997, for a of a Member State to fulfil obligations to apply, it preliminary ruling in the case of Sarclad International Ltd, is not sufficient that a failure to comply with Wittington, Chesterfield, United Kingdom, against the Directive 93/38' is concerned and was expressly Bundesamt für Finanzen (Federal Finance Office) on the referred to in the complaint, since the complaint following question: was directed only at the conduct of the contracting entity, both as regards competition and free movement of goods. Is Article 3(a) of the eighth Council Directive 79/1072/ EEC of 6 December 1979 on the harmonisation of the Nor does the Court of First Instance establish that laws of the Member States relating to turnover taxes (1)to the procedure followed by the Commission was be interpreted as meaning: appropriate by citing the case-law of the Court of Justice according to which acts of contracting entities are imputable to the Member States to which those entities belong. If that case-law is Ð that the duplicate of a substitute document may also applied to the present case, the SNCB has no be regarded as the original import document or the liability, contrary to the principle set out in Member States are allowed in some circumstances to Article 222 of the Treaty, even though the same treat the duplicate as the original import document, or misconduct could be raised against a private undertaking. Ð that taxable persons not established in the territory of Ð Misinterpretation of the concept of an act against the country Ð who are covered by the eighth which proceedings may be brought. Directive 79/1072/EEC Ð are definitively precluded from asserting their right to deduct input tax if the Ð Breach of essential procedural requirements import document originally issued has been lost before the application for a refund of the value added tax is made? Ð Manifest violation of the rights as of defence: the Court of First Instance acted in breach of this fundamental principle by adopting the premise (1) OJ L 331, 27.12.1979, p. 11. that, in the context of a procedure pursuant to Article 169 of the Treaty, persons who have lodged a complaint have no procedural rights.

Ð Distortion of the subject-matter of the dispute: with regard to the plea of inadmissibility raised by the Commission, the Court of First Instance failed to find in limine litis that there was no legal basis Action brought on 18 December 1997 by the Commission for the Commission's letter closing the file, as of the European Communities against the French Republic SATEBA, in its application, requested it to do. The (Case C-429/97) Court of First Instance could not, therefore, without exceeding its powers, act in the place of (98/C 55/35) the Commission in selecting one of the procedures made available to the Commission in the context of Article 155 of the Treaty, in order to establish a ground for declaring the applicant's action An action against the French Republic was brought before inadmissible. the Court of Justice of the European Communities on 18 December 1997 by the Commission of the European Communities, represented by HeÂleÁne Michard and Enrico (1) OJ C 357, 22.11.1997, p. 27. Traversa, acting as Agents, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg. 20.2.98 EN Official Journal of the European Communities C 55/19

The Commission claims that the Court should: Reference for a preliminary ruling by the Amtsgericht Köln by order of that court of 3 September 1997 in the case of Jutta Johann against Hartmut Johann (Case C-430/97) Ð declare that, by refusing to refund VAT to taxable persons not established in France, in cases where those (98/C 55/36) persons had sub-contracted part of their work to a taxable person established in France, the French Republic has failed to fulfil its obligations under the Reference has been made to the Court of Justice of the eighth VAT Directive 79/1072/EEC (1), especially European Communities by order of the Amtsgericht Köln Article 2 thereof, (Local Court, Cologne) of 3 September 1997, received at the Court Registry on 19 December 1997, for a preliminary ruling in the case of Jutta Johann v. Hartmut Johann on the following questions: Ð order the French Republic to pay the costs.

1. Do the Staff Regulations of officials of the European Communities, and in particular Annex VIII thereto Pleas in law and main arguments adduced in support: (pension scheme) constitute a comprehensive and definitive determination of pension claims by a divorced wife, which excludes further claims under national law (in this case apportionment of pension The Commission rejects the interpretation of Article 9(2)(c) rights under the German law of obligations)? of the sixth Directive (2) by the French authorities, who reduce' the concept of the supply of services in eliminating waste to the mere execution of works on 2. Is it compatible with the Staff Regulations of officials corporeal movable goods which are to be taxed at the of the European Communities and Article 6 of the EC place where they are physically carried out. Such an Treaty for the divorce law of a Member State (in this interpretation of the supply of services in eliminating case Germany), by burdening an official with a claim waste, where such services are cross-frontier by nature, under the law of obligations for pension results in a unilateral and arbitrary allocation of the right apportionment, to place a heavier burden on that to tax to the Member State in which the supplier of official solely on the ground that he is of German services holding the main contract is established. nationality? Moreover, the French authorities' approach generates considerable legal uncertainty not only for the operator in question in determining for his clients' purposes the VAT regime of his supply under the contract, but also for the tax authorities of the Member State in which that taxable person is established. Such a conception has the effect of creating potential situations of double taxation which the Action brought on 19 December 1997 by the Commission rules of Article 9, and Article 9(1) in particular, allow to of the European Communities against Ireland be avoided by ensuring uniform, homogeneous and (Case C-431/97) rational taxation of the supplies of services in question within the Community. Finally, for the purposes of (98/C 55/37) determining the place of taxation, the French authorities effectively re-read or interpret the contract made between the holder of the main contract and his client, without the An action against Ireland was brought before the Court of authorities of the Member State in which that supplier of Justice of the European Communities on 19 December services is taxable having been in a position to determine 1997 by the Commission of the European Communities, whether or not that interpretation was capable of represented by Mr Berend Jan Drijber, a member of the adversely affecting their own fiscal competence as defined Legal Service, acting as Agent, with an address for service within the scope of Article 9 of the sixth Directive, and in Luxembourg at the office of Mr Carlos Gómez de la Article 9(1) in particular. Cruz, a member of its Legal Service, Centre Wagner.

The applicant claims that the Court should: (1) Eighth Council Directive on the harmonisation of the laws of the Member States relating to turnover taxes Ð arrangements for the refund of value added tax to taxable persons not Ð declare that, in failing to adopt the laws, regulations established in the territory of the country (OJ L 331, or administrative provisions necessary to comply with 27.12.1979, p. 11). (2) Sixth Council Directive on the harmonisation of the laws of Council Directive 94/57/EC of 22 November 1994 on the Member States relating to turnover taxes Ð common common rules and standards for ship inspection and system of value added tax: uniform basis of assessment (OJ survey organisations and for the relevant activities of L 145, 13.6.1977, p. 1). maritime administrations (1), Ireland has failed to fulfil its obligations under this Directive and the Treaty,

Ð order Ireland to pay the costs. C 55/20 EN Official Journal of the European Communities 20.2.98

Pleas in law and main arguments adduced in support: Directive (in conjunction with Annex F, No 26) and the different ways in which gold is treated for tax purposes in certain Member States lead to distortions of competition. Article 189 of the EC Treaty, under which a Directive Consequently, the Commission submitted, as long ago as shall be binding, as to the result to be achieved, upon each 28 October 1992, a proposal for a Directive relating to Member State, carries by implication an obligation on the special arrangements applicable to gold, which provides Member States to observe the period for compliance laid for the general exemption from tax of transactions in down in the Directive. That period expired on respect of what is known as investment gold and for the 31 December 1995 without Ireland having enacted the repeal of the abovementioned transitional rules; but no provisions necessary to comply with the Directive referred Directive in those terms has to date been adopted by the to in the conclusions of the Commission. Council. However, the issue in the present case is not whether the tax exemption in question has or has not (1) OJ L 319, 12.12.1994, p. 20. proved to be necessary in order to protect the German gold market but rather the fact that that tax exemption does not constitute a means of preventing the effects of existing distortions of competition on the national market for which provision is made by the sixth Directive.

Action brought on 22 December 1997 by the Commission Lastly, the Federal Republic of Germany wrongly relies on of the European Communities against the Federal the declaration of the Council and the Commission on Republic of Germany Article 1(1)(e) of Council Directive 72/77/EEC on the (Case C-432/97) approximation of VAT rates. That declaration must be read in conjunction with the provision to which it relates, (98/C 55/38) namely Article 12(3)(e) of the sixth Directive. The third and fourth sentences of that provision require the Member States from 1 January 1993 to take all necessary measures An action against the Federal Republic of Germany was to combat fraud in the field of the taxation of transactions brought before the Court of Justice of the European in a respect of gold (including, in particular, a system Communities on 22 December 1997 by the Commission giving the buyer the right to deduct tax). That provision of the European Communities, represented by Enrico affords no basis for the conferral on the Member States of Traversa, of its Legal Service, and Andreas Buschmann, a any more extensive powers. According to the case-law of national expert on secondment to its Legal Service, with the Court of Justice, however, a declaration cannot be an address for service in Luxembourg at the office of invoked for the purposes of interpreting a provision of Carlos Gómez de la Cruz, of its Legal Service, Wagner Community law where the content of the declaration does Centre C 254, Kirchberg. not find expression in the provision in question and thus has no legal significance. The applicant claims that the Court should: (1) OJ L 145, 13.6.1977, p. 1.

Ð declare that, by exempting from value added tax transactions in gold bars, gold coins ranking as legal tender and unprocessed gold and the negotiation of such transactions, the Federal Republic of Germany has failed to fulfil its obligations pursuant to Articles 2 and 28a(1)(a) of the sixth Council Directive 77/388/ Appeal brought on 22 December 1997 by IPK München EEC of 17 May 1977 on the harmonisation of the GmbH against the judgment delivered on 15 October laws of the Member States relating to turnover taxes 1997 by the First Chamber of the Court of First Instance Ð common systems of value added tax: uniform basis of the European Communities in Case T-331/94 between 1 of assessment ( ), as most recently amended, IPK München GmbH and the Commission of the European Communities Ð order the Federal Republic of Germany to pay the (Case C-433/97 P) costs. (98/C 55/39)

Pleas in law and main arguments adduced in support: An appeal against the judgment delivered on 15 October The sixth Directive affords no basis for the exemption 1997 by the First Chamber of the Court of First Instance provision introduced by the Federal Republic of Germany, of the European Communities in Case T-331/94 between with effect from 1 January 1993, as paragraph 4(8)(K) of IPK München GmbH and the Commission of the the Umsatzsteuergesetz (Law on turnover taxes). European Communities was brought before the Court of Justice of the European Communities on 22 December 1997 by IPK München GmbH, represented by Hans- The Commission is conscious of the fact that the Joachim Prieû, Rechtsanwalt, 13 place des Barricades, transitional rules contained in Article 28(3)(b) of the sixth B-1000 Brussels. 20.2.98 EN Official Journal of the European Communities C 55/21

The appellant claims that the Court should: Reference for a preliminary ruling by the French Cour de Cassation, by judgment of that court of 9 December 1997, 1. set aside the judgment delivered on 15 October 1997 in the case of GIE Groupe Concorde, Uni Europe, La by the Court of First Instance of the European PreÂservatrice FoncieÁre IARD, La Baloise, ReÂunion Communities in Case T-331/94 (1) and annul the EuropeÂenne, Allianz, British and Foreign Marine respondent's decision of 3 August 1994 refusing Insurance Co. Ltd and Camat against the Master of the payment of the second instalment of the aid granted to vessel Suhadiwarno Panjan', P. T. Perusahan Pelayaran the applicant by letter of 4 August 1992, Trikoria Lloyd', Pro Ligne Ltd, Sveriges Angarts Assurans Forening, Somaba and Agence maritime Borghans 2. alternatively: (Case C-440/97) set aside the judgment of the Court of First Instance (98/C 55/40) referred to in (1) above and refer the case back to the Court of First Instance, Reference has been made to the Court of Justice of the 3. order the respondent to pay the costs. European Communities by a judgment of the French Cour de Cassation of 9 December 1997, which was received at Pleas in law and main arguments adduced in support: the Court Registry on 29 December 1997, for a preliminary ruling in the case of GIE Groupe Concorde Ð Complaints regarding procedural matters and Others v. The Master of the vessel Suhadiwarno Ð failure to comply with the obligation imposed by Panjan' and Others, on the following question: Article 190 of the EC Treaty to provide a statement of reasons, With a view to the application of Article 5(1) of the Ð breach of the duty to investigate the matter and Brussels Convention of 27 September 1968 on jurisdiction infringement of the rules concerning the burden of and the enforcement of judgments in civil and commercial proof and the degree of proof. matters, must the place where the obligation at issue was or must be fulfilled, within the meaning of that provision, Ð Infringements of substantive Community law be determined in accordance with the law which governs the obligation at issue or should national courts determine Ð the contested judgment is based on a presumption the place of performance of the obligation by seeking to of fact which, as is apparent from the documents establish, having regard to the nature of the relationship in the case, is incorrect, creating the obligation and the circumstances of the case, the place where performance actually took place or should Ð in upholding a deadline for submission of the final have taken place, without having to refer to the law report which did not reflect the delay caused by which, under the rules on conflict of laws, governs the the Commission to the commencement of the obligation at issue? project, the Court of First Instance failed to observe the principle patere legem quam ipse fecisti and disregarded the prohibition of acts constituting an abuse of law,

Ð breach of the prohibition imposed by the principle venire contra factum proprium, alternatively of the principle of estoppel: the Court of First Instance Reference for a preliminary ruling by the wrongly assessed as irrelevant in law statements Arbeidsrechtbank Brugge, Afdeling Oostende, by made by the official then responsible for the judgment of that court of 22 December 1997 in the case matter in the course of discussions with the of Jozef Van Coile and Rijksdienst voor Pensioenen applicant, despite the fact that those statements (Case C-442/97) were reflected in the minutes prepared by the Commission, (98/C 55/41) Ð breach of the principle of proportionality: the Court of First Instance failed to give sufficient weight to the disparity between the gravity of the Reference has been made to the Court of Justice of the alleged infringement and the conditions laid down European Communities by judgment of the in the Decision granting the aid and between the Arbeidsrechtbank Brugge (Labour Court, Bruges), Ostend circumstances of the case (illegal intervention by Division, of 22 December 1997, which was received at the the Commission and unlawful shortening of the Court Registry on 30 December 1997, for a preliminary period for completion of the project) and the ruling in the case of Jozef Van Coile and Rijksdienst voor penalty imposed by the Commission, namely non- Pensioenen (National Pensions Office) on the following payment of 40% of the total amount of the aid. question:

(1) OJ C 387, 20.12.1997, p. 14. Article 32b(5) of the Royal Decree of 21 December 1967 laying down general rules concerning retirement and C 55/22 EN Official Journal of the European Communities 20.2.98 survivor's pensions for workers provides as follows: A Removal from the register of Case C-169/97 (1) worker who was employed as a worker during the period (98/C 55/43) between 1 January 1938 and 1 January 1945 and in respect of whom a contribution was paid of an amount By order of 18 September 1997 the President of the Court equivalent to the annual amount referred to in of Justice of the European Communities has ordered the paragraph 2, is deemed to have paid sufficient removal from the register of Case C-169/97: Commission contributions to establish that he was normally and of the European Communities v. Portuguese Republic. principally employed during the entire period comprised between the date on which the period of employment (1) OJ C 199, 28.6.1997. established came to an end and 1 January 1946.'

Article 32b(6) of the aforesaid Royal Decree of 21 December 1967 provides as follows: The presumption laid down in the two aforesaid paragraphs is rebuttable only in respect of periods for which the person concerned Removal from the register of Case C-193/96 (1) can claim a pension under another Belgian scheme, with (98/C 55/44) the exception of the scheme for self-employed workers, or under the scheme of a foreign country.' By order of 25 September 1997 the President of the Sixth Chamber of the Court of Justice of the European Is a provision such as Article 32b(6) of the Royal Decree Communities has ordered the removal from the register of of 21 December 1967 a provision on reduction, Case C-193/96 (reference for a preliminary ruling from suspension or withdrawal laid down by the legislation of a the Verwaltungsgericht Köln): Richard Buchen GmbH v. Member State, as referred to in Article 46b(2) of Bezirksregierung Köln. Regulation (EEC) No 1408/71, which does not apply to a benefit calculated in accordance with Article 46(1)(a)(i)? (1) OJ C 210, 20.7.1996.

Removal from the register of Case C-322/96 (1) Removal from the register of Case C-205/97 (1) (98/C 55/42) (98/C 55/45)

By order of 12 September 1997 the President of the Court By order of 5 December 1997, the President of the Court of Justice of the European Communities has ordered the of Justice of the European Communities ordered the removal from the register of Case C-322/96 (reference for removal from the register of Case C-205/97 (reference for a preliminary ruling from the Supremo Tribunal a preliminary ruling from the Supremo Tribunal Administrativo): ICT Ð InduÂ stria e ComeÂrcio TeÃxtil SA v. Administrativo (Supreme Administrative Court)): Fazenda Fazenda PuÂ blica. PuÂ blica v. AssociacËaÄo Nacional de Transportes PuÂ blicos RodoviaÂrios de Mercadorias (Antram) in the presence of (1) OJ C 336, 9.11.1996. MinisteÂrio PuÂ blico.

(1) OJ C 252, 16.8.1997. 20.2.98 EN Official Journal of the European Communities C 55/23

COURT OF FIRST INSTANCE

JUDGMENT OF THE COURT OF FIRST INSTANCE represented by Jean-NoeÈl Louis, Thierry Demaseure, of 17 December 1997 VeÂronique Leclerq and Ariane Tornel, of the Brussels Bar, with an address for service in Luxembourg at Fiduciaire in Case T-152/95: Odette Nicos Petrides Co. Inc. v. Myson Sarl, 30 rue de Cessange, against Commission of Commission of the European Communities (1) the European Communities (Agents: Gianluigi Valsesia (Common organisation of the market in raw tobacco Ð and Ana Maria Alves Vieira) Ð application for the Management by the Commission Ð Action for annulment of decisions of the Selection Board in internal compensation Ð Time bar Ð Principle of proportionality competition COM/B/9/93, awarding to the applicants, at Ð Principle of equal treatment) the oral tests in that competition, a mark below the minimum required by the notice of competition and (98/C 55/46) therefore refusing to include their names on the list of eligible candidates Ð the Court of First Instance (Fourth (Language of the case: French) Chamber), composed of K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges; A. Mair, administrator, for the In Case T-152/95: Odette Nicos Petrides Co. Inc., Registrar, gave a judgment on 17 December 1997, the established in Kavala (Greece), represented by Edouard operative part of which is as follows: Didier and JoeÈl GrangeÂ, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Carlos 1. The application is dismissed. Zeyen, 67 rue Ermesinde, against Commission of the European Communities (Agent: GeÂrard Berscheid) Ð application for an order requiring the Commission to pay 2. The parties shall each bear their own costs. damages pursuant to Article 178 and the second paragraph of Article 215 of the EC Treaty as compensation for the damage resulting from certain action (1) OJ C 268, 14.10.1995. taken by it in managing the common organisation of the market in raw tobacco in the period 1990 to 1991 Ð the Court of First Instance (Fourth Chamber), composed of: K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges; J. Palacio GonzaÂlez, Administrator, for the Registrar, has given a judgment on 17 December 1997, in which it: JUDGMENT OF THE COURT OF FIRST INSTANCE 1. dismisses the application; of 17 December 1997 in Case T-110/96: Dominique-FrancËois Bareth v. 2. orders the applicant to pay the costs. Committee of the Regions (1) (Officials Ð Internal competition Ð Refusal to appoint a (1) OJ C 268, 14.10.1995. successful candidate Ð Misuse of power Ð Principle of equal treatment Ð Obligation to state reasons) (98/C 55/48)

(Language of the case: French) JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 December 1997 In Case T-110/96: Dominique-FrancËois Bareth, an official in Case T-159/95: Luigia Dricot and Others v. of the Economic and Social Committee of the European Commission of the European Communities (1) Union, residing in Brussels, represented by Jean-NoeÈl (Officials Ð Internal competition for advancement from Louis, Thierry Demaseure and Ariane Tornel, of the Category C to Category B Ð Decision of the Board failing Brussels Bar, with an address for service in Luxembourg at candidates at the oral test Ð Consistency between Fiduciaire Myson Sarl, 30 rue de Cessange, against complaint and application Ð Principle of equal treatment Committee of the Regions (Agent: Dominique Lagasse) Ð for men and women Ð Principle of non-discrimination Ð application for the annulment of the decision of the Scope of the obligation to state reasons Ð Assessment of Committee of the Regions of 20 September 1995 the Board) inasmuch as it refuses to appoint the applicant to one of the vacant posts referred to in the notice of internal (98/C 55/47) competition A/02/95 and appoints other successful candidates to those posts Ð the Court of First Instance (Language of the case: French) (Fourth Chamber), composed of K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges; A. Mair, Administrator, In Case T-159/95: Luigia Dricot and 29 other applicants, for the Registrar, gave a judgment on 17 December 1997, officials of the Commission of the European Communities, the operative part of which is as follows: C 55/24 EN Official Journal of the European Communities 20.2.98

1. The decision of the Committee of the Regions of 3. The parties shall each bear their own costs. 20 September 1995, in so far as it refuses to appoint the applicant to one of the vacant posts referred to in (1) OJ C 94, 22.3.1997. notice of internal competition A/02/95, is annulled.

2. The decision of the Committee of the Regions of 20 September 1995, in so far as it appoints to certain vacant posts referred to in notice of internal competition A/02/95 a number of successful candidates classified below the applicant on the list of JUDGMENT OF THE COURT OF FIRST INSTANCE eligible candidates, is annulled. of 18 December 1997 in Joined Cases T-159/94 and T-160/94: Ajinomoto Co., 3. The Committee of the Regions is ordered to pay the Inc. and The NutraSweet Company v. Council of the costs. European Union (1) (Action for annulment Ð Dumping Ð Aspartame Ð 1 ( ) OJ C 294, 5.10.1996. Right to a fair hearing Ð Normal value Ð Reference country Ð Patent Ð Injury) (98/C 55/50)

(Language of the case: English) JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 December 1997 In Joined Cases T-159/94: Ajinomoto Co., Inc., established in Case T-208/96: Eberhard Eiselt v. Commission of the in Tokyo, represented by Mario Siragusa, of the Rome European Communities (1) Bar, and Till Müller-Ibold, Rechtsanwalt, Frankfurt am Main, with an address for service in Luxembourg at the (Vocational training course Ð Refusal to participate Ð Chambers of Marc Loesch, 11 rue Goethe, and T-160/94: Infringement of Article 24 of the Staff Regulations and of The NutraSweet Company, established at Deerfield, the principle of equal treatment Ð Claim for Illinois (United States of America), represented initially by compensation for damage suffered) Otto Grolig, Peter Bogaert and Koen Vanhaerents, and (98/C 55/49) subsequently by Otto Grolig, Jean-FrancËois Bellis and Fabrizio Di Gianni, of the Brussels Bar, with an address for service in Luxembourg at the Chambers of Jacques (Language of the case: Italian) Loesch, 11 rue Goethe, against Council of the European Union (Agents: Erik Stein, Guus Houttuin, Hans-Jürgen In Case T-208/96: Eberhard Eiselt, an official of the Rabe and Georg M. Berrisch), supported by Commission Commission of the European Communities, residing in of the European Communities (Agents: Eric L. White, Ispra (Italy), represented by Giuseppe Marchesini, of the Nicholas Khan, assisted initially by Mark Cran and Vicenza Bar, with an address for service in Luxembourg at subsequently by Fergus Randolph) Ð applications for the Chambers of Ernest Arendt, 8Ð10 rue Mathias Hardt, annulment of Council Regulation (EEC) No 1391/91 of against Commission of the European Communities (Agent: 27 May 1991 imposing a definitive anti-dumping duty on Gianluigi Valsesia) Ð application for, first, the annulment imports of aspartame originating in Japan and the United of a decision of the Commission refusing the applicant the States of America (OJ L 134, 29.5.1991, p. 1) Ð the further vocational training he requested and, secondly, the Court of First Instance (Fifth Chamber, Extended annulment of the decision of the Commission assigning Composition), composed of: R. García-Valdecasas, him to duties which did not correspond to his President, V. Tiili, J. Azizi, R. M. Moura Ramos and M. qualifications, his professional experience or to the duties Jaeger, Judges; A. Mair, Administrator, for the Registrar, for which he was initially recruited Ð the Court of First has given a judgment on 18 December 1997, in which it: Instance (Fourth Chamber), composed of K. Lenaerts, President, P. Lindh and J. D. Cooke, Judges; A. Mair, 1. dismisses the applications; Administrator, for the Registrar, gave a judgment on 17 December 1997, the operative part of which is as follows: 2. orders the applicants to bear their own costs and to pay the costs of the Council; 1. The application is dismissed as inadmissible inasmuch as it seeks a finding that the allocation to the applicant 3. orders the Commission to bear its own costs. of duties for which he is not trained and for which he was not initially employed is unlawful in so far as it is not in the interests of the institution. (1) OJ C 291, 8.11.1991.

2. The remainder of the application is dismissed. 20.2.98 EN Official Journal of the European Communities C 55/25

JUDGMENT OF THE COURT OF FIRST INSTANCE Berrisch) and Commission of the European Communities of 18 December 1997 (Agents: Eric White and Claus-Michael Happe) Ð application for taxation of costs following the judgment of in Case T-178/94: Asociación Telefónica de Mutualistas the Court of 18 September 1995 in Case T-167/94: Nölle (ATM) v. Commission of the European Communities (1) v. Council and Commission [1995] ECR II-2589 Ð the (State aid Ð Reduction in social charges Ð Closure of the Court of First Instance (Second Chamber, Extended file on the complaint Ð Interest in bringing proceedings Composition), composed of: A. Kalogeropoulos, President, Ð Inadmissibility) C. P. BrieÈt, C. W. Bellamy, A. Potocki and J. Pirrung, Judges; H. Jung, Registrar, has made an order on (98/C 55/51) 12 December 1997, the operative part of which is as follows: (Language of the case: Spanish) The total amount of the costs to be reimbursed by the In Case T-178/94: Asociación Telefónica de Mutualistas applicant to the Council, including the costs incurred by (ATM), established in Madrid, represented by Juan the parties for the purpose of the present proceedings, is Eugenio Blanco Rodríguez and Bernardo Vicente fixed at DEM 20 000. HernaÂndez Bataller, of the Madrid Bar and by Lydie Lorang, of the Luxembourg Bar, with an address for 1 service in Luxembourg at the Chambers of AndreÂ ( ) OJ C 222, 18.8.1993. SeÂreÂbriacoff, 11 rue Goethe, against Commission of the European Communities (Agents: during the written procedure initially by Francisco Enrique GonzaÂlez Diaz and Michel Nolin, then by Francisco Santaolalla and Michel Nolin, and during the oral procedure by Fernando Castillo de la Torre) Ð application for annulment of the Action brought on 17 September 1997 by Kurt Giegerich Commission's decision, communicated to the Asociación against the Commission of the European Communities Telefónica de Mutualistas by the Commission's letter (Case T-253/97) No D/30508 of 15 February 1994, to close the file on the complaint lodged by that association objecting to the State (98/C 55/53) aid allegedly received by a public limited company, CompanÄ ía Telefónica de EspanÄ a SA Ð the Court of First (Language of the case: German) Instance (First Chamber, Extended Composition), composed of: A. Saggio, President, A. Kalogeropoulos, V. An action against the Commission of the European Tiili, R. M. Moura Ramos and J. Pirrung, Judges; B. Communities was brought before the Court of First Pastor, Principal Administrator, for the Registrar, has given Instance of the European Communities on 17 September a judgment on 18 December 1997, in which it: 1997 by Kurt Giegerich, residing at Osmate/VA (Italy), represented by Bernd Potthast, Hans-Josef Rüber and 1. dismisses the application as inadmissible; Albert Potthast, Rechtsanwälte, Cologne, with an address for service in Luxembourg at the Chambers of Ernest 2. orders the applicant to bear its own costs and to pay Arendt, 8Ð10 rue Mathias Hardt. those of the Commission. The applicant claims that the Court should: (1) OJ C 174, 25.6.1994. Ð annul the defendant's decision of 18 October 1996,

Ð order the defendant to pay to the applicant compensation for the damage suffered by him as a ORDER OF THE COURT OF FIRST INSTANCE result of his not having been promoted to grade A 3 with effect from 25 March 1991, in the form of a sum of 12 December 1997 representing the difference between the levels of in Case T-167/94 (92): Detlef Nölle v. Council of the remuneration payable to grade A 4 officials and European Union and Commission of the European grade A 3 officials for the period from April 1991 to Communities (1) date, and declare, as regards the future, that an adjustment should be made to compensate for the (Taxation of costs) corresponding damage arising from the receipt by the (98/C 55/52) applicant of a smaller pension and the possible receipt by his wife of a smaller widow's pension, (Language of the case: German) Ð alternatively, order the defendant to pay to the In Case T-167/94 (92): Detlef Nölle, trading as Eugen applicant compensation for the damage suffered by Nölle', of Remscheid (Germany), represented by Frank him as a result of his not having been promoted to Montag and Hans-Joachim Prieû, Rechtsanwälte, Brussels, grade A 3 with effect from 1 November 1995, against Council of the European Union (Agents: Jorge covering his period of active employment and the Monteiro, Jürgen Huber, Hans-Jürgen Rabe and Georg M. period during which he is in receipt of his pension and C 55/26 EN Official Journal of the European Communities 20.2.98

also, as the case may be, the subsequent period during Instance of the European Communities on 2 December which his widow receives a widow's pension, 1997 by Alzetta Mauro, Antonini Maria Luisa, Avon Maria Angela, Avon Pietro, Biasotto Marzio, Bianchin Roberto, Bagatin Venanzio, Bit Leo, Bortolus Giuseppe, Ð order the defendant to pay the costs. Bortolussi Urbano, Brovedani Francesco, Bot Roberto, Carcione Leone, Casagrande Elio, Cicagna Giuseppe, Pleas in law and main arguments adduced in support: Cogato Luigi, Corradini Franco, Cozzi Aldo, Dal Pos Marinella, De Re Guido, De Zotti Giovanni, Favalessa Enzo, Furlan Giuseppe, Marchese Michelino, Marson From March 1991 the applicant, who has been in Graziella, Miorini Pierluigi, Picolo Claudio, Pinna Mario, retirement since 1 November 1996, was a grade A 4 Pivetta Giorgio, Pivetta Luciano Stelvio, Pizzolitto Enrico, official employed as the Head of the large and important Sferruggia Mariano, represented by Antonia Pili, of the Management Support Unit of the Joint Research Centre at Pordnone Bar, Anselmo Barone and Giancarlo Pezzano, of Ispra. He claims that, before being transferred to that the Rome Bar, with an address for service in Luxembourg post, he was told by his then superior that this must and at the Chambers of Louis Schiltz, 2, rue du Fort would lead to his promotion to grade A 3. However, he Rheinsheim. was subsequently denied that promotion. The applicant is now contesting the failure to grant him the promotion promised to him in 1991, the continuing failure to The applicants claim that the Court should: promote him during the period from 1991 to 1996 and the fact that he was not promoted in 1996 with retroactive effect from 1 November 1995. To that end, the Ð annul Commission Decision C(97) 2735 final of applicant invokes the prohibition of discrimination and/or 30 July 1997, the principle of equal treatment, together with the duty incumbent on the defendant to have regard for the interests and welfare of officials, since the applicant, like Ð in the alternative, annul Article 5 of that Decision the other heads of units within the administration of the inasmuch as it requires the Member State to recover Joint Research Centre, was entitled to be employed in an the aid (granted as from 1 July 1990), together with A 3 post. The applicant bases his claim for compensation the interest accrued as from the date on which the aid on the fact that the manner in which the specific was paid, procedure for the promotion of officials to grade A 3 was held in 1996 was legally open to challenge. Thus, not only Ð in any event, order the Commission of the European were the reports concerning the applicant not produced by Communities to pay the costs. the due date; in addition, the contemporary reports were not submitted during the course of the selection procedure. Had the procedure been correctly followed, the Pleas in law and main arguments adduced in support: applicant would have been promoted, with retroactive effect from 1 November 1995, to an A 3 post becoming vacant following the retirement of another official. Before The pleas in law and main arguments are similar to those himself going into retirement, the applicant would have relied upon in Case T-288/97 Regione Friuli-Venezia worked for a whole year in that position. He therefore Giulia v. Commission (1). claims that he is entitled to be placed in the position in which he would have found himself if the defendant had (1) Not yet published in the Official Journal. fulfilled its obligations in the correct manner. This means that he is entitled to receive compensation for the material damage suffered by him, in the form of payment of the difference between the remuneration of an A 4 official and an A 3 official, together with a corresponding adjustment in respect of pension payments. Action brought on 9 December 1997 by The Bavarian Lager Company Limited against the Commission of the European Communities (Case T-309/97) (98/C 55/55) Action brought on 2 December 1997 by Mauro Alzetta and Others against the Commission of the European Communities (Language of the case: English) (Case T-298/97) (98/C 55/54) An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 December (Language of the case: Italian) 1997 by the Bavarian Lager Company Limited, represented by Stephen Hornsby, with an address for An action against the Commission of the European service in Luxembourg at the Chambers of AndreÂ Marc, Communities was brought before the Court of First 56Ð58 rue Charles Martel. 20.2.98 EN Official Journal of the European Communities C 55/27

The applicant claims that the Court should: April 1997 that in view of the proposed review of the GBP the Article 169 procedure had been suspended and the reasoned opinion had not been served on the United Ð annul the Commission's Decision dated 16 May 1997, Kingdom Government. 9 July 1997 and 18 September 1997 in so far as it relates to refusal of access to the following documents: The applicant remains of the opinion that the amended GBP still contravenes Article 30 and that the Commission The reasoned opinion of the Commission formulated was mistaken in its decision to terminate the Article 169 following an investigation into the provisions of procedure against the United Kingdom. It considers that Article 7(3) of The Supply of Beer (Tied Estates) Order access to the reasoned opinion will assist in its action 1989 SI 1989/2390, against the United Kingdom Government because that opinion will formally reflect the Commission's views as to the legality under Community law of the GBP as Ð order that the Commission pay the costs of these originally drafted and will enable the applicant's legal proceedings. representatives to advise at a preliminary stage on the likelihood of success in an action against the United Kingdom Government before undertaking the expense of Pleas in law and main arguments adduced in support: litigation.

The applicant, an importer of German beer mainly for sale in public houses and bars in the North of England, Nevertheless, the Commission refused repeated requests by found itself unable to sell its products as a large number the applicant for a copy of the reasoned opinion on the of public houses in the United Kingdom are covered by ground that refusal to grant access to the reasoned tie' arrangements under which they are obliged to opinion was justified where disclosure could undermine purchase their supplies of beer from particular brewers the protection of the public interest, in particular where under exclusive purchasing agreements and because of the Commission inspections and investigations were overwhelming market dominance enjoyed by the major concerned. This exception is provided for in the Code of British brewers. Conduct concerning public access to Commission and Council documents, adopted by the Commission on 8 February 1994. In 1989 The Supply of Beer (Tied Estate) Order 1989 SI 1989/2390 was brought into effect by the United Kingdom Government. This order provided that those UK brewers The applicant submits that this approach is contrary to with an interest in more than 2 000 pubs would be this Code of Conduct which provides that the public will obliged to allow the tenants of those pubs the opportunity have the widest possible access to documents held by the to purchase a guest beer' from another brewery. Commission'. Furthermore, it is in particular contrary to Article 7(2)(a) (known as the Guest Beer Provision GBP') the legal principles set forth by the Court of First Instance provided that the guest beer should be a cask in Case T-105/95 (WWF UK Worldwide Fund for Nature conditioned' beer with an alcoholic strength exceeding v. Commission of the European Communities). 1,2% by volume. Fundamental objectives of proper administration, transparency and accountability demand that the reasoned opinion be released to the applicant as requested. This provision had the effect of barring the applicant's product from the pubs controlled by the regional brewers. Therefore, the applicant contends that the GBP represents a measure having an effect equivalent to a quantitative restriction on imports and is therefore illegal pursuant to Article 30 of the EC Treaty. By effectively denying the British public the opportunity to taste German beer, the Action brought on 16 December 1997 by Nederlandse GBP restricts competition and consumer choice at both Antillen against the Council of the European Union wholesale and retail levels. (Case T-310/97) (98/C 55/56) Having regard to these circumstances, the applicant submitted a complaint to the Commission in April 1993, which by notification to the applicant in September 1995 (Language of the case: English) initiated an investigation into the GBP and had served a notice on the United Kingdom Government to that effect in accordance with the procedure laid down in Article 169 An action against the Council of the European Union was of the EC Treaty. After a press release issued by the brought before the Court of First Instance of the European Commission in August 1996 announcing that the decision Communities on 16 December 1997 by Nederlandse had been taken to serve a reasoned opinion on the United Antillen, represented by P. V. F. Bos and M. M. Slotboom, Kingdom Government, the United Kingdom Government of the Rotterdam Bar, with an address for service in announced a proposal to amend the GBP. As a result of Luxembourg at the offices of Loesch & Wolter, 11, rue this, the applicant was informed by the Commission in Goethe. C 55/28 EN Official Journal of the European Communities 20.2.98

The applicant claims that the Court should: Ð breach of the order of preference established by the EC Treaty in favour of OCT goods,

Ð annul Council Decision 97/803/EC of 24 November 1997 (OJ L 329, 29.11.1997, p. 50) pursuant to Ð infringement of Article 85 of the OCT Decision in Articles 173 and 174 of the EC Treaty, conjunction with Annex XXXII to the LomeÂ Convention,

or, in the alternative, Ð infringement of Article 18 of the Vienna Convention on the Law of Treaties. Ð annul paragraphs 31, 32, 53 (in so far as it concerns Article 232(1), first and second indents), 54 and 55 of (1) OJ L 263, 19.9.1991, p. 1. Article 1 of Council Decision 97/803/EC of 24 November 1997 (OJ L 329, 29.11.1997, p. 50) pursuant to Articles 173 and 174 of the EC Treaty,

and Action brought on 8 December 1997 by Masotti and Ð order the Council to pay the costs. Others against the Commission of the European Communities (Case T-312/97) Pleas in law and main arguments adduced in support: (98/C 55/57)

The contested Decision (hereinafter the Decision') amends Decision 91/482/EEC on the association of the overseas (Language of the case: Italian) countries and territories with the EEC (1) (hereinafter the OCT Decision') by supplementing a number of An action against the Commission of the European provisions. As the OCT Decision is addressed to the Communities was brought before the Court of First Netherlands Antilles pursuant to Articles 237 and 238 of Instance of the European Communities on 8 December the OCT Decision and Annex I to that Decision, expressly 1997 by Masotti srl, Masotti Ermidio, F.lli Pevere listing the Netherlands Antilles as one of the OCT, the autotrasporti srl, Giacomo Folicaldi & figli snc, Tam Decision modifies the rights and obligations of the Alceo di Tam Pierluigi, Nuova Friultrasport srl, Del applicant, in particular the preferential treatment of goods Fabbro Rudi e del Fabbro Raffaele, Assisped srl, originating in the OCT and the system for minimum Castagnara Trasporti srl, Castelletti Ezio autotrasporti di export prices. Castelletti Ezio & C. sas, Cesca Nazzario, Cesca Roberto, D. & G. Spedizioni srl, Tracev srl, S. N. U. A. srl, Tecno The applicant fears that it will suffer substantial damage Trasport srl, Italspurghi ecologia srl, Tib-cunja srl, and be deprived of a valuable tool for its social and Grusovin Edoardo, La Goriziana srl, Luigi Kodermac economic development. succ. srl, Autotrasporti Kusterle srl, Romano Caprara srl, Gia.Tra.Gianesini trasporti srl, Autotrasporti Ribi SpA, Mattia Winkler srl, Interbartolo SpA, Paolo Ceriani The pleas in law raised by the applicant to contest the Autotrasporti srl, Trasporti teatrali di Paoletti Roberto & Decision concern lack of competence, breach of essential C. snc, Gianesini Erminio srl, Mar-Ter spedizioni SpA, procedural requirements and infringements of the represented by Roberto Petiziol and Alessandra Pergolese, EC Treaty, of provisions implementing the EC Treaty and/ of the Udine Bar, with an address for service at their or general principles of Community law. In particular, the Chambers at Udine, via Ginnasio Vecchio, 6. applicant puts forward the following pleas: The applicants claim that the Court should: Ð lack of competence ratione temporis, Ð annul Commission Decision C(97) 2735 final of Ð breach of Articles 131(3), 132(1) and (5), 133(1), 30 July 1997, 136(2) and 227(1) of the EC Treaty, Ð in the alternative, annul Article 5 of that Decision Ð breach of the principle of legal certainty, inasmuch as it requires the Member State to recover the aid (granted as from 1 July 1990), together with the interest accrued as from the date on which the aid Ð breach of Article 3(r) of the EC Treaty in conjunction was paid, with Article 131(2) of the EC Treaty,

Ð in any event, order the Commission of the European Ð breach of the principle of proportionality, Communities to pay the costs. 20.2.98 EN Official Journal of the European Communities C 55/29

Pleas in law and main arguments adduced in support: Pleas in law and main arguments adduced in support:

The pleas in law and main arguments are similar to those The pleas in law and main arguments are similar to those relied upon in Case T-288/97 Regione Friuli-Venezia relied upon in Case T-288/97 Regione Friuli-Venezia Giulia v. Commission (1). Giulia v. Commission (1).

(1) Not yet published in the Official Journal. (1) Not yet published in the Official Journal.

Action brought on 11 December 1997 by Anna Maria Action brought on 17 December 1997 by Dalmine SpA Baldo and Others against the Commission of the against the Commission of the European Communities European Communities (Case T-596/97) (Case T-313/97) (98/C 55/59) (98/C 55/58) (Language of the case: English) (Language of the case: Italian) An action against the Commission of the European An action against the Commission of the European Communities was brought before the Court of First Communities was brought before the Court of First Instance of the European Communities on 17 December Instance of the European Communities on 11 December 1997 by Dalmine SpA, represented by Fabrizio Arossa, 1997 by Mr and Mrs Baldo Anna Maria, Lena Livio, Avvocato, and Rachel Brandenburger, Solicitor of Peresson Francesco, Burello Angelo, Iuretig Ugo, Buiatti Freshfields, with an address for service in Luxembourg at Gianfranco, Buiatti Eligio, Koren Alberto, Plesnicar Luigi, the office of Elvinger, Hoss and Prussen, 2 place Winston Marega Antonella, Interbartolo Gandolfo, Bandelli Luigi, Churchill, Luxembourg. Minutillo Vincenzo, Pontarini Roberto, Misson Luigi, Ferro Luigi, Zanin Mario Tristano, Krt Narcizo, Nicoletti The applicant claims that the Court should: Renato, Damiani Gilberto, Bergamo Giuseppe, Frosutto Renato, Zanin Lucio, Smoljan Liberato, De Monte Gianantonio, Liva Guido, Dominutti Giancarlo, Taboga Ð on the grounds more particularly set out in the Silvio, Mini Dino, Agostinis Luigi, Fontana Silvano, application, annul Articles 2 and 4 of Commission Caruzzi Luciano, Di Bidino Amabile, Tomasin Renzo, Decision C(97) 3036 of 6 October 1997 in so far as Narduzzi Sereno, Collorigh Edo, Rizzi Giuliano, Coppola these Articles relate to the applicant, Aurelio, Piron Robertino, Amerio Paolo (ditta Amerio Carlo & c.), Amerio Paolo (ditta Percotrans di Paolo Amerio & c.), Murello Aurelio, Aristone Claudio, Budola Ð order the Commission to pay the costs. Giuliano, Coppola Aurelio, Deganis Luciano, Fantini Enzo, Uboldi Attilio, Culino Paolino, Bernardis Arrigo, Pleas in law and main arguments adduced in support: Miniussi Alfio, Monai Patrizia, Cok Celeste, Di Vora Angelo, represented by Vincenzo Cinque and Luciana Candriella, of the Udine Bar, with an address for service at The applicant, a public limited company incorporated the Chambers of Luciana Candriella, aÁ Udine, via under Italian law, partially challenges a Decision arising Morpurgo, 34. out of an investigation by the Commission into alleged infringements of Article 85 of the EC Treaty by producers of steel tubes. According to the applicant, even though The applicant claims that the Court should: Article 4 of the contested Decision formally mentions three addressees, the same provision shows that the Ð annul Commission Decision C(97) 2735 final of Commission has attempted to notify the Decision to 30 July 1997, Siderca Saic, an indirect parent company of the applicant, and to the Techint Group', both established in Argentina, by delivering it to the applicant at its registered address. Ð in the alternative, annul Article 5 of that Decision inasmuch as it requires the Member State to recover the aid (granted as from 1 July 1990), together with The applicant submits in this regard that the Commission the interest accrued as from the date on which the aid has infringed an essential procedural requirement, misused was paid, its powers and infringed the EC Treaty and the rules relating to its application, since it is not entitled to send a request for information to third parties by way of a Ð in any event, order the Commission of the European Decision pursuant to Article 11(5) of Regulation No 17 Communities to pay the costs. notified to the applicant and to require the latter to pass C 55/30 EN Official Journal of the European Communities 20.2.98 on the Decision to those third parties who are addressees Communities on 19 December 1997 by BSC Footwear of the Decision. In addition, the Commission may not Supplies, represented by Alasdair Bell and Mark Powell, validly notify the Decision to two other supposed with an address for service in Luxembourg at the addressees via the applicant, simply on the basis of the Chambers of Loesch & Wolter, 11, rue Goethe. limited corporate links between the applicant and Siderca. It is submitted that the notion of a single economic entity is not relevant to the question whether a duty may be The applicants claim that the Court should: imposed on one addressee of a Decision to pass on copies of that decision to other addressees. Moreover, inasmuch as one of the addressees of the decision is the Techint Ð annul Council Regulation (EC) No 2155/97 imposing Group' an additional difficulty arises, since the Techint definitive anti-dumping duties on imports of textile Group' is not an identifiable legal entity but an upper footwear originating in the People's Republic of appellation used to refer to a number of different China and Indonesia and collecting definitively the undertakings engaged in diversified businesses ultimately provisional duty imposed, and controlled by San Faustin NV. Accordingly, even if the applicant were to be required to pass on the decision, it would be unable to do so since it would be unable to Ð order the Council to pay the costs of the applicant identify one of the addressees of the decision. companies in the present proceedings.

Pleas in law and main arguments adduced in support: Furthermore, it is clear from the wording of Article 2 of the contested Decision that the Commission considers the applicant to be jointly liable with each of the other The applicants, who are the same as those in Case T-73/ addressees for the payment of any periodic penalty 97 (1), seek the annulment of Council Regulation (EC) payments which would be imposed pursuant to No 2155/97 (2) imposing a definitive anti-dumping duty Article 16(1)(c) of Regulation No 17 on the Techint on imports of footwear with textile uppers originating in Group' and/or Siderca, should Siderca not provide the the People's Republic of China and Indonesia. The pleas information requested in the Decision. In so doing, the in law and main arguments concerning the alleged Commission has infringed both Articles 11 and 16 of infringement of Article 1(4) of Regulation (EC) No 3283/ Regulation No 17 and the principle of individual liability 94 (3) are the same as those raised in that case. which is enshrined in that Regulation. Neither Article 11 nor Article 16, nor any other provision of Regulation No 17 empowers the Commission to impose penalty In addition, the applicants plead infringement of payments on one undertaking for the failure by another Article 3(1) of Regulation (EC) No 3283/94 in that undertaking to supply information requested from it in a material injury was not established in relation to Decision pursuant to Article 11(5). Moreover, as a Community industry' as defined by law. consequence of the enforcement of the contested Decision, it would be deprived of its essential procedural rights of defence. Furthermore, the applicants plead infringement of Articles 20(4) and 20(5) of Regulation (EC) No 3283/94. In the administrative proceedings prior to the adoption of Finally, the applicant submits that the contested Decision, Regulation (EC) No 2155/97 the Commission failed to apart from being inconsistent, contradictory and respect the procedural guarantees to which the applicants insufficiently reasoned, fixes a higher level of penalty were entitled pursuant to Article 20 of the basic anti- payments than is permitted by Article 16(1) of Regulation dumping Regulation. In particular, the right of the No 17. applicants to obtain final disclosure', and to comment on the contents of that disclosure, was infringed by the Commission. The applicants' rights of defence were thereby violated.

Finally, the applicants claim that the decision to impose a Action brought on 19 December 1997 by BSC Footwear 49,2% anti-dumping duty on a product which it is Supplies and Others against the Council of the European practically impossible to source in the Community (i.e. Union vulcanised footwear) is disproportionate and, therefore, unlawful. (Case T-598/97)

(98/C 55/60) (1) OJ C 166, 31.5.1997, p. 17. (2) OJ L 298, 1.11.1997, p. 1. (3) Council Regulation (EC) No 3283/94 of 22 December 1994 (Language of the case: English) on protection against dumped imports from countries not members of the European Community (OJ L 349, 31.12.1994, p. 1).

An action against the Council of the European Union was brought before the Court of First Instance of the European 20.2.98 EN Official Journal of the European Communities C 55/31

Action brought on 19 December 1997 by Swedish Match of Article 7(4)(a) of the basic anti-dumping Regulation Advertising Products NV/SA against the Council of the since respect for the right to a fair hearing is required of European Union the Community authorities and not only of the parties. (Case T-599/97) That refusal also constitutes an infringement of the requirement of transparency, which is laid down by (98/C 55/61) implication in Articles 7(4)(a) and 8(2)(b). The Commission also infringed the applicant's right to a fair (Language of the case: English) hearing, as laid down in Article 7(4)(b) of the basic anti- dumping Regulation, by its omission of vital information An action against the Council of the European Union was relevant to the final amount of the anti-dumping duty brought before the Court of First Instance of the European imposed on a Japanese competitor. Communities on 19 December 1997 by Swedish Match Advertising Products NV/SA, represented by Francisco The applicant also pleads infringement of Article 2 of the Miguel Rodero López and Dorio Mutti, with an address basic anti-dumping Regulation since the dumping for service in Luxembourg at the Chambers of Lucy determination made by the Community institutions is Dupong, 14a, rue des Bains. vitiated by manifest error in the assessment of facts.

The applicant claims that the Court should: Finally, the applicant pleads infringement of Article 190 of the EC Treaty. The Council has limited itself to rejecting Ð declare that Article 1 of Council Regulation (EC) the applicant's arguments merely on the ground that the No 2025/97 is partially void within the meaning of investigation has disclosed something other than that the second paragraph of Article 174 of the EC Treaty, alleged by the applicant. All that the applicant learns from since the aim of this action is not to have the current the statement of the reasons for the contested Regulation anti-dumping duties declared void but to have them is that its claims concerning the dumping determination replaced by more stringent measures fixing higher have been rejected; it cannot ascertain the reasons which, anti-dumping duties on imports of advertising matches in consequence of the rejection of the applicant's originating in Japan, arguments, led the Council to impose upon a Japanese competitor a wholly ineffective anti-dumping duty based Ð maintain the effects of the current anti-dumping on its incorrectly calculated dumping margin. duties, in accordance with the second paragraph of Article 174 of the EC Treaty, until the competent (1) OJ L 284, 16.10.1997, p. 57. institutions adopt the new measures sought by this (2) OJ L 209, 2.8.1988, p. 1. action, and

Ð order the defendant to pay the costs.

Pleas in law and main arguments adduced in support: Action brought on 23 December 1997 by Onno Plug On 15 October 1997 the Council adopted Regulation against the Commission of the European Communities (EC) No 2025/97 (1) imposing definitive anti-dumping (Case T-608/97) duties on imports into the Community of advertising matches originating in Japan and ordered to collect (98/C 55/62) definitively the provisional duty imposed. The rate of duty applicable to the net, free-at-Community-frontier price, before duty, is to be 43,2%, with the exception of imports (Language of the case: French) manufactured and exported by some specified companies. The rates of duty for these companies ranges from 9,9 to An action against the Commission of the European 27,8%. Communities was brought before the Court of First Instance of the European Communities on 23 December The applicant submits that the current anti-dumping 1997 by Onno Plug, residing at Thôneux (Switzerland), duties are not high enough in order to prevent the represented by Georges Vandersanden and Laure Levi, of material injury that the Community industry, and in the Brussels Bar, with an address for service in particular the applicant itself, is still suffering. The Luxembourg at Fiduciaire Myson saÁrl, 30 rue de applicant is therefore asking that the current anti-dumping Cessange. duties be replaced by more stringent (i.e. higher) duties by the competent institutions. The applicant claims that the Court should: The applicant pleads infringement of Articles 7(4)(a) and 8(2)(b) of Council Regulation (EEC) No 2423/88 (2) Ð annul the decision contained in the letter from the (hereinafter the basic anti-dumping Regulation') on the appointing authority of 14 January 1997 and, in so far ground that the Commission refused to provide the as necessary, the express decision rejecting the FeÂdeÂration EuropeÂenne des Fabricants d'Allumettes (FEFA) applicant's complaint, adopted on 12 September 1997 with information. That refusal constitutes an infringement and notified on 22 September 1997, C 55/32 EN Official Journal of the European Communities 20.2.98

Ð order the Commission to pay the entire costs. The applicants claim that the Court should:

Pleas in law and main arguments adduced in support: Ð annul the decision of the Council of the European Union of 3 November 1997 in so far as the Council The applicant, formerly a temporary servant of the thereby refuses to release documents from the Legal European Commission, has already brought two cases Services, including in particular: before the Court of First Instance (1). The essential facts in the present case are the same as those in Case T-47/97. Ð DOK.R/2026/77 (ENV.118) (AGRI 563),

The present case is directed against the decision of the Ð DOK.R/1867/77 (JUR.95) (ENV.106), and appointing authority, contained in the letter which the latter sent to the applicant on 14 January 1997, notified on 22 January 1997. In that letter, the appointing Ð DOK.R/2048 dk/77 (ENV.199) (AGRI 568). authority refused to accede to the applicant's request to comply with the judgment of the Court of First Instance of 27 February 1992 in Case T-165/89 (2) and thus Pleas in law and main arguments adduced in support: withdraw the draft decision, as provided for in Article 19 of the Rules on the Insurance of Officials of the European Communities against the Risk of Accident and of The applicants in the present case have brought Occupational Disease, which it drew up on 27 November proceedings against the Danish Prime Minister concerning 1996 on the basis of the medical opinions of new experts. the question whether he was entitled to ratify the Treaty In the present action the applicant seeks the annulment of on European Union, on the ground that accession to that the decision contained in the letter of 14 January 1997 Treaty was contrary to Article 20 of the Danish Grundlov which takes a definitive position both as to the validity of (Basic Law), which provides that powers vested in the the draft decision of 27 November 1996 and on the sole authorities of the Kingdom may, to a specified extent, be means of challenging that action (by Committee). The transferred by legislation to international authorities. The applicant pleads breach of res judicata as well as failure to case is at present pending before the Danish Hùjesteret comply with the judgment in Case T-165/89, misuse of (Supreme Court). powers, infringement of Articles 18 and 19 of the Insurance Rules, breach of the principle of sound management as enshrined, for example, in Article 15 of In the proceedings before the Hùjesteret, it has, according Annex VIII to the Staff Regulations and, in the alternative, to the applicants, become essential to gain access to infringement of Article 73 of the Staff Regulations and certain documents of the Council of the European Union Article 12 of the Insurance Rules. concerning legal measures which indicate the extent of the competence transferred to the European Union by the Danish legislation governing accession, including in (1) Case T-165/89 (OJ C 23, 31.1.1990, p. 9); Case T-47/97 (OJ C 142, 10.5.1997, p. 22). particular the question of the application of Article 235 of (2) [1992] ECR II-367. the Treaty prior to the Maastricht Treaty. During the proceedings before the Hùjesteret, the applicants requested that the Danish Government be ordered to produce a long list of documents, relating in particular to the views expressed by the other Member States and the Council's Legal Service regarding the legal basis for Council Directive 79/409/EEC of 2 April 1979 on the conservation Action brought on 23 December 1997 by Hanne Norup of wild birds (OJ L 103, 25.4.1979, p. 1), and the Carlsen and Others against the Council of the European applicants' pleas were upheld in part by order of the Union Hùjesteret of 3 November 1997. The Hùjesteret did not in (Case T-610/97) this connection address the issue of the release of documents held by the Council, an issue of which the (98/C 55/63) applicants had notified the Council prior to the order.

(Language of the case: Danish) In the contested decision, the Council acceded to the request for the release of documents, with the exception of An action against the Council of the European Union was those setting out the views of the Legal Services of the brought before the Court of First Instance of the European Council and the Commission, to which the applicants also Communities on 23 December 1997 by Hanne Norup sought access. The Council stated in this connection that Carlsen, Ingeborg Fangel, Nicolas Fischer, Jùrgen Erik those views, in accordance with consistent practice, would Hansen, Marianne Henriksen, Ole Donbñk Jensen, not be released, on the ground that publication of the Yvonne Petersen, Iver Reedtz-Thott, Lars Ringholm and opinions of the Legal Services on issues dealt with by the Arne Würgler, represented by Karen Dyekjñr-Hansen, of Council could adversely affect the public interest in the the Copenhagen Bar, with an address for service in maintenance of legal certainty and the stability of Luxembourg at the Chambers of Aloyse May, 31 Grand- Community law, as well as the public interest in ensuring Rue. that the Council has access to independent legal advice. 20.2.98 EN Official Journal of the European Communities C 55/33

In support of their plea in law, the applicants argue that Menen (Belgium), represented by P. Cavenaille and K. the Council has failed to comply with the duty to state Tanghe, of the LieÁge Bar, with an address for service in reasons pursuant to Article 190 of the Treaty. The Council Luxembourg at the Chambers of A. Schmitt, 62, avenue has failed to explain adequately why release of the Guillaume. documents to which access has been refused should be contrary to the public interest'. Since the reason given consists merely in a standard reference to opinions drafted The applicant claims that the Court should: by the Legal Services being exempted en bloc from the right of access, without any kind of specific consideration being paid as to whether the interests invoked regarding Ð declare the application admissible and well founded, the maintenance of legal certainty and the stability of Community law apply in regard to the documents requested, the decision must on that ground alone be Ð rule that the defendants are liable for the damage annulled as being vitiated by fundamental procedural suffered by the applicant, defects. Ð consequently, order the defendants jointly and The applicants further argue that the decision is contrary severally to pay a sum provisionally fixed at to fundamental principles of law concerning application of BEF 46 655 281, subject to increase or decrease during the Treaty, including in particular the principle in force on the course of the proceedings, together with 8% transparency in the decision-making process (see interest from 1 January 1993, the date on which the Declaration No 17 in the Final Act to the Treaty on damage was effectively suffered, to the date of European Union, the Code of Conduct concerning Public payment in full, Access to Council and Commission Documents (93/730/ EC, OJ L 340, 31.12.1993, p. 41), and Council Decision 93/731/EC of 20 December 1993 on public access to Ð order the defendants jointly and severally to pay the Council documents (OJ L 340, 31.12.1993, p. 43)). The costs. applicants submit in this connection that the exceptions to the fundamental principle of transparency must be Pleas in law and main arguments adduced in support: narrowly construed, and the Council cannot therefore exempt an entire group of documents from the right of access merely on the basis of their origin. On the contrary, The applicant, a firm of customs agents, complains that an examination must be made in each case as to whether the defendants ruined its intra-Community business with the interests referred to in the Code of Conduct provide effect from 1 January 1993 by abolishing customs controls justification for exempting a specific document from the and formalities at internal borders through a series of acts right of access. There are in this case no such specific which it specifies in detail. It also complains that the interests such as could justify the refusal to grant access. defendants failed to adopt any effective transitional measures enabling customs agents progressively to adapt to the new situation. In that regard, it pleads inter alia In the alternative, the applicants submit that the interests breach of acquired rights and violation of the principle of pleaded by the Council do not appear to apply in regard the protection of legitimate expectations. to the documents which they have requested. On the contrary, the maintenance of legal certainty and the stability of Community law can be guaranteed by allowing the public to discover the full basis on which the Council has adopted secondary legal measures.

Action brought on 24 December 1997 by Wybo NV against the Commission of the European Communities and the Council of the European Union (Case T-619/97) Action brought on 24 December 1997 by Transfluvia NV against the Commission of the European Communities (98/C 55/65) and the Council of the European Union (Case T-611/97) (Language of the case: Dutch) (98/C 55/64) An action against the Commission of the European (Language of the case: Dutch) Communities and the Council of the European Union was brought before the Court of First Instance of the European Communities on 24 December 1997 by Wybo NV, of An action against the Commission of the European Poperinge (Belgium), represented by P. Cavenaille and K. Communities and the Council of the European Union was Tanghe, of the LieÁge Bar, with an address for service in brought before the Court of First Instance of the European Luxembourg at the Chambers of A. Schmitt, 62, avenue Communities on 24 December 1997 by Transfluvia NV, of Guillaume. C 55/34 EN Official Journal of the European Communities 20.2.98

The applicant claims that the Court should: relied upon against the applicant for the purposes of deducting, in respect of the period from 1 January Ð declare the application admissible and well founded, 1989 to 30 September 1995 inclusive, Community tax from the income earned by her from her activities as a Ð rule that the defendants are liable for the damage freelance interpreter working for the defendant, suffered by the applicant,

Ð consequently, order the defendants jointly and Ð order the defendant to repay the Community tax paid severally to pay a sum provisionally fixed at by the applicant during the period from 1 January BEF 10 377 559, subject to increase or decrease during 1989 to 30 September 1995 inclusive, currently the course of the proceedings, together with 8% estimated by the applicant as amounting to interest from 1 January 1993, the date on which the ECU 43 265, together with interest at the rate of 8% damage was effectively suffered, to the date of or at the legal rate applicable, payment in full, Ð by way of subsidiary relief, Ð order the defendants jointly and severally to pay the costs. order the defendant to compensate the applicant for the damage, currently estimated to amount to BEF Pleas in law and main arguments adduced in support: 642 199, together with such further damage as may be specified, arising from additional claims by the Belgian The pleas in law and main arguments are the same as in tax and/or social security authorities in relation to the Case T-611/97 (1). period from 1 January 1989 to 30 September 1995 inclusive during which the defendant retained (1) See page 33 of this Official Journal. Community tax deducted from the applicant's income,

Ð order the defendant to pay the costs.

Pleas in law and main arguments adduced in support: Action brought on 30 December 1997 by E against the The defendant was not entitled to levy Community tax. Commission of the European Communities (Case T-2/98) 1. By levying Community tax in respect of the applicant, (98/C 55/66) the Commission acted contrary to Community law, in particular Article 13 of the Protocol on the Privileges (Language of the case: Dutch) and Immunities and the rules implementing that provision together with Article 28 of the Merger An action against the Commission of the European Treaty, as well as the principle of legality; in so doing, Communities was brought before the Court of First it misused, alternatively exceeded, its powers. Instance of the European Communities on 30 December 1997 by E, residing in Brussels, represented by G. van der 2. For the reasons stated above, the defendant's refusal to Wal, Advocaat with a right of audience before the Hoge repay to the applicant the Community tax paid by the Raad der Nederlanden (Supreme Court of the latter since 1989 is unlawful; in addition, it is clearly Netherlands), The Hague, and L. Y. J. M. Parret, of the under a duty to repay the sums paid by the applicant Brussels Bar, with an address for service in Luxembourg at which the latter was not liable to pay. the Chambers of A. May, 31 Grand-Rue. 3. Moreover, the refusal to repay the sums in question is The applicant claims that the Court should: contrary to the principles of the protection of Ð annul, or at least declare void, the decision contained legitimate expectations and of equality. in the defendant's letter of 31 October 1997 refusing the applicant's request for repayment of the In so far as the Court considers that it cannot order the Community tax paid by the applicant since 1 January defendant to repay the Community tax paid by the 1989, applicant, the applicant applies for a declaration by the Court that the defendant is liable for the damage suffered Ð declare void Article 8 of the agreement with the by the applicant as a result of the defendant's unlawful A.I.I.C., alternatively rule that that Article may not be conduct (Article 215 of the EC Treaty).