title: Case T-233/00: Action brought on 6 September 2000 by Scanbox Entertainment A/S against the Commission of the European Communities

text:
C 316/36              EN                    Official Journal of the European Communities                                       4.11.2000
Pleas in law relied on:       Incorrect     interpretation     of      —    the applicant is the only person capable of being regarded
                              Rule 18(2) of Commission Regu-                as distributor of the film works in question;
                              lation implementing Council
                              Regulation No. 40/94 (1) —               —    the applicant holds the exclusive distribution rights for
                              opponent’s obligation to provide              the relevant territories with regard to the films in question;
                              translations into the language of
                              the opposition proceedings of the
                              evidence in support of the oppo-         —    the applicant has contractually acquired the exclusive
                              sition.                                       distribution rights over the film works in question;
                                                                       —    under contracts with the film production companies, the
(1) Commission Regulation (EC) No 2868/95 of 13 December 1995               applicant is required to pay a fixed amount for acquisition
    implementing Council Regulation (EC) No 40/94 on the Com-               of the exclusive distribution rights. This amount is
    munity trade mark (OJ L 303, p. 1).                                     independent of utilisation and commercial financial profit
                                                                            in the event of success or failure;
                                                                       —    the applicant is the only person to take decisions
                                                                            concerning release of individual films within the terri-
                                                                            tories concerned;
                                                                       —    the applicant is the only person who bears responsibility
Action brought on 6 September 2000 by Scanbox Enter-                        for, undertakes and implements any commercial activity
tainment A/S against the Commission of the European                         concerning marketing for the public;
                         Communities
                                                                       —    the applicant is the only person bearing financial
                        (Case T-233/00)                                     responsibility for release and distribution;
                        (2000/C 316/68)                                —    the applicant bears full legal responsibility for distribution
                                                                            of the films in question within the individual territories;
                  (Language of the case: Danish)                       —    for Norway and Sweden, the applicant has entered into
                                                                            an agreement with AB Svensk Filmindustri, pursuant to
                                                                            which AB Svensk Filmindustri has undertaken solely to
An action against the Commission of the European Communi-                   ensure practical delivery and handling of individual copies
ties was brought before the Court of First Instance of the                  of film works to cinemas;
European Communities on 6 September 2000 by Scanbox
Entertainment A/S, Farum (Denmark), represented by Torben
Steffensen, of Dragsted Schlüter Aros, Copenhagen.                     —    it follows expressly from section 2.4 on film distributors
                                                                            in ‘Guidelines for the submission of proposals to obtain
                                                                            financial support’ that sub-distributors contracted by
The applicant claims that the Court should:                                 distributors do not fall within that category;
—     require the Commission to recognise Scanbox Entertain-           —    AB Svensk Filmindustri, which cannot even be regarded
      ment A/S as distributor and consequently as lawful                    as a sub-distributor, is not entitled to any portion of the
      recipient of the financial allocation under Media II —                financial allocation for the films in question;
      Development and Distribution (1996-2000), Call for
      Proposals 8/2000;
                                                                       —    AB Svensk Filmindustri has no legal or financial responsi-
                                                                            bility, and bears no risk, in its practical handling and
—     declare the Commission’s decision of 30 June 2000                     delivery of the applicant’s copies of the film works in
      invalid.
                                                                            question;
                                                                       —    AB Svensk Filmindustri has no independent competence
Pleas in law and main arguments
                                                                            or decision-making power in relation to setting of the
                                                                            budget, date of release, marketing and promotional
This case concerns the issue of who can be regarded as                      activities etc.
distributor and thus entitled to receive a financial allocation
under Call for Proposals 8/2000 on the basis of the Council
decision of 10 July 1995 on the implementation of a pro-               (1) OJ 1995 L 321, p. 25.
gramme encouraging the development and distribution of
European audiovisual works (Media II — Development and
Distribution (1996-2000)) (1). The applicant puts forward the
following pleas in support of its submissions:


               2.7.2015

               EN

               Official Journal of the European Union

               C 217/22

         Request for an Advisory Opinion from the EFTA Court by Eidsivating lagmannsrett dated 11 February 2015 in the case of Matja Kumba T. M’bye and Others v Stiftelsen Fossumkollektivet
   (Case E-5/15)
   (2015/C 217/08)
   A request has been made to the EFTA Court by a letter dated 11 February 2015 from Eidsivating lagmannsrett (Eidsivating Court of Appeal, Norway), which was received at the Court Registry on 13 February 2015, for an Advisory Opinion in the case of Matja Kumba T. M’bye and Others v Stiftelsen Fossumkollektivet on the following questions:

               1.

               Is an average weekly working time of 84 hours (‘7-7 rotation’) in a cohabitant care arrangement in breach of Article 6, see also Article 22(1)(a), of the Working Time Directive (Directive 2003/88/EC)?

               2.

               Is a national provision, under which an employee’s consent to working more than 60 hours per week in a cohabitant care arrangement cannot be revoked, compatible with the rights that employees have under Article 6, see also Article 22, of the Working Time Directive?

               3.

               Is dismissal following a failure to consent to a working time arrangement of more than 48 hours over a seven-day period a sanction or ‘detriment’ within the meaning of Article 22(1)(a), see also (b), of the Working Time Directive?


title: Case T-217/02: Action brought on 22 July 2002 by Ter Lembeek International N.V. against the Commission of the European Communities

text:
12.10.2002                EN                       Official Journal of the European Communities                                      C 247/15
—      infringement of the principle of legality of administrative            Pleas in law and main arguments
       action and of the first subparagraph of Article 4(1) of
       Regulation No 1073/1999 of the European Parliament
       and of the Council ( 3), in that the investigations of the
       European Anti-Fraud Office were opened or reopened on                  The applicant was involved as a shareholder in three companies
       the basis of information obtained in breach of the secrecy             under the name Verlipack. When it became a shareholder in
       of the proceedings of the Disciplinary Board which is to               those companies it assumed responsibility for repurchasing a
       be observed under the second paragraph of Article 6 of                 specified number of shares from the public authorities. In
       Annex II to the Staff Regulations, in conjunction with a               1991 the authorities concerned insisted on compliance with
       breach of the obligation of discretion laid down for                   this obligation of repurchase and the applicant accordingly
       officials by the second paragraph of Article 17 of the                 found itself obliged to buy back the shares. Repurchase was
       Staff Regulations and for members of the Commission by                 spread over several years.
       Article 287 of the EC Treaty.
                                                                              In 1996 the Regional Authority for Wallonia pressed for
( 1) Decision of 2 June 1999 concerning the terms and conditions for          accelerated repurchase of those shares by the applicant. The
     internal investigations in relation to the prevention of fraud,          latter thereupon took over the shares from the Regional
     corruption and any illegal activity detrimental to the Communities’      Authority for Wallonia, which thereby obtained an outstand-
     interests (OJ 1999 L 149, p. 57).                                        ing claim against the applicant. According to the applicant,
( 2) That case was brought to a close by an order of removal from the         the purchase had no economic significance for it and the
     register of 3 July 2000 (OJ 2000 C 259, p. 31).                          shares were of no value to it. The shares, however, had to be
( 3) Regulation of 25 May 1999 concerning investigations conducted            bought for a fixed price. The applicant also derived no
     by the European Anti-Fraud Office (OLAF) (OJ 1999 L 136, p. 1).
                                                                              advantage whatever from the shares as they were shortly
                                                                              afterwards brought into a separate company over which the
                                                                              applicant had no control.
                                                                              In 1998 the Regional Authority for Wallonia reached agree-
                                                                              ment with the applicant that it would transfer its shares in
                                                                              Verlipack Holding II to that Authority. In exchange, the claim
                                                                              which that Authority held against the applicant would lapse.
Action brought on 22 July 2002 by Ter Lembeek Inter-
national N.V. against the Commission of the European
                              Communities
                                                                              The decision under challenge treats this latter agreement as
                                                                              constituting State aid and as being incompatible with the
                                                                              Common Market. That decision states that the shares given in
                            (Case T-217/02)
                                                                              payment were at that moment in fact worthless. The Regional
                                                                              Authority for Wallonia thus permitted its claim against the
                                                                              applicant to lapse without receiving any consideration. The
                            (2002/C 247/24)
                                                                              decision accordingly also takes the view that the applicant
                                                                              obtained free of cost the shares which it was required to
                                                                              purchase from the Regional Authority for Wallonia in 1996.
                       (Language of the case: Dutch)
                                                                              According to the applicant, the decision under challenge
                                                                              breaches Article 87(1) EC and Articles 7 and 13 of Regulation
An action against the Commission of the European Communi-                     No 659/1999. (1) It argues that no benefit was obtained. In its
ties was brought before the Court of First Instance of the                    view, the economic value of the shares when they were
European Communities on 22 July 2002 by Ter Lembeek                           repurchased in 1996 was nil, or even negative, and it also
International N.V., having its registered office in Wielsbeke                 derived no advantage from those shares. Moreover, according
(Belgium), represented by Jean-Pierre Vande Maele, Frank                      to the applicant, it was not the beneficiary of any aid measure,
Wijckmans and Filip Tuytschaever.                                             as it held the shares only for a very short period of time. It
                                                                              goes on to submit that there was no distortion of competition.
                                                                              According to the decision under challenge, competition was
                                                                              distorted within the textiles sector, whereas the alleged aid
The applicant claims that the Court should:                                   measure was granted within the glass sector.
1.     Annul Articles 1 and 2 of the Commission decision of
       24 April 2002 concerning State aid granted by Belgium
                                                                              The applicant pleads, second, an infringement of the pro-
       to the Beaulieu Group (Ter Lembeek International);
                                                                              portionality principle and Article 14 of Regulation No 659/
                                                                              1999. In its opinion, the requested repayment of the aid bears
2.     Order the defendant to pay the costs.                                  no relation to the advantage allegedly enjoyed.
 ---pagebreak--- C 247/16                EN                      Official Journal of the European Communities                                   12.10.2002
The applicant further claims that there has been an infringe-              Pleas in law and main arguments
ment of the principle of equal treatment and argues that two
separate valuation methods are applied in the decision under
challenge. For the valuation of the shares which it was forced             The applicant, a grade A 3 official working in the External
to purchase, the decision applies a nominal price, which,                  Relations Directorate-General, is contesting the rejection by
however, according to the applicant, was much higher than                  the appointing authority of her application for the post of
the true value of the shares. For the valuation of the shares              director of Directorate B (Multilateral relations and human
which the applicant transferred to the Regional Authority for              rights).
Wallonia by way of payment, however, the decision applies
the real value of the shares, which at that time was considered
to be zero.                                                                In support of her claims, the applicant pleads:
                                                                           —     infringement of Articles 7, 27, 29(1)(a) and 45 of the
In conclusion, the applicant argues that there has been an
infringement of the principle that reasons must be given.                        Staff Regulations, breach of the principle that officials
                                                                                should have reasonable career prospects and of the
                                                                                principle of non-discrimination, and non-compliance
                                                                                with the terms of the vacancy notice. She considers in
( 1) Council Regulation (EC) No 659/1999 of 22 March 1999 laying
                                                                                that regard that, by omitting to carry out an examination
     down detailed rules for the application of Article 93 of the EC
     Treaty (OJ 1999 L 83 of 27.3.1999, pp 1 to 9).                              of the comparative merits of the candidates, the appoint-
                                                                                ing authority ultimately took into consideration an
                                                                                application for the post which manifestly failed to fulfil
                                                                                the conditions laid down by the vacancy notice;
                                                                           —     non-compliance with the obligation to provide a state-
                                                                                ment of reasons.
Action brought on 18 July 2002 by Daniela Napoli
Buzzanca against the Commission of the European Com-
                              munities
                          (Case T-218/02)
                                                                           Action brought on 22 July 2002 by Antonio Silva against
                         (2002/C 247/25)                                            Commission of the European Communities
                    (Language of the case: French)                                                    (Case T-220/02)
                                                                                (2002/C 247/26)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the                                     (Language of the case: French)
European Communities on 18 July 2002 by Daniela Napoli
Buzzanca, residing in Brussels, represented by Georges Vander-
sanden and Laure Levi, lawyers.
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
The applicant claims that the Court should:                                European Communities on 22 July 2002 by Antonio Silva,
                                                                           residing in Brussels, represented by Albert Coolen, Jean-Noël
—      annul the decisions of the appointing authority, probably           Louis and Etienne Marchal, lawyers.
       adopted on 30 January 2002, appointing Ms S. as
       director, in grade A 2, of Directorate B (Multilateral
       relations and human rights) of the External Relations               The applicant claims that the Court should:
       Directorate-General (RELEX) and rejecting the application
       of the applicant for that post;                                     —     annul the decision of the Commission not to promote
                                                                                the applicant to Grade A 4 in the 2001 promotions
—      order the defendant to pay damages assessed, as at the                    procedure, as evidenced by the publication in Adminis-
       date of the action and subject to possible increase, in the               trative Information No 72/2001 of 14 August 2001 of
       sum of 23 213,96 euros;                                                   the list of officials promoted to that grade;
—      order the defendant to pay all the costs.                           —     order the defendant to pay the costs.


title: Case C-358/01: Action brought on 19 September 2001 by the Commission of the European Communities against the Kingdom of Spain

text:
C 303/14               EN                    Official Journal of the European Communities                                     27.10.2001
Communities, represented by Richard Lyal, acting as agent,              The applicant claims that the Court should:
with an address for service in Luxembourg.
                                                                        —     Declare that, by refusing access to the Spanish market to
The Applicant claims that the Court should:                                   products lawfully manufactured and commercialised in
                                                                              other Member States under the name of ‘limpiador con
(1) declare that Council Directive 2001/44/EC of 15 June                      lejı́a’ (cleaning product containing bleach) or similar, with
      2001 (1) amending Directive 76/308/EEC on mutual                        an active chlorine content of less than 35 grams per litre,
      assistance for the recovery of claims resulting from                    the Kingdom of Spain has failed to fulfil its obligations
      operations forming part of the system of financing the                  under Article 28 of the EC Treaty; and
      European Agricultural Guidance and Guarantee Fund,
      and of agricultural levies and customs duties and in
      respect of value added tax and certain excise duties is           —     Order the Kingdom of Spain to pay the costs.
      void;
(2) maintain the effects of the directive until the entry into
      force of a directive adopted on the correct legal basic;
(3) order the Council of the European Union to pay the costs.           Pleas in law and main arguments
Pleas in law and main arguments                                         The provisions of law in force in Spain, as interpreted and
                                                                        applied by the Spanish authorities, contain restrictions which
                                                                        apply without distinction to domestic products and imported
The Council adopted Directive 2001/44/EC on the basis of                products, with regard to the naming and labelling of the
Articles 93 and 94 EC, rather than on the basis of Article 99           product in question [‘limpiador con lejı́a’ (cleaning product
EC, as proposed by the Commission, deeming the measure to               containing bleach)]. Although the objective of consumer
concern fiscal provisions.                                              protection may justify national measures which hinder intra-
                                                                        Community trade, such measures must be necessary and
                                                                        proportionate to the achievement of that objective.
The Commission considers that the object of the legislation in
question is the completion of the internal market and that it
does not constitute a set of measures harmonising tax pro-
visions. The correct legal base is, therefore, Article 95 EC.           The Commission rejects the argument put forward by the
                                                                        Spanish authorities that it is essential for the protection of
                                                                        Spanish consumers because, in the view of those authorities,
The Commission accordingly submits that the directive has
                                                                        the word ‘bleach’ is indissociable from a product with the
been adopted on an incorrect legal basis and should be
                                                                        disinfecting power associated with that level of active chlorine.
annulled.
                                                                        First, it is not possible, and thus disproportionate, to require
                                                                        that an end product (bleach cleaners) composed of various
(1) OJ L 175, 28.6.2001, p. 17.                                         ingredients (including bleach) should present the same disinfec-
                                                                        tant characteristics as a single one of those ingredients (bleach).
                                                                        Secondly, the Commission considers that consumer protection
                                                                        may be achieved by means other than by allowing only certain
                                                                        marketing names, such as by the affixing of appropriate
                                                                        labelling. Moreover, the Commission would draw attention to
                                                                        Council Directive 88/379/EEC (1) of 7 June 1988 on the
                                                                        approximation of the laws, regulations and administrative
Action brought on 19 September 2001 by the Com-                         provisions of the Member States relating to the classification,
mission of the European Communities against the                         packaging and labelling of dangerous preparations and Com-
                        Kingdom of Spain                                mission Recommendation 89/542/EEC (2) of 13 September
                                                                        1989 for the labelling of detergents and cleaning products.
                         (Case C-358/01)                                The application of the aforementioned provisions allows the
                                                                        consumer to be informed about the composition of the
                         (2001/C 303/23)                                product which he is about to purchase.
An action against the Kingdom of Spain was brought before
the Court of Justice of the European Communities on 19 Sep-             (1) OJ L 187, 16.7.1988, p. 14.
tember 2001 by the Commission of the European Communi-                  (2) OJ L 291, 10.10.1989, p. 55.
ties, represented by Gregorio Valero Jordana, of the Com-
missions Legal Service, acting as Agent, with an address for
service at the office of Luis Escobar Guerrero, also of the Legal
Service, Wagner Centre, Luxembourg.


title: Case C-19/12: Judgment of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Efir OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv (Value added tax — Directive 2006/112/EC — Articles 62, 63, 65, 73 and 80 — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons — Barter contract — VAT on construction services — Chargeable event — When chargeable — Whether both taxable transactions and exempt transactions are covered by the concept of a chargeable event — Payment on account of the entire consideration — Payment on account — Basis of assessment for a transaction in the event of consideration in the form of goods or services — Direct effect)

text:
               27.4.2013

               EN

               Official Journal of the European Union

               C 123/7

         Judgment of the Court (Eighth Chamber) of 7 March 2013 (request for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Efir OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv
   (Case C-19/12) (1)

   (Value added tax - Directive 2006/112/EC - Articles 62, 63, 65, 73 and 80 - Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons - Barter contract - VAT on construction services - Chargeable event - When chargeable - Whether both taxable transactions and exempt transactions are covered by the concept of a chargeable event - Payment on account of the entire consideration - Payment on account - Basis of assessment for a transaction in the event of consideration in the form of goods or services - Direct effect)
   2013/C 123/09
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Efir OOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ Plovdiv

      Re:

   Request for a preliminary ruling –Varhoven administrativen sad — Interpretation of Article 62(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Occurrence of the chargeable event — National legislation providing for the application of the concept of a chargeable event to both taxable transactions and exempt transactions — Establishment by natural persons of a building right in favour of a company in exchange for construction services by that company for those persons

      Operative part of the judgment

               1.

               Articles 63 and 65 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that, in circumstances such as those of the main proceedings, where building rights are established in favour of a company to erect a building, by way of consideration for construction services of certain real property which that company has undertaken to deliver on a turn-key basis to the persons who established those building rights, those provisions do not preclude the VAT on those construction services from becoming chargeable as from the moment when those building rights are established, that is to say, before those services are performed, provided that, at the time those rights are established, all the relevant information concerning that future supply of services is already known and, therefore, in particular, the services in question are precisely identified, and the value of those rights may be expressed in monetary terms, which it is for the national court to verify.
               In circumstances such as those of the main proceedings, where the transactions are not completed between parties having ties within the meaning of Article 80 of Directive 2006/112, which it is for the national court to verify, Articles 73 and 80 of that directive must be interpreted as precluding a national provision, such as that at issue in the main proceedings, under which, when the consideration for a transaction is made up entirely of goods or services, the taxable amount of the transaction is the open market value of the goods or services supplied.

               2.

               Articles 63, 65 and 73 of Directive 2006/112 have direct effect.

      (1)  OJ C 89, 24.3.2012.


title: Case F-92/12: Order of the Civil Service Tribunal (Second Chamber) of 28 January 2013 — Marcuccio v Commission (Civil service — Article 34(1) of the Rules of Procedure — Application lodged by fax within the time-limit for bringing proceedings signed by means of a stamp reproducing a lawyer’s signature or other means of reproduction — Action lodged out of time — Manifestly inadmissible)

text:
               9.3.2013

               EN

               Official Journal of the European Union

               C 71/28

         Order of the Civil Service Tribunal (Second Chamber) of 28 January 2013 — Marcuccio v Commission
   (Case F-92/12)
   (Civil service - Article 34(1) of the Rules of Procedure - Application lodged by fax within the time-limit for bringing proceedings signed by means of a stamp reproducing a lawyer’s signature or other means of reproduction - Action lodged out of time - Manifestly inadmissible)
   2013/C 71/47
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: European Commission

      Re:

   Application for annulment of the decision to withhold sums from the applicant’s invalidity allowance for the purpose of recovering the sum which the applicant was ordered to pay by way of legal costs by the Civil Service Tribunal.

      Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Marcuccio is ordered to bear his own costs.


title: Case C-397/08: Action brought on 15 September 2008 — Commission of the European Communities v Portuguese Republic

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/14

         Action brought on 15 September 2008 — Commission of the European Communities v Portuguese Republic
   (Case C-397/08)
   (2008/C 272/25)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: N. Yerrell and M. Telles Romão, acting as Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               declare that, by failing to adopt and publish the laws, regulations and administrative provisions necessary to comply with Directive 2003/59/EC (1) of the European Parliament and of the Council of 15 July 2003 on the initial qualification and periodic training of drivers of certain road vehicles for the carriage of goods or passengers, amending Council Regulation (EEC) No 3820/85 and Council Directive 91/439/EEC and repealing Council Directive 76/914/EEC and, in any event, by failing to notify the Commission thereof, the Portuguese Republic has failed to fulfil its obligations under that directive;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   The period prescribed for transposing the directive expired on 10 September 2006.

      (1)  OJ 2003 L 226, p. 4.


title: Case C-631/15: Order of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Oviedo — Spain) — Carlos Álvarez Santirso v Consejería de Educación, Cultura y Deporte del Principado de Asturias (References for a preliminary ruling — Article 99 of the Rules of Procedure of the Court of Justice — Directive 1999/70/EC — Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP — Clause 4 — Successive fixed-term employment contracts in the public sector — Non-tertiary education — National rules — Grant of remuneration supplement — Condition — Positive result obtained in evaluation process — Professors employed as interim civil servants — Not included — Principle of non-discrimination)

text:
               5.12.2016

               EN

               Official Journal of the European Union

               C 454/14

      Order of the Court (Tenth Chamber) of 21 September 2016 (request for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 1 de Oviedo — Spain) — Carlos Álvarez Santirso v Consejería de Educación, Cultura y Deporte del Principado de Asturias
      (Case C-631/15) (1)

      ((References for a preliminary ruling - Article 99 of the Rules of Procedure of the Court of Justice - Directive 1999/70/EC - Framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP - Clause 4 - Successive fixed-term employment contracts in the public sector - Non-tertiary education - National rules - Grant of remuneration supplement - Condition - Positive result obtained in evaluation process - Professors employed as interim civil servants - Not included - Principle of non-discrimination))
      (2016/C 454/26)
      Language of the case: Spanish

         Referring court

      Juzgado de lo Contencioso-Administrativo No 1 de Oviedo

         Parties to the main proceedings

         Applicant: Carlos Álvarez Santirso

         Defendant: Consejería de Educación, Cultura y Deporte del Principado de Asturias

         Operative part of the order

      Clause 4(1) of the of the Framework agreement on fixed-term work, concluded on 18 March 1999, which is set out in the Annex to Council Directive 1999/70/EC of 28 June 1999 concerning the framework agreement on fixed-term work concluded by ETUC, UNICE and CEEP must be interpreted as precluding national rules, such as those at issue in the main proceedings, which reserve participation in teaching evaluation plans and, in the case of a positive result, the ensuing financial incentives, exclusively for teachers employed under permanent employment relationships as established career civil servants, thereby excluding persons employed as interim civil servants under fixed-term employment relationships.

         (1)  OJ C 68, 22.2.2016.


title: Case T-350/99: Action brought on 8 December 1999 by Bogoljub Karic, Dragomir Karic, Milenka Karic, Sreten Karic and Zoran Karic against the Council of the European Union

text:
C 79/36               EN                      Official Journal of the European Communities                                      18.3.2000
Action brought on 8 December 1999 by Bogoljub Karic,                     The applicant claims that the Court should:
Dragomir Karic, Milenka Karic, Sreten Karic and Zoran
     Karic against the Council of the European Union                     — annul the Commission’s decision of 9 February 1999
                                                                             considering the applicant’s absences from 8 to 17 Decemb-
                        (Case T-350/99)                                      er 1998 and of 25 January 1999 to have been unauthorised
                                                                             and deducting them from annual leave entitlement;
                         (2000/C 79/76)                                  — order the defendant to pay the costs.
                  (Language of the case: English)                        Pleas in law and main arguments
An action against the Council of the European Union was                  The applicant contests the legality of the decision to consider
brought before the Court of First Instance of the European               her absences because of sickness to have been unauthorised
Communities on 8 December 1999 by Bogoljub Karic and                     and to deduct them from annual leave entitlement. The
four others, represented by Nicolas Rollason and Tim Eicke,              applicant takes the view that by not enabling her to challenge
with an address for service in Luxembourg at the Chambers of             effectively the institution’s medical officer’s refusal to accept
Elvinger, Hoss & Prussen, 2 place Winston Churchill.                     the medical certificate produced to justify her absences because
                                                                         of sickness, the Commission infringed Article 59(1) and (3) of
The applicants claim that the Court should:                              the Staff Regulations, as well as her rights of defence and the
                                                                         obligation to state reasons. She maintains, furthermore, that
— declare void the Council Decision 1999/612/CFSP and/or                 the medical officer committed a manifest error of assessment
    the decision apparently adopted on 6 December 1999, not              by refusing to acknowledge the seriousness of her medical
    yet published in the Official Journal but press-released on          complaint.
    the Council’s website on 6 December 1999;
— order the Council to pay the applicants’ costs.
Pleas in law and main arguments
The pleas in law and main arguments raised by the applicants             Action brought on 10 December 1999 by NV Calberson
are similar to those put forward in Case T-349/99. Moreover,             Belgium against the Commission of the European Com-
the applicants submit that the contested decisions prevent                                            munities
them from exercising their right to family life as protected by
Article 8(1) ECHR and Article 6(2) EU.                                                            (Case T-353/99)
                                                                                (2000/C 79/78)
                                                                                (Language of the case: Dutch)
Action brought on 9 December 1999 by M against Com-                      An action against the Commission of the European Communi-
            mission of the European Communities                          ties was brought before the Court of First Instance of the
                                                                         European Communities on 10 December 1999 by NV Calber-
                                                                         son Belgium, having its registered office in Bornem (Belgium),
                        (Case T-352/99)                                  represented by L. Gheysens, of the Law Firm Gheysens &
                                                                         Partners, Wevelgem (Belgium), with an address for service in
                         (2000/C 79/77)                                  Luxembourg at the Chambers of R. Reding, 2 Rue J.-P.
                                                                         Brasseur.
                   (Language of the case: French)                        The applicant claims that the Court should:
An action against the Commission of the European Communi-                — annul Commission Decision C(1999) 2140 final of 19 July
ties was brought before the Court of First Instance of the                   1999 (file Rec 8/98 — client: Lema) and Commission
European Communities on 9 December 1999 by M, represent-                     Decision C(1999) 2143 final of 19 July 1999 (file Rec
ed by Jean-Noël Louis, Greta-Françoise Parmentier and                        9/98 — client: Consumer Electronic Service);
Véronique Peere, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Société de Gestion               — declare that [the import duties in issue] should not be the
Fiduciaire, 2-4 rue Beck.                                                    subject of post-clearance recovery from the applicant;


title: Case T-475/10: Order of the General Court of 10 May 2012 — Portugal v Commission

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/20

         Order of the General Court of 10 May 2012 — Portugal v Commission
   (Case T-475/10) (1)

   2012/C 184/39
   Language of the case: Portuguese
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 328, 4.12.2010.


title: Case C-90/16: Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 15 February 2016 — The English Bridge Union Limited v Commissioners for Her Majesty's Revenue & Customs

text:
               25.4.2016

               EN

               Official Journal of the European Union

               C 145/23

         Reference for a preliminary ruling from Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 15 February 2016 — The English Bridge Union Limited v Commissioners for Her Majesty's Revenue & Customs
   (Case C-90/16)
   (2016/C 145/29)
   Language of the case: English

      Referring court

   Upper Tribunal (Tax and Chancery Chamber)

      Parties to the main proceedings

      Applicant: The English Bridge Union Limited

      Defendant: Commissioners for Her Majesty’s Revenue & Customs

      Questions referred

               1.

               What are the essential characteristics which an activity must exhibit in order for it to be a ‘sport’ within the meaning of article 132(1)(m) of Council Directive 2006/112/EC (1) of 28th November 2006 (‘the Principal VAT Directive’)? In particular must an activity have a significant (or not insignificant) physical element which is material to its outcome or is it sufficient that it has a significant mental element which is material to its outcome?

               2.

               Is duplicate contract bridge a ‘sport’ within article 132(1)(m) of the Principal VAT Directive?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax

      OJ L 347, p. 1


title: Order of the Court of First Instance of 6 May 2004 in Case T-34/03: André Hecq v Commission of the European Communities (Staff cases — Act adversely affecting an official — Capacity to bring proceedings — Official acting personally and not on behalf of a trade union organisation — Inadmissibility)

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/23

      ORDER OF THE COURT OF FIRST INSTANCE

   of 6 May 2004
   in Case T-34/03: André Hecq v Commission of the European Communities (1)

   (Staff cases - Act adversely affecting an official - Capacity to bring proceedings - Official acting personally and not on behalf of a trade union organisation - Inadmissibility)
   (2004/C 239/51)
   Language of the case: French
   In Case T-34/03: André Hecq, a former official of the Commission of the European Communities, residing in Mondercange (Luxembourg), represented by L. Vogel, lawyer, against the Commission of the European Communities (Agents: J. Currall and V. Joris) — application for annulment of the Commission's decision of 4 October 2002 rejecting the complaint brought by Mr Hecq, acting both personally and in his capacity as President of the Syndicat des Fonctionnaires Internationaux et Européens, against various decisions relating to the representation of staff and the resources made available by the Commission, and for compensation for the damage allegedly suffered as a result of those decisions — the Court of First Instance (Fifth Chamber), composed of P. Lindh, President, R.Garcia-Valdecasas and J.D. Cooke, Judges; H. Jung, Registrar, has made an order on 6 May 2004, in which it:

               1.

               Dismisses the action as inadmissible;

               2.

               Orders the applicant to bear his own costs and pay those of the Commission.

      (1)  OJ C 101 of 26.04.2003.


title: Case T-25/05: Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/39

         Action brought on 21 January 2005 by KM Europa Metal AG, Tréfimétaux S.A. and Europa Metalli S.p.A. against the Commission of the European Communities
   (Case T-25/05)
   (2005/C 82/70)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 January 2005 by KM Europa Metal AG, established in Osnabruck (Germany), Tréfimétaux S.A., established in Courbevoie Cedex (France) and Europa Metalli S.p.A., established in Florence (Italy), represented by R. Elderkin, Barrister and M. Siragusa, A. Winckler, G. Cesare Rizza, T. Graf and M. Piergiovanni, lawyers.
   The applicants claim that the Court should:

               —

               to reduce substantially KME's Fine;

               —

               to order the Commission to pay the applicants' legal fees and expenses;

               —

               to take any other measures that this Honourable Court considers appropriate.

         Pleas in law and main arguments
   The applicants contest the fine imposed on them by the Commission Decision of 3 September 2004 relating to a proceeding pursuant to Article 81(1) EC in Case Comp/E-1/38-069 finding three separate infringements in the copper plumbing tube sector.
   By their first plea, the applicants submit that the Commission, in establishing the basic amount of their fines, failed to assess the actual market impact of the infringement, in contrast with the principles of proportionality and equal treatment. The impact of the cartel on customers and final consumers was very limited due to the frequent deviation and continued competition by producers, the absence of any monitoring and sanctioning mechanism, and the strong purchasing power of customers.
   By their second plea, the applicants claim that the Commission's assessment of the gravity of the infringement was vitiated by an overstatement of the infringement's economic impact. According to the applicants, the price of the raw material, i.e. copper, should not have been included in the calculation of the relevant market value because the infringement concerned only the added value. The applicants claim also that tube producers not only do not have any degree of control over the cost of the metal, but also are bound to source copper in the strict observance of the purchasing instructions that they receive from their customers.
   By their third plea, the applicants submit that the Commission grossly overstated the importance of the applicants in the copper plumbing tube market, compared to other players, and thus set the starting amount of the fine too high. In particular, the Commission ignored that, during a significant period of time, the applicants acted as competitors in the market.
   By their fourth plea, the applicants submit that the Commission's calculation of the duration element of the starting amount was contrary to the principles of proportionality and equal treatment. In particular, the Commission, when determining the increase of the fine on account of duration, should not have taken into account the year during which the European meetings were interrupted and the years during which the arrangements were particularly loose and ineffective.
   By their fifth plea, the applicants contend that the Commission failed to take into account several attenuating circumstances, namely the non-implementation of the arrangements and the crisis in the copper plumbing tube industry. Moreover, the applicants claim that the decision violated the principle of equal treatment in that it unlawfully discriminated between KME and Outokumpu by applying to the latter company a greater fine reduction than that granted to KME on account of cooperation outside the 1996 Leniency Notice.
   By their sixth plea, the applicants submit that the reduction they were granted under the 1996 Leniency Notice was inadequate. The Commission based its conclusion in this matter on erroneous factual premises, departed from its own practice and the case law, and violated the principle of equal treatment.
   By their seventh plea, the applicants submit that the Commission should have taken into account the applicants' precarious financial situation and resulting inability to pay a high fine, in particular as a result of the onerous penalty already imposed on it in the parallel Industrial Tubes case (1).

      (1)  Case COMP/E-1/38.240 Industrial Tubes


title: Case C-503/16: Request for a preliminary ruling from the Tribunal da Relação de Évora (Portugal) lodged on 23 September 2016 — Luis Isidro Delgado Mendes v Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA

text:
               5.12.2016

               EN

               Official Journal of the European Union

               C 454/19

      Request for a preliminary ruling from the Tribunal da Relação de Évora (Portugal) lodged on 23 September 2016 — Luis Isidro Delgado Mendes v Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA
      (Case C-503/16)
      (2016/C 454/33)
      Language of the case: Portuguese

         Referring court

      Tribunal da Relação de Évora

         Parties to the main proceedings

         Applicant: Luis Isidro Delgado Mendes

         Defendant: Crédito Agrícola Seguros — Companhia de Seguros de Ramos Reais, SA

         Question referred

      In the case of a road traffic accident resulting in personal injury and damage to property of a pedestrian who was intentionally run over by a motor vehicle of which he is the owner, which was being driven by the person who stole the car, does EU law, specifically Articles 12(3) and 13(1) of Directive 2009/103/EC (1) of the European Parliament and of the Council [of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability] preclude the exclusion by national law of any form of compensation for the pedestrian in question as a result of the fact that he is the owner of the vehicle and the insurance policyholder thereof?

         (1)  Directive 2009/103/EC of the European Parliament and of the Council of 16 September 2009 relating to insurance against civil liability in respect of the use of motor vehicles, and the enforcement of the obligation to insure against such liability (OJ 2009 L 263, p. 11).


title: Case C-609/13 P: Appeal brought on 25 November 2013 by Duravit AG and Others against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Case T-364/10 Duravit AG and Others v European Commission

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/4

      Appeal brought on 25 November 2013 by Duravit AG and Others against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Case T-364/10 Duravit AG and Others v European Commission
      (Case C-609/13 P)
      (2014/C 71/07)
      Language of the case: German

         Parties

         Appellants: Duravit AG, Duravit SA, Duravit BeLux SPRL/BVBA (represented by: Dr. U. Soltész, LL.M. and C. von Köckritz, Rechtsanwälte)

         Other parties to the proceedings: European Commission, Council of the European Union

         Form of order sought

      The appellants claim that the Court should:

                  1.

                  Set aside the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Case T-364/10 in so far as that judgment dismissed the appellants’ action;

                  2.

                  Annul in their entirety, in accordance with the fourth paragraph of Article 263 TFEU, Articles 1(1), 2 and 3 of the Decision of the European Commission of 23 June 2010, C(2010) 4185 final, in Case COMP/39.092 — Bathroom fittings and fixtures, in so far as it concerns the appellants;

                  3.

                  In the alternative (in relation to head of claim No 2), annul or substantially reduce the fines imposed on the appellants in the abovementioned Decision;

                  4.

                  In the further alternative (in relation to heads of claim Nos 2 and 3), refer the case back to the General Court for a new decision which is consistent with the legal assessment in the Court’s judgment;

                  5.

                  In any event, order the Commission to pay the costs they have incurred in respect of the proceedings before the General Court and the Court.

         Grounds of appeal and main arguments

      The appellants put forward six grounds of appeal in total.
      First, the General Court infringed Article 31 of Regulation No 1/2003, the presumption of innocence and the right to a fair hearing (Articles 47 and 48(1) in conjunction with Article 52(3) of the Charter of Fundamental Rights of the European Union and Article 6(1) and (2) ECHR) because it refused to carry out a full review of the contested decision, which had been expressly requested, assumed that the Commission’s findings of facts and law were correct and did not sufficiently exercise its own discretion in fixing the amount of the fine.
      Secondly, the General Court infringed Article 263 TFEU, the appellants’ right to an effective remedy (the first paragraph of Article 47 of the Charter of Fundamental Rights of the European Union) and the principle of equality of arms by carrying out its judicial review inadequately and exceeding the limits of that review to the detriment of the appellants.
      Thirdly, the General Court, in a number of respects, obviously and in a manner which was relevant to the decision, distorted the clear sense of the evidence in the file and consequently erred in law and infringed the recognised rules of evidence.
      Fourthly, the General Court made procedural errors and infringed Article 48(2) of the Rules of Procedure, the appellants’ rights of the defence, their right to a fair hearing and the principle of equality of arms by using, to the detriment of the appellants, evidence which was unusable and submitted out of time and belated arguments of the Commission and by erring in law in rejecting all of the appellants’ requests for measures of inquiry with an insufficient statement of reasons.
      Fifthly, the General Court misapplied Article 101 TFEU and infringed its obligation to state reasons by holding that the Commission was right in accusing the appellants of participating in a single, cross-product infringement in respect of taps and fittings, shower enclosures and ceramic sanitary ware.
      Sixthly, the General Court misapplied Article 101 TFEU by applying an incorrect criterion in assessing an exchange of information under Article 101(1) TFEU, assuming that the appellants were under an obligation to distance themselves from the discussions of non-competing undertakings and regarding alleged ‘attempted agreements’ on special occasions in cross-product associations as a completed infringement of Article 101 TFEU.


28.9.2002              EN                  Official Journal of the European Communities                                  C 233/21
        Removal from the register of Case C-76/02 (1)                         Removal from the register of Case C-121/02 ( 1)
                        (2002/C 233/38)                                                       (2002/C 233/39)
By order of 2 July 2002 the President of the Court of Justice of
the European Communities ordered the removal from the                 By order of 10 July 2002 the President of the Court of Justice
register of Case C-76/02: Commission of the European Com-             of the European Communities ordered the removal from the
munities v Republic of Austria.                                       register of Case C-121/02: Commission of the European
                                                                      Communities v Grand Duchy of Luxembourg.
( 1) OJ C 109 of 4.5.2002.
                                                                      (1 ) OJ C 131 of 1.6.2002.


title: Case C-436/03: Judgment of the Court (Grand Chamber) of  2 May 2006  — European Parliament v Council of the European Union (Action for annulment — Regulation (EC) No 1435/2003 — European Cooperative Society (SCE) — Choice of legal basis — Article 95 EC — Article 308 EC)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/4

         Judgment of the Court (Grand Chamber) of 2 May 2006 — European Parliament v Council of the European Union
   (Case C-436/03) (1)

   (Action for annulment - Regulation (EC) No 1435/2003 - European Cooperative Society (SCE) - Choice of legal basis - Article 95 EC - Article 308 EC)
   (2006/C 143/08)
   Language of the case: French
   Parties

      Applicant: European Parliament (represented by: R. Passos, E. Waldherr and J. Rufas Quintana, Agents)

      Defendant: Council of the European Union (represented by: J.-P. Jacqué and M.C. Giorgi Fort, Agents)

      Intervener: Commission of the European Communities (represented by: C. Schmidt and J.-F. Pasquier, Agents); Kingdom of Spain (represented by: E. Braquehais Conesa, Agent); United Kingdom of Great Britain and Northern Ireland (represented by: R. Caudwell, Agent, assisted by Lord Goldsmith and N. Paines)
   Re:
   Annulment of Council Regulation (EC) No 1435/2003 of 22 July 2003 on the Statute for a European Cooperative Society (SCE) (OJ 2003 L 207, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the European Parliament to pay the costs;

               3.

               Orders the Kingdom of Spain, the United Kingdom of Great Britain and Northern Ireland and the Commission of the European Communities to bear their own costs.

      (1)  OJ C 289, 29.11.2003.


title: Case C-639/15 P: Appeal brought on 1 December 2015 by Gat Microencapsulation GmbH (anciennement Gat Microencapsulation AG) against the judgment of the General Court (Sixth Chamber) delivered on 30 September 2015 in Case T-720/13: Gat Microencapsulation v EUIPO

text:
               29.8.2016

               EN

               Official Journal of the European Union

               C 314/8

         Appeal brought on 1 December 2015 by Gat Microencapsulation GmbH (anciennement Gat Microencapsulation AG) against the judgment of the General Court (Sixth Chamber) delivered on 30 September 2015 in Case T-720/13: Gat Microencapsulation v EUIPO
   (Case C-639/15 P)
   (2016/C 314/12)
   Language of the case: English

      Parties

      Appellant: Gat Microencapsulation GmbH (anciennement Gat Microencapsulation AG) (represented by: S. Soler Lerma, Agent, M. C. March Cabrelles, abogada)

      Other party to the proceedings: European Union Intellectual Property Office (EUIPO)
   By order of 26 May 2016 the Court of Justice (Eight Chamber) held that the appeal was inadmissible.


title: Case T-215/14: Action brought on 8 April 2014  — Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo v Commission

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/48

         Action brought on 8 April 2014 — Gmina Miasto Gdynia and Port Lotniczy Gdynia Kosakowo v Commission
   (Case T-215/14)
   2014/C 175/67
   Language of the case: Polish

      Parties

      Applicants: Gmina Miasto Gdynia (Municipality of Gdynia) (Gdynia, Poland) and Port Lotniczy Gdynia Kosakowo sp. z o.o. (Gdynia) (represented by: T. Koncewicz, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the General Court should:

               —

               Annul the decision published in Case SA. 35 388 by the European Commission on 11 February 2014 ordering Poland to recover from the Gdynia-Kosakowo Airport improperly paid State aid;

               —

               Order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   In support of their action the applicants put forward the following pleas in law.

               1.

               The first plea in law:

                           —

                           Arbitrariness and flagrant error in the findings of fact taken as the basis on which the contested decision was adopted, a consequent failure on the part of the Commission to remain within the limits of its discretion, and manifest errors in the appraisal of the evidence.

               2.

               The second plea in law:

                           —

                           Failure on the part of the Commission to take account of factors and circumstances relevant to the legal appraisal of the investment in the Gdynia-Kosakowo Airport.

               3.

               The third plea in law:

                           —

                           Failure on the part of the Commission to remain within the limits of its discretion within the meaning of the case-law emphasising the obligation of an institution which enjoys discretion to explain why specific evidence and facts are taken into consideration, whereas others are rejected.

               4.

               The fourth plea in law:

                           —

                           Breach of Article 107(1) TFEU in conjunction with a general principle of European law — the principle of legal certainty and loyalty of the institution towards persons subject to the law — by reason of defective application and interpretation.

               5.

               The fifth plea in law:

                           —

                           Infringement comprising an erroneous legal classification of the facts and evidence, resulting in a breach by the contested decision of Article 107(1) TFEU by reason of the finding that, in this case, the conditions for recognition of the actions of the applicants as satisfying the private investor test were not met and it was not established that the investment project would have been carried out by a private investor, with the consequence that the Gdynia-Kosakowo investment was dependent on unauthorised public aid.


title: Case T-460/17: Action brought on 20 July 2017 — Bopp v EUIPO (Representation of an equiangular octagon)

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/38

         Action brought on 20 July 2017 — Bopp v EUIPO (Representation of an equiangular octagon)
   (Case T-460/17)
   (2017/C 300/47)
   Language of the case: German

      Parties

      Applicant: Carsten Bopp (Glashütten, Germany) (represented by: F. Pröckl, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: Sign (Representation of an equiangular octagon) — Application for registration No 11 005 196

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 8 May 2017 in Case R 1954/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 75 of Regulation No 207/2009.


title: Case C-485/13: Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción n °2 de Marchena (Spain) lodged on 10 September 2013 — Caixabank SA v José Labella Crespo and Others

text:
               30.11.2013

               EN

               Official Journal of the European Union

               C 352/5

         Request for a preliminary ruling from the Juzgado de Primera Instancia e Instrucción no 2 de Marchena (Spain) lodged on 10 September 2013 — Caixabank SA v José Labella Crespo and Others
   (Case C-485/13)
   2013/C 352/09
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia e Instrucción no 2 de Marchena

      Parties to the main proceedings

      Applicant: Caixabank SA

      Defendants: José Labella Crespo, Rosario Márquez Rodríguez, Rafael Gallardo Salvat, Manuela Márquez Rodríguez

      Questions referred

               1.

               Under Council Directive 93/13/EEC (1) of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, and in order to ensure the protection of consumers and users in accordance with the principles of equivalence and effectiveness, must a national court, when it finds there to be an unfair default-interest clause in mortgage loans, declare the clause void and not binding or, on the contrary, must it moderate the interest clause, referring the matter back to the party seeking enforcement or lender for recalculation of the interest?

               2.

               Is the Second Transitional Provision of Law 1/2013 of 14 May 2013 nothing more than a clear limitation on the protection of consumer interests, by implicitly imposing upon the court the obligation to moderate a default-interest clause which is tainted by unfairness, recalculating the stipulated interest and maintaining in force a stipulation which was unfair, instead of declaring the clause to be void and not binding upon the consumer?

               3.

               Does the Second Transitional Provision of Law 1/2013 of 14 May 2013 contravene Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts, and in particular Article 6(1) thereof, by preventing application of the principles of equivalence and effectiveness in relation to consumer protection and avoiding application of the penalty of nullity and lack of binding force in respect of default-interest clauses tainted by unfairness and stipulated in mortgage loans entered into prior to the entry into force of Law 1/2013 of 14 May 2013?

      (1)  OJ 1993 L 95, p. 29.


title: Case C-59/09 P: Appeal brought on 9 December 2008 by Hasbro, Inc. against the decision of the Court of First Instance (Sixth Chamber) contained in a letter of 22 September 2008 in Case T-472/07: Enercon v OHIM

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/24

         Appeal brought on 9 December 2008 by Hasbro, Inc. against the decision of the Court of First Instance (Sixth Chamber) contained in a letter of 22 September 2008 in Case T-472/07: Enercon v OHIM
   (Case C-59/09 P)
   2009/C 267/45
   Language of the case: English

      Parties

      Appellant: Hasbro, Inc. (represented by: M. Edenborough, Barrister)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   By order of 10 July 2009 the Court of Justice (Fifth Chamber) held that the appeal was inadmissible.


title: Case T-710/14: Judgment of the General Court of 15 September 2016 — Herbert Smith Freehills v Council (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to discussions preceding the adoption of the Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of legal advice — Rights of the defence — Overriding public interest)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/39

         Judgment of the General Court of 15 September 2016 — Herbert Smith Freehills v Council
   (Case T-710/14) (1)

   ((Access to documents - Regulation (EC) No 1049/2001 - Documents relating to discussions preceding the adoption of the Directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products - Refusal to grant access - Exception relating to the protection of legal advice - Rights of the defence - Overriding public interest))
   (2016/C 402/43)
   Language of the case: English

      Parties

      Applicant: Herbert Smith Freehills LLP (London, United Kingdom) (represented by: P. Wytinck, lawyer)

      Defendant: Council of the European Union (represented by: E. Rebasti, M. Veiga and J. Herrmann, acting as Agents)

      Intervener in support of the defendant: European Commission (represented by: P. Van Nuffel, J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents)

      Re:

   Application based on Article 263 TFEU and seeking annulment of Decision 18/c/01/14 of the Council of 23 July 2014, refusing access to certain documents relating to the adoption of Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC (OJ 2014 L 127, p. 1).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Herbert Smith Freehills LLP to bear its own costs and to pay those incurred by the Council of the European Union;

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 409, 17.11.2014.


title: Case C-302/16: Request for a preliminary ruling from the Rechtbank Noord-Nederland, sitting in Groningen (Netherlands), lodged on 27 May 2016 — Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij NV

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/9

         Request for a preliminary ruling from the Rechtbank Noord-Nederland, sitting in Groningen (Netherlands), lodged on 27 May 2016 — Bas Jacob Adriaan Krijgsman v Surinaamse Luchtvaart Maatschappij NV
   (Case C-302/16)
   (2016/C 326/18)
   Language of the case: Dutch

      Referring court

   Rechtbank Noord-Nederland, sitting in Groningen

      Parties to the main proceedings

      Applicant: Bas Jacob Adriaan Krijgsman

      Defendant: Surinaamse Luchtvaart Maatschappij NV

      Question referred

   What (procedural and substantive) requirements must be imposed on the performance of the obligation to inform referred to in Article 5(1)(c) of Regulation No 261/2004 (1) in the case where the contract for carriage has been entered into via a travel agent or the booking has been made via a website?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (OJ 2004 L 46, p. 1).


title: Case C-146/11: Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Riigikohus — Estonia) — AS Pimix, in liquidation v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium (Accession of new Member States — Setting the charge on surplus stocks of agricultural products — Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the OJ in the language of the Member State in question)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/12

         Judgment of the Court (Second Chamber) of 12 July 2012 (reference for a preliminary ruling from the Riigikohus — Estonia) — AS Pimix, in liquidation v Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium
   (Case C-146/11) (1)

   (Accession of new Member States - Setting the charge on surplus stocks of agricultural products - Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the Official Journal of the European Union in the language of the Member State in question)
   2012/C 287/19
   Language of the case: Estonian

      Referring court

   Riigikohus

      Parties to the main proceedings

      Applicant: AS Pimix, in liquidation

      Defendants: Maksu- ja Tolliameti Lõuna maksu- ja tollikeskus, Põllumajandusministeerium

      Re:

   Reference for a preliminary ruling — Riigikohus — Interpretation of Articles 288(2) TFEU, 297(1) TFEU, Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3) and the judgments of the Court of Justice in Cases C-161/06, C-560/07 and C-140/08 — Accession of new Member States — Setting the charge on surplus stocks of agricultural products — Reference, in a provision of national law, to a provision of a European Union regulation not duly published in the Official Journal of the European Union in the language of the Member State in question on the date prescribed for determination of the surplus stock — Whether regulation implemented within the meaning of the Court’s case-law

      Operative part of the judgment

   Article 58 of the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded must be interpreted as precluding, in Estonia, the application to individuals of provisions of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia, which, as at 1 May 2004, had neither been published in Estonian in the Official Journal of the European Union nor reproduced in the national law of that Member State, even though those individuals could have learned of those provisions by other means.

      (1)  OJ C 160, 25.5.2011.


C 79/42                EN                      Official Journal of the European Communities                                   18.3.2000
Pleas in law and main arguments                                           Removal from the register of Case T-317/97 to T-508/97 (1)
The applicant, who has been found guilty of a criminal offence                                    (2000/C 79/88)
by the courts, contests the disciplinary measure of removal
from post ordered against him or her by the appointing
authority.                                                                                (Language of the case: Portuguese)
In support of his or her arguments, the applicant claims that:            By order of 14 December 1999, the President of the Third
                                                                          Chamber of the Court of First Instance of the European
— the general principles applicable to disciplinary procedures            Communities has ordered the removal from the register of
    and, specifically, to the rights of the defence were infringed.       Case T-317/97 to T-508/97: David Manuel Abreu and Others
    The applicant takes the view in his respect that the decision         v Council of the European Union and Commission of the
    in question emanates specifically from the Director General           European Communities.
    for Personnel and the Administration who, as such, had
    initiated the disciplinary procedure and drawn up the
    report for the Disciplinary Board, despite forming part of            (1) OJ C 166 of 30.5.1998.
    the Disciplinary Committee himself. It is contrary to the
    abovementioned principles that a single body should
    combine the duties of a judge, set proceedings in motion
    and carry out the inquiry preceding the hearing. Moreover,
    throughout the disciplinary proceedings, the applicant’s
    request that they be made public was systematically
    refused.
                                                                                Removal from the register of Case T-125/98 (1)
— the decision ordering the disciplinary measure was arbi-
    trary in nature or, at least contained a manifest error of                                    (2000/C 79/89)
    assessment inasmuch as, since it considered the conduct of
    which the applicant stood accused to have been proved,
    the Disciplinary Board, and subsequently the appointing                                  (Language of the case: French)
    authority, restricted themselves to referring to the judg-
    ment made by the Belgian criminal courts, whereas it is for
    the disciplinary authorities to verify for themselves whether         By order of 7 December 1999, the President of the Fifth
    the conduct with which the applicant is charged is proven.            Chamber of the Court of First Instance of the European
                                                                          Communities has ordered the removal from the register of
— the Disciplinary Board was not properly constituted since               Case T-125/98: Luc Veron v Commission of the European
    some of the members called upon to participate in the                 Communities.
    appointing authority’s opinion had not been able to take
    an active part in all the debates.
                                                                          (1) OJ C 312 of 10.10.1998.
        Removal from the register of Case T-96/96 (1)
                                                                                Removal from the register of Case T-189/98 (1)
                          (2000/C 79/87)
                                                                                (2000/C 79/90)
                  (Language of the case: Italian)
                                                                                (Language of the case: Italian)
By order of 31 January 2000, the President of the Fifth
Chamber of the Court of First Instance of the European                    By order of 14 December 1999, the President of the Second
Communities has ordered the removal from the register of                  Chamber of the Court of First Instance of the European
Case T-96/96: Telecom Italia SpA (anc. Società Finanziaria                Communities has ordered the removal from the register of
Telefonica per Azioni) v Commission of the European Com-                  Case T-189/98: Commune de Sassuolo v Commission of the
munities.                                                                 European Communities.
(1) OJ C 233 of 10.8.1996.                                                (1) OJ C 20 of 23.1.1999.


title: Case C-476/11: Judgment of the Court (Second Chamber) of 26 September 2013 (request for a preliminary ruling from the Vestre Landsret — Denmark) — HK Danmark, acting on behalf of Glennie Kristensen v Experian A/S (Principle of non-discrimination on grounds of age — Charter of Fundamental Rights of the European Union — Article 21(1) — Directive 2000/78/EC — Article 6(1) and (2) — Occupational pension scheme — Increases in the amount of contributions on the basis of age)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/12

         Judgment of the Court (Second Chamber) of 26 September 2013 (request for a preliminary ruling from the Vestre Landsret — Denmark) — HK Danmark, acting on behalf of Glennie Kristensen v Experian A/S
   (Case C-476/11) (1)

   (Principle of non-discrimination on grounds of age - Charter of Fundamental Rights of the European Union - Article 21(1) - Directive 2000/78/EC - Article 6(1) and (2) - Occupational pension scheme - Increases in the amount of contributions on the basis of age)
   2013/C 344/18
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: HK Danmark, acting on behalf of Glennie Kristensen

      Defendant: Experian A/S

      Intervener: Beskæftigelsesministeriet

      Re:

   Request for a preliminary ruling — Vestre Landsret — Interpretation of Article 6(2) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Justification for differences of treatment on grounds of age — Fixing, for occupational social security schemes, of ages for admission or entitlement to retirement or invalidity benefits — General exception for occupational social security schemes provided that there is no discrimination on grounds of sex, or exception solely for affiliation to social security schemes — National legal situation in which an employer can pay, as part of pay, pension contributions which increase with the age of the employee

      Operative part of the judgment

   The principle of non-discrimination on grounds of age, enshrined in Article 21 of the Charter of Fundamental Rights of the European Union and given specific expression by Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, and, in particular, Articles 2 and 6(1) of that directive, must be interpreted as not precluding an occupational pension scheme under which an employer pays, as part of pay, pension contributions which increase with age, provided that the difference in treatment on grounds of age that arises therefrom is appropriate and necessary to achieve a legitimate aim, which it is for the national court to establish.

      (1)  OJ C 340, 19.11.2011.


title: Case C-138/12: Judgment of the Court (Fifth Chamber) of 11 April 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Rusedespred OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Article 203 — Principle of fiscal neutrality — Refund to the supplier of tax paid where the recipient under an exempt transaction is refused a right of deduction)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/13

         Judgment of the Court (Fifth Chamber) of 11 April 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Rusedespred OOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-138/12) (1)

   (Taxation - VAT - Directive 2006/112/EC - Article 203 - Principle of fiscal neutrality - Refund to the supplier of tax paid where the recipient under an exempt transaction is refused a right of deduction)
   2013/C 156/20
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Varna

      Parties to the main proceedings

      Applicant: Rusedespred OOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Re:

   Request for a preliminary ruling — Administrativen sad — Varna — Interpretation of Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Principles of fiscal neutrality, effectiveness and equal treatment — Right to deduct input tax — Right of a supplier of goods to claim a refund of tax unduly paid where the right of the recipient of the goods to deduct the tax has been refused because the supply was exempt from tax under national law

      Operative part of the judgment

               1.

               The principle of the neutrality of value added tax, as given specific definition by the case-law relating to Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, must be interpreted as precluding a tax authority from refusing, on the basis of a provision of national law intended to transpose that article, the supplier of an exempt supply the refund of value added tax invoiced in error to a customer on the ground that the supplier had not corrected the erroneous invoice, in circumstances where that authority had definitively refused the customer the right to deduct that value added tax and such definitive refusal results in the system for correction provided for under national law no longer being applicable;

               2.

               The principle of the neutrality of value added tax, as given specific definition by the case-law relating to Article 203 of Directive 2006/112, may be relied on by a taxable person in order to contest a provision of national law that makes the refund of value added tax invoiced in error conditional on the correction of the incorrect invoice, in circumstances where the right to deduct that value added tax has definitively been refused and such definitive refusal results in the system for correction provided for under national law no longer being applicable.

      (1)  OJ C 151, 26.5.2012.


title: Case C-426/04 P: Order of the President of the First Chamber of the Court of 25 January 2006 — European Agency for Reconstruction (EAR) v Norbert Schmitt

text:
               14.10.2006

               EN

               Official Journal of the European Union

               C 249/8

         Order of the President of the First Chamber of the Court of 25 January 2006 — European Agency for Reconstruction (EAR) v Norbert Schmitt
   (Case C-426/04 P) (1)

   (2006/C 249/18)

      Language of the case: French

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 300, 04.12.2004.


title: Case C-358/12: Judgment of the Court (Tenth Chamber) of 10 July 2014 (request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Consorzio Stabile Libor Lavori Pubblici v Comune di Milano (Request for a preliminary ruling — Public procurement — Contracts falling below the threshold provided for in Directive 2004/18/EC — Articles 49 TFEU and 56 TFEU — Principle of proportionality — Conditions for exclusion from a tender procedure — Criteria for qualitative selection relating to the personal situation of the tenderer — Obligations relating to the payment of social security contributions — Definition of serious infringement — Difference between the sums owed and those paid which exceeds EUR 100 and is greater than 5 % of the sums owed)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/4

         Judgment of the Court (Tenth Chamber) of 10 July 2014 (request for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia — Italy) — Consorzio Stabile Libor Lavori Pubblici v Comune di Milano
   (Case C-358/12) (1)

   ((Request for a preliminary ruling - Public procurement - Contracts falling below the threshold provided for in Directive 2004/18/EC - Articles 49 TFEU and 56 TFEU - Principle of proportionality - Conditions for exclusion from a tender procedure - Criteria for qualitative selection relating to the personal situation of the tenderer - Obligations relating to the payment of social security contributions - Definition of serious infringement - Difference between the sums owed and those paid which exceeds EUR 100 and is greater than 5 % of the sums owed))
   2014/C 315/05
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Consorzio Stabile Libor Lavori Pubblici

      Defendant: Comune di Milano

      Intervener: Pascolo Srl

      Operative part of the judgment

   Articles 49 TFEU and 56 TFEU and the principle of proportionality must be interpreted as not precluding national legislation which, with regard to public works contracts the value of which is below the threshold laid down in Article 7(c) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, as amended by Commission Regulation (EC) No 1177/2009 of 30 November 2009, requires the contracting authorities to exclude from the award procedure for such a contract a tenderer who has committed an infringement relating to social security contributions where the difference between the sums owed and those paid exceeds EUR 100 and is greater than 5 % of the sums owed.

      (1)  OJ C 311, 13.10.2012.


title: Case C-482/09: Reference for a preliminary ruling from Court of Appeal (England   Wales) (Civil Division) (United Kingdom) made on 30 November 2009 — Budějovický Budvar, národní podnik v Anheuser-Busch, Inc.

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/42

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 30 November 2009 — Budějovický Budvar, národní podnik v Anheuser-Busch, Inc.
   (Case C-482/09)
   2010/C 24/72
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicant: Budějovický Budvar, národní podnik

      Defendant: Anheuser-Busch, Inc.

      Questions referred

               1.

               What is meant by ‘acquiesced’ in Article 9(1) of Council Directive 89/104/EEC (1) and in particular:

                           (a)

                           is ‘acquiesced’ a community law concept or is it open to the national court to apply national rules as to acquiescence (including delay or long established honest concurrent use)

                           (b)

                           if ‘acquiesced’ is a community law concept can the proprietor of a trade mark be held to have acquiesced in a long and well- established honest use of an identical mark by another when he has long known of that use but has been unable to prevent it?

                           (c)

                           in any case, is it necessary that the proprietor of a trade mark should have his trade mark registered before he can begin to ‘acquiesce’ in the use by another of (i) an identical or (ii) a confusingly similar mark?

               2.

               When does the period of ‘five successive years’ commence and in particular, can it commence (and if so can it expire) before the proprietor of the earlier trade mark obtains actual registration of his mark; and if so what conditions are necessary to set time running?

               3.

               Does Art 4(1)(a) of Council Directive 89/104/EEC apply so as to enable the proprietor of an earlier mark to prevail even where there has been a long period of honest concurrent use of two identical trade marks for identical goods so that the guarantee of origin of the earlier mark does not mean the mark signifies the goods of the proprietor of the earlier and none other but instead signifies his goods or the goods of the other user?

      (1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks
   OJ L 40, p. 1