title: Case C-34/13: Judgment of the Court (Third Chamber) of 10 September 2014 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Monika Kušionová v SMART Capital a.s. (Request for a preliminary ruling — Directive 93/13/EEC — Unfair terms — Consumer credit agreement — Article 1(2) — Term reflecting a mandatory statutory provision — Scope of the directive — Articles 3(1), 4, 6(1) and 7(1) — Security for credit in the form of a charge on immovable property — Whether it is possible to enforce the charge by means of a sale by auction — Judicial review)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/7

         Judgment of the Court (Third Chamber) of 10 September 2014 (request for a preliminary ruling from the Krajský súd v Prešove — Slovakia) — Monika Kušionová v SMART Capital a.s.
   (Case C-34/13) (1)

   ((Request for a preliminary ruling - Directive 93/13/EEC - Unfair terms - Consumer credit agreement - Article 1(2) - Term reflecting a mandatory statutory provision - Scope of the directive - Articles 3(1), 4, 6(1) and 7(1) - Security for credit in the form of a charge on immovable property - Whether it is possible to enforce the charge by means of a sale by auction - Judicial review))
   2014/C 409/09
   Language of the case: Slovak

      Referring court

   Krajský súd v Prešove

      Parties to the main proceedings

      Applicant: Monika Kušionová

      Defendant: SMART Capital a.s.

      Operative part of the judgment

               1)

               Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which allows the recovery of a debt that is based on potentially unfair contractual terms by the extrajudicial enforcement of a charge on immovable property provided as security by the consumer, in so far as that legislation does not make it excessively difficult or impossible in practice to protect the rights conferred on consumers by that directive, which is a matter for the national court to determine.

               2)

               Article 1(2) of Directive 93/13 must be interpreted as meaning that a contractual term included in a contract concluded by a seller or supplier with a consumer falls outside the scope of that directive only if that contractual term reflects the content of a mandatory statutory or regulatory provision, which is a matter for the national court to determine.

      (1)  OJ C 141, 18.5.2013.


title: Case C-370/08: Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost (Common Customs Tariff — Tariff classification — Combined Nomenclature — Chapter 84, Note 5(B) — Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed — Headings 8471, 8473 and 8536)

text:
               3.7.2010

               EN

               Official Journal of the European Union

               C 179/6

         Judgment of the Court (Second Chamber) of 20 May 2010 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Data I/O GmbH v Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost
   (Case C-370/08) (1)

   (Common Customs Tariff - Tariff classification - Combined Nomenclature - Chapter 84, Note 5(B) - Adapter containing a memory-chip and designed to provide the electrical connection between an automatic programming machine and electrical components to be programmed - Headings 8471, 8473 and 8536)
   2010/C 179/08
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Data I/O GmbH

      Defendant: Hauptzollamt Hannover, formerly Bundesfinanzdirektion Südost

      Re:

   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of Note 5(B) to Chapter 84 of the Combined Nomenclature of the Common Customs Tariff in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 (OJ 2004 L 327, p. 1) — Electrical adapter ensuring the transmission of data from a programming machine to the electronic components to be programmed and containing a memory chip ensuring the storage of the programming process — Possibility of classification under heading 8471 of the Combined Nomenclature

      Operative part of the judgment

   An adapter, such as that at issue in the main proceedings, which performs the functions of the electrical connection between the programming machine and the components to be programmed and of the storage of the programming process, which can be retrieved later, fulfils the condition set out in Note 5(B)(c) to Chapter 84 of the Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1810/2004 of 7 September 2004 and must be classified under heading 8471 thereof as a ‘unit’ of an automatic data-processing machine, in so far as its main function is to carry out data-processing. Where that function is absent, such an adapter must be classified under heading 8473 of the Combined Nomenclature as a ‘part’ or ‘accessory’ of a machine, as the case may be, if it is either essential to the functioning of that machine or constitutes a part or device designed to adapt a machine for a particular operation or an element to perform a particular service relative to the main function of that machine, which it is for the referring court to determine. Where that adapter cannot be classified under either of the abovementioned headings, it must be considered to be an ‘electrical apparatus for making connections to or in electrical circuits’, and consequently to fall under heading 8536 of the Combined Nomenclature

      (1)  OJ C 285, 8.11.2008.


title: Case T-533/13: Action brought on 3 October 2013 — Lithuania v Commission

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/17

         Action brought on 3 October 2013 — Lithuania v Commission
   (Case T-533/13)
   2013/C 359/34
   Language of the case: Lithuanian

      Parties

      Applicant: Republic of Lithuania (represented by: D. Kriaučiūnas, R. Krasuckaitė and A. Karbauskas)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Article 1(4) of European Commission Implementing Decision C(2013) 4487 final of 19 July 2013 authorising the grant in Lithuania of transitional national aid for 2013 (‘the contested decision’);

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, relating to infringement of Article 39 TFEU, read in conjunction with the first subparagraph of Article 40(2) TFEU, and of the principle of non-discrimination
               In adopting Article 1(4) of the contested decision the Commission committed an infringement of Article 39 TFEU, read in conjunction with the first subparagraph of Article 40(2) TFEU, because it did not keep to the objectives of the common agricultural policy that are specified in the FEU Treaty (in particular Article 39(1)(b) TFEU) and to the criteria of the common agricultural policy, and it also infringed the principle of non-discrimination.

               2.

               Second plea in law, relating to infringement of Regulation No 73/2009
               The Commission, in adopting Article 1(4) of the contested decision without a legal basis, infringed Regulation No 73/2009, (1) having applied Article 10a(4) of that regulation incorrectly.

               3.

               Third plea in law, relating to an error of assessment by the Commission
               In adopting Article 1(4) of the contested decision the Commission committed an error of assessment, because it assessed the levels of the direct payments of the old and the new Member States erroneously in 2012 and it based the calculation of the transitional national aid granted on an erroneous assessment of that kind.

               4.

               Fourth plea in law, relating to infringement of the principle of good administration
               In adopting Article 1(4) of the contested decision the Commission infringed the principle of good administration, because it did not comply with the duty to take as a basis the new information provided by the Republic of Lithuania concerning the levels of direct payments in the Member States and did not assess the actual importance of direct payments for Lithuanian farms.

      (1)  Council Regulation (EC) No 73/2009 of 19 January 2009 establishing common rules for direct support schemes for farmers under the common agricultural policy and establishing certain support schemes for farmers, amending Regulations (EC) No 1290/2005, (EC) No 247/2006, (EC) No 378/2007 and repealing Regulation (EC) No 1782/2003 (OJ 2009 L 30, p. 16, corrigendum at OJ 2010 L 43, p. 7).


title: Case C-382/10: Judgment of the Court (Eighth Chamber) of 6 October 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria)) — Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth v Landeshauptmann von Wien (Industrial Policy — Food hygiene — Regulation (EC) No 852/2004 — Self-service retail of bread and bakery products)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/5

         Judgment of the Court (Eighth Chamber) of 6 October 2011 (reference for a preliminary ruling from the Unabhängiger Verwaltungssenat Wien (Austria)) — Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth v Landeshauptmann von Wien
   (Case C-382/10) (1)

   (Industrial Policy - Food hygiene - Regulation (EC) No 852/2004 - Self-service retail of bread and bakery products)
   2011/C 347/06
   Language of the case: German

      Referring court

   Unabhängiger Verwaltungssenat Wien

      Parties to the main proceedings

      Applicants: Erich Albrecht, Thomas Neumann, Van-Ly Sundara, Alexander Svoboda, Stefan Toth

      Defendant: Landeshauptmann von Wien

      Re:

   Reference for a preliminary ruling — Unabhängiger Verwaltungssenat Wien — Interpretation of paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs (OJ 2004 L 139, p. 1) — Protection of foodstuffs against contamination — Self-service retail of bread and bakery products — Administrative decision by a Member State ordering the installation of a technical device preventing customers from replacing goods after having touched them by hand

      Operative part of the judgment

   Paragraph 3 of Chapter IX of Annex II to Regulation (EC) No 852/2004 of the European Parliament and of the Council of 29 April 2004 on the hygiene of foodstuffs must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, with regard to containers used for self-service retail of bread and bakery products, the fact that a potential purchaser could conceivably have touched the foodstuffs offered for sale by hand or sneezed on them does not make it possible, on that basis alone, to hold that those foodstuffs were not protected against any contamination likely to render them unfit for human consumption, injurious to health or contaminated in such a way that it would be unreasonable to expect them to be consumed in that state.

      (1)  OJ C 274, 9.10.2010.


title: Case C-276/15: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 June 2015 — Hecht-Pharma GmbH v Hohenzollern Apotheke, owned by Winfried Ertelt

text:
               7.9.2015

               EN

               Official Journal of the European Union

               C 294/27

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 9 June 2015 — Hecht-Pharma GmbH v Hohenzollern Apotheke, owned by Winfried Ertelt
   (Case C-276/15)
   (2015/C 294/33)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Hecht-Pharma GmbH

      Defendant: Hohenzollern Apotheke, owned by Winfried Ertelt

      Questions referred

               1.

               Do points (1) and (2) of Article 3 of Directive 2001/83/EC (1) preclude a national provision such as point (1) of Paragraph 21(2) of the Arzneimittelgesetz (Law on medicinal products) according to which no marketing authorisation is required for medicinal products that are intended for administration to humans and, on account of the proven frequency with which they are the subject of medical and dental prescriptions, the essential manufacturing steps for such are carried out in a pharmacy as part of the normal pharmacy business producing in the course of one day up to one hundred packages ready for dispensation and intended for supply under the existing pharmacy operating licence?
               If Question 1 is answered in the affirmative:

               2.

               Does this conclusion also apply where a national provision such as point (1) of Paragraph 21(2) of the Arzneimittelgesetz is interpreted to mean that no marketing authorisation is required for medicinal products that are intended for administration to humans and, on account of the proven frequency with which they are the subject of medical and dental prescriptions, the essential manufacturing steps for such are carried out in a pharmacy as part of the normal pharmacy business producing in the course of one day up to one hundred packages ready for dispensation and intended for supply under the existing pharmacy operating licence, provided that the medicinal product is either supplied to an individual patient in accordance with a medical prescription, not necessarily submitted before the preparation of the medicinal product, or is prepared in the pharmacy in accordance with the prescriptions of a pharmacopoeia and is intended to be supplied directly to patients?

      (1)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67).


title: Judgment of the Court (Fourth Chamber) of 8 July 2004 in Case C-389/03: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil obligations — Failure to transpose Directive 1999/74/EC)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/9

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 8 July 2004
   in Case C-389/03: Commission of the European Communities v Kingdom of Belgium (1)

   (Failure of a Member State to fulfil obligations - Failure to transpose Directive 1999/74/EC)
   (2004/C 217/17)
   Language of the case: French
   In Case C-389/03: Commission of the European Communities (Agent: A. Bordes) v Kingdom of Belgium (Agent: E. Dominkovits) — application for a declaration that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens (OJ 1999 L 203, p. 53), and, in any event, by failing to inform the Commission thereof, the Kingdom of Belgium has failed to fulfil its obligations under that directive — the Court (Fourth Chamber), composed of: J.N. Cunha Rodrigues, President of the Chamber, F. Macken (Rapporteur) and K. Lenaerts, Judges; D. Ruiz-Jarabo Colomer, Advocate General; R. Grass, Registrar, has given a judgment on 8 July 2004, in which it:

               1.

               Declares that, by not adopting the laws, regulations and administrative provisions necessary to comply with Council Directive 1999/74/EC of 19 July 1999 laying down minimum standards for the protection of laying hens, the Kingdom of Belgium has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Belgium to pay the costs.

      (1)  OJ C 251 of 18.10.2003.


title: Case C-58/12 P: Judgment of the Court (Grand Chamber) of 26 November 2013 — Groupe Gascogne SA v European Commission (Appeal — Competition — Cartels — Industrial plastic bags sector — Whether the infringement by a subsidiary may be attributed to the parent company — Taking into account the total turnover of the group in order to calculate the upper limit of the fine — Excessive length of the proceedings before the General Court — Principle of effective legal protection)

text:
               8.2.2014

               EN

               Official Journal of the European Union

               C 39/3

         Judgment of the Court (Grand Chamber) of 26 November 2013 — Groupe Gascogne SA v European Commission
   (Case C-58/12 P) (1)

   (Appeal - Competition - Cartels - Industrial plastic bags sector - Whether the infringement by a subsidiary may be attributed to the parent company - Taking into account the total turnover of the group in order to calculate the upper limit of the fine - Excessive length of the proceedings before the General Court - Principle of effective legal protection)
   2014/C 39/04
   Language of the case: French

      Parties

      Appellant: Groupe Gascogne SA (represented by: P. Hubert and E. Durand, avocats)

      Other party to the proceedings: European Commission (represented by: F. Castillo de la Torre and N. von Lingen, Agents)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 16 November 2011 in Case T-72/06 Groupe Gascogne v Commission, by which that court dismissed the application for annulment in part and variation of Commission Decision C(2005) 4634 final of 30 November 2005 relating to a proceeding under Article 81 (EC) (Case COMP/F/38.354 — Industrial bags) concerning a cartel in the industrial plastic bags sector, and an application to vary that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Groupe Gascogne SA to pay the costs of this appeal.

      (1)  OJ C 89, 24.3.2012.


title: Judgment of the Court (Second Chamber) 30 May 2002 in Joined Cases C-284/00 and C-288/00 (Reference for a preliminary ruling from the Bundesverwaltungsgericht): Stratmann GmbH und Co. KG v Landrätin des Kreises Wesel (C-284/00) and Fleischversorgung Neuss GmbH und Co. v Landrat des Kreises Neuss (C-288/00) (Common agricultural policy — Fees for health inspections and controls in respect of fresh meat)

text:
C 169/8                 EN                      Official Journal of the European Communities                                           13.7.2002
                  JUDGMENT OF THE COURT                                          ment relationship or a collective agreement binding the trans-
                                                                                feror as regards that employee, are transferred to the transferee
                                                                                subject to the conditions and limitations laid down by that
                                                                                article, regardless of the fact that those obligations derive from
                            4 June 2002
                                                                                statutory instruments or are implemented by such instruments
                                                                                and regardless of the practical arrangements adopted for such
                                                                                implementation.
in Case C-164/00 (Reference for a preliminary ruling from
the High Court of Justice (England & Wales), Queen’s
Bench Division): Katia Beckmann v Dynamco Whicheloe                        (1) OJ C 192 of 8.7.2000.
                         Macfarlane Ltd (1)
(Directive 77/187/EEC — Safeguarding of employees’ rights
in the event of transfers of undertakings, businesses or parts
of businesses — Conditions for appplying exceptions to
maintenance of rights — Benefits provided for in the event                                   JUDGMENT OF THE COURT
                            of dismissal)
                                                                                (Second Chamber)
                          (2002/C 169/12)
                                                                                30 May 2002
                    (Language of the case: English)                        in Joined Cases C-284/00 and C-288/00 (Reference for a
                                                                           preliminary ruling from the Bundesverwaltungsgericht):
                                                                           Stratmann GmbH und Co. KG v Landrätin des Kreises
                                                                           Wesel (C-284/00) and Fleischversorgung Neuss GmbH
                                                                                und Co. v Landrat des Kreises Neuss (C-288/00) (1)
In Case C-164/00: Reference to the Court under Article 234                 (Common agricultural policy — Fees for health inspections
EC by the High Court of Justice of England and Wales, Queen’s                             and controls in respect of fresh meat)
Bench Division, for a preliminary ruling in the proceedings
pending before that court between Katia Beckmann and
                                                                                (2002/C 169/13)
Dynamco Whicheloe Macfarlane Ltd, on the interpretation of
Article 3 of Council Directive 77/187/EEC of 14 February
1977 on the approximation of the laws of the Member States                                     (Language of the case: German)
relating to the safeguarding of employees’ rights in the event
of transfers of undertakings, businesses or parts of businesses            (Provisional translation; the definitive translation will be published
(OJ 1977 L 61, p. 26), the Court (Sixth Chamber), composed                                     in the European Court Reports)
of: G.C. Rodrı́guez Iglesias, President, N. Colneric, and S. von
Bahr (Presidents of Chambers), C. Gulmann, D.A.O. Edward,
A. La Pergola, J.-P. Puissochet (Rapporteur), M. Wathelet,
R. Schintgen, J.N. Cunha Rodrigues and C.W.A. Timmermans,                  In Joined Cases C-284/00 and C-288/00: Reference to the
Judges; S. Alber, Advocate General; L. Hewlett, Administrator,             Court under Article 234 EC by the Bundesverwaltungsgericht
for the Registrar, has given a judgment on 4 June 2002, in                 (Germany) for a preliminary ruling in the proceedings pending
which it has ruled:                                                        before that court between Stratmann GmbH und Co. KG
                                                                           and Landrätin des Kreises Wesel (C-284/00), and between
                                                                           Fleischversorgung Neuss GmbH und Co. KG and Landrat des
1.    Early retirement benefits and benefits intended to enhance the       Kreises Neuss (C-288/00), on the interpretation of, first,
      conditions of such retirement, paid in the event of dismissal to     Council Directive 85/73/EEC of 29 January 1985 on the
      employees who have reached a certain age, such as the benefits       financing of health inspections and controls of fresh meat and
      at issue in the main proceedings, are not old-age, invalidity or     poultrymeat (OJ 1985 L 32, p. 14) and Council Decision 88/
      survivors’ benefits under supplementary company or inter-            408/EEC of 15 June 1988 on the levels of the fees to be
      company pension schemes within the meaning of Article 3(3)           charged for health inspections and controls of fresh meat
      of Council Directive 77/187/EEC of 14 February 1977 on the           pursuant to Directive 85/73 (OJ 1988 L 194, p. 24) and,
      approximation of the laws of the Member States relating to the       secondly, Directive 85/73 as amended by Council Directive
      safeguarding of employees’ rights in the event of transfers of       93/118/EC of 22 December 1993 (OJ 1993 L 340, p. 15), in
      undertakings, businesses or parts of businesses.                     conjunction with Council Directive 64/433/EEC of 26 June
                                                                           1964 on health problems affecting intra-Community trade in
                                                                           fresh meat (OJ, English Special Edition 1963-64, p. 185) both
2.    On a proper construction of Article 3 of Directive 77/187, the       in the version resulting from Council Directive 89/662/EEC of
      obligations applicable in the event of the dismissal of an           11 December 1989 concerning veterinary checks in intra-
      employee, arising from a contract of employment, an employ-          Community trade with a view to the completion of the internal
 ---pagebreak--- 13.7.2002                EN                       Official Journal of the European Communities                                            C 169/9
market (OJ 1989 L 395, p. 13) and in that resulting from                     ruling in the proceedings pending before that court between
Council Directive 91/497/EEC of 29 July 1991 amending and                    Prefetto Provincia di Cuneo and Silvano Carbone, in his
consolidating Directive 64/433 to extend it to the production                capacity as sole director of the company Expo Casa Manta Srl,
and marketing of fresh meat (OJ 1991 L 268, p. 69), the Court                on the interpretation of Council Regulation (EC) No 519/94
(Second Chamber), composed of: N. Colneric, President of the                 of 7 March 1994 on common rules for imports from certain
Chamber, R. Schintgen (Rapporteur) and V. Skouris, Judges;                   third countries and repealing Regulations (EEC) Nos 1765/82,
P. Léger, Advocate General; M.-F. Contet, Administrator, for                 1766/82 and 3420/83 (OJ 1994 L 67, p. 89) and Council
the Registrar, has given a judgment on 30 May 2002, in which                 Regulation (EC) No 3285/94 of 22 December 1994 on the
it has ruled:                                                                common rules for imports and repealing Regulation (EC)
                                                                             No 518/94 (OJ 1994 L 349, p. 53), the Court (Second
Costs of bacteriological examinations and examinations for trichinae         Chamber), composed of: N. Colneric (Rapporteur), President
carried out in accordance with Council Directive 64/433/EEC of               of the Chamber, R. Schintgen and V. Skouris, Judges; L.A. Geel-
26 June 1964 on health problems affecting intra-Community trade              hoed, Advocate General; R. Grass, Registrar, has given a
in fresh meat, both in the version resulting from Council Directive          judgment on 30 May 2002, in which it has ruled:
89/662/EEC of 11 December 1989 concerning veterinary checks in
intra-Community trade with a view to the completion of the internal          Council Regulation (EC) No 519/94 of 7 March 1994 on
market and in that resulting from Council Directive 91/497/EEC of            common rules for imports from certain third countries and repealing
29 July 1991 amending and consolidating Directive 64/433 to                  Regulations (EEC) Nos 1765/82, 1766/82 and 3420/83 and
extend it to the production and marketing of fresh meat, are covered         Council Regulation (EC) No 3285/94 of 22 December 1994 on
by the Community fee levied by the Member States for health                  common rules for imports and repealing Regulation (EC) No 518/
inspections and controls in respect of fresh meat pursuant to, first,        94 do not affect a Member State’s rules as regards the placing on the
Council Directive 85/73/EEC of 29 January 1985 on the financing              market of products imported from third countries.
of health inspections and controls of fresh meat and poultrymeat and
Council Decision 88/408/EEC of 15 June 1988 on the levels of the
fees to be charged for health inspections and controls of fresh meat         (1) OJ C 302 of 21.10.2000.
pursuant to Directive 85/73 and, secondly, Directive 85/73 as
amended by Council Directive 93/118/EC of 22 December 1993.
(1) OJ C 302 of 21.10.2000.
                                                                                JUDGMENT OF THE COURT
                                                                                (Second Chamber)
                  JUDGMENT OF THE COURT                                                                  14 May 2002
                         (Second Chamber)                                    in Case C-383/00: Commission of the European Communi-
                                                                                ties v Federal Republic of Germany(1)
                             30 May 2002
                                                                             (Failure by a Member State to fulfil its obligations —
in Case C-296/00 (Reference for a preliminary ruling from                    Directive 96/82/EC — Failure to implement within the
the Corte suprema di cassazione): Prefetto Provincia di                                               prescribed period)
                   Cuneo v Silvano Carbone (1)
                                                                                (2002/C 169/15)
(Regulations (EC) Nos 519/94 and 3285/94 — Scope —
Placing on the market of cordless telephones coming from
                            third countries)                                                    (Language of the case: German)
                           (2002/C 169/14)                                   (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: Italian)
(Provisional translation; the definitive translation will be published       In Case C-383/00, Commission of the European Communities
                    in the European Court Reports)                           (Agent: G. zur Hausen) v Federal Republic of Germany (Agents:
                                                                             W.-D. Plessing and B. Muttelsee-Schön): Application for a
                                                                             declaration that, by failing to take, within the prescribed
                                                                             period, all the measures necessary to comply with Council
In Case C-296/00: Reference to the Court under Article 234                   Directive 96/82/EC of 9 December 1996 on the control of
EC by the Corte suprema di cassazione (Italy) for a preliminary              major-accident hazards involving dangerous substances


title: Reference for a preliminary ruling from the Landesgericht Linz by order of that court of 24 October 1996 in the case of Gabriele Gruber v. Silhouette International Schmied GmbH & Co KG. (Case C-249/97)

text:
C 271 /8             1 EN 1               Official Journal of the European Communities                                    6 . 9 . 97
    — breach of the principle of proportionality: if, in             2.  Is it relevant that in Austria most nurseries are State
         observance of the Commission's interim measure,                 run or State-aided ?
         Portugal were to take the step of suspending
         immediately the State's guarantee, the creditor
         banks could demand immediate payment by the
         State of EPAC 's credit — which would thus be
         rendered insolvent and consequently have to be
         wound up — or directly from the Portuguese State            Reference for a preliminary ruling from the
         on the basis of its contractual responsibility.             Handelsgericht Wien by order of that court of 24 March
                                                                     1997 in the case of Pfeiffer Großhandel GmbH v. Löwa
                                                                                Warenhandel GmbH
         The measure which the Commission seeks to
         impose is, therefore, manifestly fundamental and                                   ( Case C-255/97)
         inappropriate and absolutely disproportionate to                                     ( 97/C 271/11 )
         any damage — which the Commission did not
         even attempt to identify — which might arise from
         the State's maintaining the guarantee until the final       Reference has been made to the Court of Justice of the
         decision,                                                   European Communities by an order of the Handelsgericht
                                                                     Wien ( Commercial Court, Vienna ) of 24 March 1997,
                                                                     which was received at the Court Registry on 14 July 1997,
    — failure of the Commission to provide figures for its           for a preliminary ruling in the case of Pfeiffer Großhandel
         accounting: the mere granting of the State                  GmbH v. Löwa Warenhandel GmbH on the following
         guarantee does not constitute aid since the                 question:
         guarantee cannot be described as aid inasmuch as
          EPAC is not due payment of amounts owed by                 Is Article 30 or Article 52 et seq. of the EC Treaty to be
         way of capital or interest from the State acting as         interpreted as precluding the application of national
         guarantor on behalf of a debtor undertaking, nor            provisions which require that in the case of trade marks or
         would it be sufficient that EPAC's claim against            designations of undertakings which are liable to be
          Silopor, for which the State is liable, were satisfied     confused the one with earlier priority is to be protected,
          for EPAC to be able to dispense entirely with the          and hence prohibit an undertaking from using, in three
          State's guarantee and completely recover its               provinces of Austria, a trade mark or designation under
          financial equilibrium .                                    which companies in the same group lawfully operate in
                                                                     other Member States ?
Reference for a preliminary ruling from the Landesgericht            Reference for a preliminary ruling by the Tribunal de
Linz by order of that court of 24 October 1996 in the case           Commerce, Brussels, by judgment of that court of 7 July
of Gabriele Gruber v. Silhouette International Schmied               1997 in the case of Procureur du Roi v. Déménagements-
                       GmbH & Co KG .                                Manutention       Transport SA, abbreviated       as     D.M.
                        ( Case C-249/97)                                                         Transport
                                                                                ( Case C-256/97)
                           97/C 271 / 10
                                                                                ( 97/C 271 /12 )
Reference has been made to the Court of Justice of the               Reference has been made to the Court of Justice of the
European Communities by an order of the Landesgericht                European Communities by judgment of the Tribunal de
Linz ( Labour and Social Court) of 24 October 1996,                  Commerce ( Commercial Court), Brussels of 7 July 1997,
which was received at the Court Registry on 8 July 1997,             received at the Court Registry on 15 July 1997, for a
for a preliminary ruling in the case of Gabriele Gruber v.           preliminary ruling in the case of Procureur du Roi against
Silhouette International Schmied GmbH & Co KG on the                 Déménagements-Manutention Transport SA, abbreviated
following questions :                                                as D.M. Transport, on the following questions:
                                                                     1 . Is Article 92 of the Treaty to be interpreted as
1 . Is it compatible with Article 119 of the EC Treaty                   meaning that measures in the form of payment
    that, owing to lack of child-care facilities,                        facilities granted by a public body such as the ONSS
    predominantly women have to terminate their                          enabling a commercial company to retain over a
    employment in order to look after their children and                 period of at least eight years a proportion of the sums
    these women, despite fulfilment of additional                        collected from staff and to use those sums in support
    conditions ( longer service ), receive no more than half             of its commercial activities, when that undertaking is
    of the compensation payable upon termination of                      unable to obtain funding under normal market
    employment for the actual length of their service                    conditions or to increase its capital, are to be
     ( Paragraph 23a ( 3 ) of the Angestelltengesetz ) whilst            considered State aid within the meaning of that
    men keep the full compensation period ?                               article ?


title: Case F-35/07: Judgment of the Civil Service Tribunal (Second Chamber) of 27 November 2008 — Klug v EMEA (Staff case — Temporary staff — Non-renewal of a fixed-term contract — Unfavourable appraisal report — Psychological harassment)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/51

         Judgment of the Civil Service Tribunal (Second Chamber) of 27 November 2008 — Klug v EMEA
   (Case F-35/07) (1)

   (Staff case - Temporary staff - Non-renewal of a fixed-term contract - Unfavourable appraisal report - Psychological harassment)
   (2009/C 55/92)
   Language of the case: German
   Parties

      Applicant: Bettina Klug (London, United Kingdom) (represented by: W. Grupp, lawyer, initially, then by S. Zickgraf, lawyer)

      Defendant: European Medicines Agency (EMEA) (represented by: V. Salvatore, S. Vanlievendael, Agents, assisted by H.-G. Kamman and N. Rössler, lawyers)
   Re:
   Annulment of the decision of the European Medicines Agency rejecting the applicant's claim for an extension of her employment contract — Application for a new staff report — Application for damages
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the action;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 140, 23.6.2007, p. 45.


title: Case C-247/09: Judgment of the Court (Eighth Chamber) of 18 November 2010 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons — Regulations (EEC) No 1408/71 and No 574/72 and Regulation (EC) No 859/2003 — Social security for migrant workers — Family benefits — National of a non member country working in Switzerland and residing with his spouse and children in a Member State of which the children are nationals)

text:
               15.1.2011

               EN

               Official Journal of the European Union

               C 13/11

         Judgment of the Court (Eighth Chamber) of 18 November 2010 (reference for a preliminary ruling from the Finanzgericht Baden-Württemberg — Germany) — Alketa Xhymshiti v Bundesagentur für Arbeit — Familienkasse Lörrach
   (Case C-247/09) (1)

   (Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons - Regulations (EEC) No 1408/71 and No 574/72 and Regulation (EC) No 859/2003 - Social security for migrant workers - Family benefits - National of a non member country working in Switzerland and residing with his spouse and children in a Member State of which the children are nationals)
   2011/C 13/18
   Language of the case: German

      Referring court

   Finanzgericht Baden-Württemberg

      Parties to the main proceedings

      Applicant: Alketa Xhymshiti

      Defendant: Bundesagentur für Arbeit — Familienkasse Lörrach

      Re:

   Reference for a preliminary ruling — Finanzgericht Baden-Württemberg — Interpretation, first, of Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (OJ 2003 L 124, p. 1) and, second, of Articles 2, 13 and 76 of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) and of Article 10(1)(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1972 (I), p. 159) — National of a non-member country working in the Swiss Confederation and residing with his spouse and children in a Member State of which the children are nationals — Refusal of the Member State of residence to grant family benefits — Compatibility of such a refusal of family benefits with the abovementioned Community provisions

      Operative part of the judgment

               1.

               In the case in which a national of a non-member country is lawfully resident in a Member State of the European Union and works in Switzerland, Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality does not apply to that person in his Member State of residence, in so far as Regulation No 859/2003 is not among the Community acts mentioned in section A of Annex II to the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons, signed at Luxembourg on 21 June 1999, which the parties to that agreement undertake to apply. Consequently, there is no obligation on the Member State of residence to apply Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, and Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71, in the version amended and updated by Regulation No 118/97, to that employee and his spouse;

               2.

               Articles 2, 13 and 76 of Regulation No 1408/71 and Article 10(1)(a) of Regulation No 574/72 are irrelevant in respect of a national of a non-member country in the situation of the claimant in the main proceedings, in so far as her situation is governed by the legislation of the Member State of residence. The fact that that national’s children are citizens of the European Union cannot, by itself, make the refusal to grant child allowance in the Member State of residence unlawful where, as is evident from the referring court’s findings, the statutory conditions which must be satisfied for the purposes of such a grant are not fulfilled.

      (1)  OJ C 233, 26.9.2009.


title: Case T-894/16: Action brought on 19 December 2016 — Air France v Commission

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/26

         Action brought on 19 December 2016 — Air France v Commission
   (Case T-894/16)
   (2017/C 046/30)
   Language of the case: French

      Parties

      Applicant: Société Air France (Roissy-en-France, France) (represented by: R. Sermier, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul Commission Decision (EU) 2016/1698 of 20 February 2014 concerning measures SA.22932 (11/C) (ex NN 37/07) implemented by France in favour of Marseille Provence Airport and airlines using the airport (notified under document C(2014) 870);

               —

               order the European Commission to pay the costs in their entirety.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging flaws in the contested decision as regards the aid from the département of Bouches-du-Rhône to the ‘Marseille-Provence 2’ (MP 2) terminal. In particular,

                           —

                           the measure does not meet clearly defined objectives of general interest. The Commission’s assessment in the contested decision is vitiated by a failure to state reasons, an error of law and an error of assessment, as regards:

                                       —

                                       the objective of tackling an expected increase in air traffic;

                                       —

                                       the objective of boosting the region’s economic development;

                           —

                           the aid is unnecessary.

               2.

               Second plea in law, alleging flaws in the contested decision as regards the agreement to purchase advertising space with the company Airport Marketing Services.

               3.

               Third plea in law, alleging flaws in the contested decision as regards the passenger charges for the terminal MP2.


title: Case C-535/13: Order of the Court (Third Chamber) of 17 July 2014 (request for a preliminary ruling from the Monomeles Protodikeio Athinon — Greece) — Honda Giken Kogyo Kabushiki Kaisha v Maria Patmanidi AE (Reference for a preliminary ruling — Article 99 of the Rules of Procedure of the Court — Trade marks — Right of the proprietor of a trade mark to oppose the placing on the market within the European Economic Area (EEA) of goods bearing that mark without his consent)

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/25

         Order of the Court (Third Chamber) of 17 July 2014 (request for a preliminary ruling from the Monomeles Protodikeio Athinon — Greece) — Honda Giken Kogyo Kabushiki Kaisha v Maria Patmanidi AE
   (Case C-535/13) (1)

   ((Reference for a preliminary ruling - Article 99 of the Rules of Procedure of the Court - Trade marks - Right of the proprietor of a trade mark to oppose the placing on the market within the European Economic Area (EEA) of goods bearing that mark without his consent))
   2014/C 409/37
   Language of the case: Greek

      Referring court

   Monomeles Protodikeio Athinon

      Parties to the main proceedings

      Applicant: Honda Giken Kogyo Kabushiki Kaisha

      Defendant: Maria Patmanidi AE

      Operative part of the order

   Articles 5 and 7 of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks, as amended by the Agreement on the European Economic Area of 2 May 1992, and Articles 9 and 13 of Regulation (EC) No 40/94 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark may oppose the initial placing on the market within the European Economic Area or the European Union of goods bearing that mark without his consent.

      (1)  OJ C 377, 21.12.2013.


title: Case C-563/10: Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 1 December 2010 — Kashayar Khavand v Federal Republic of Germany

text:
               5.2.2011

               EN

               Official Journal of the European Union

               C 38/7

         Reference for a preliminary ruling from the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (Germany) lodged on 1 December 2010 — Kashayar Khavand v Federal Republic of Germany
   (Case C-563/10)
   2011/C 38/09
   Language of the case: German

      Referring court

   Oberverwaltungsgericht für das Land Nordrhein-Westfalen

      Parties to the main proceedings

      Applicant: Kashayar Khavand

      Defendant: Federal Republic of Germany

      Questions referred

               1.

               Is homosexuality to be considered a sexual orientation within the meaning of the second sentence of Article 10(1)(d) of Directive 2004/83/EC (1) and can it be adequate reason for persecution?

               2.

               If Question 1 is to be answered in the affirmative:

                           (a)

                           To what extent is homosexual activity protected?

                           (b)

                           Can a homosexual person be told to live with his or her sexual orientation in his or her home country in secret and not allow it to become known to others?

                           (c)

                           Are specific prohibitions for the protection of public order and morals relevant when interpreting and applying Article 10(1)(d) of Directive 2004/83/EC or should homosexual activity be protected in the same way as for heterosexual people?

      (1)  Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (OJ 2004 L 304, p. 12).


title: Case T-464/15: Action brought on 11 August 2015 — Othman v Council

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/33

         Action brought on 11 August 2015 — Othman v Council
   (Case T-464/15)
   (2015/C 337/34)
   Language of the case: French

      Parties

      Applicant: Razan Othman (Damascus, Syria) (represented by: E. Ruchat, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Declare the applicant’s action admissible and well founded;

               —

               Consequently, annul Decision (CFSP) 2015/837 of 28 May 2015 and the subsequent measures implementing it, in so far as they relate to the applicant;

               —

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

      Pleas in law and main arguments

   In support of the action, the applicant raises three pleas in law which are, in essence, identical or similar to those raised in Case T-432/11 in Makhlouf v Council
       (1).

      (1)  OJ C 290, p. 13.


Important legal notice

|

E2000P0001

Request for an Advisory Opinion from the EFTA Court by Hérasdómur Reykjavíkur (Reykjavik City Court) pursuant to an order of Hæstiréttur Íslands (Supreme Court of Iceland) of 13 January 2000 in the case of Lánasý´ysla ríkisins v. Fjárfestingarbanka atvinnulífsins hf (Case E-1/00)

Official Journal C 130 , 11/05/2000 P. 0012 - 0012

Request for an Advisory Opinion from the EFTA Court by Héraðsdómur Reykjavíkur (Reykjavik City Court) pursuant to an order of Hæstiréttur Íslands (Supreme Court of Iceland) of 13 January 2000 in the case of Lánasýsla ríkisins v. Fjárfestingarbanka atvinnulífsins hf(Case E-1/00)(2000/C 130/11)A request has been made to the EFTA Court by Héraðsdómur Reykjavíkur (Reykjavik City Court), which was received at the Court Registry on 7 February 2000, for an Advisory Opinion in the case of Lánasýsla ríkisins v. Fjárfestingarbanka atvinnulífsins hf., on the following question:Is it compatible with the EEA Agreement, in particular Articles 4, 40, 42 and 61, when the national law of a Contracting Party provides:a) that a borrower, who is entitled to a state guarantee, shall pay a guarantee fee on foreign loans but not on domestic loans?b) that a borrower, who is entitled to a state guarantee, shall be subject to the payment of a higher guarantee fee on loans from entities in other Contracting Parties to the EEA compared to loans from domestic entities?


title: Case C-378/99: Action brought on 7 October 1999 by the Commission of the European Communities against the Federal Republic of Germany

text:
8.1.2000               EN                    Official Journal of the European Communities                                            C 6/11
— Infringement of the right to a fair hearing: The Com-                 Action brought on 7 October 1999 by the Commission
    mission, even despite having promised in the meantime to            of the European Communities against the Federal Repub-
    do so, did not make it possible for the applicant to                                            lic of Germany
    comment on a report on which the decision is essentially
    based. Documents which had been transmitted to the
    Commission by the Bundesverband deutscher Banken were                                          (Case C-378/99)
    also not made .available to the applicant.
                                                                                (2000/C 6/21)
— Defective statement of reasons: The Commission’s sources
    of information have not been sufficiently explained; in
    particular, only isolated statements from the report used
    by the Commission are adduced and not their overall                 An action against the Federal Republic of Germany was
    context. Finally, the Commission relies on its own relevant         brought before the Court of Justice of the European Communi-
    experience, without really possessing any such experience.          ties on 7 October 1999 by the Commission of the European
                                                                        Communities, represented by Marie Wolfcarius, Legal Adviser,
                                                                        and Gerald Braun, of its Legal Service, acting as Agents, with
— Infringement of the Treaty or of a legal provision to be              an address for service in Luxembourg at the office of Carlos
    applied in its implementation: The Commission applied               Gómez de la Cruz, of its Legal Service, Wagner Centre C 254,
    the concept of aid incorrectly and thus infringed Article           Kirchberg.
    87 EC. The incorporation of the Wohnungsbauförderungs-
    anstalt des Landes Nordrhein-Westfalen (Wfa) into the
    Westdeutsche Landesbank Girozentrale (WestLB) does not              The applicant claims that the Court should:
    constitute aid. The payment of 1,1 % before tax or 0,6 %
    after tax payable annually by WestLB to the Land of
    Nordrhein-Westfalen is reasonable. The relevant principle           (1) declare that, by failing by the due date to adopt all
    of the investor of capital operating in market-economy
                                                                             the legislative, regulatory and administrative measures
    conditions has been applied, in the case-law to date of the
                                                                             necessary in order to transpose into national law Council
    Court of Justice, exclusively to cases of reorganisation                 Directive 96/53/EEC (1) of 25 July 1996 laying down for
    and restructuring. Since WestLB is a sound undertaking
                                                                             certain road vehicles circulating within the Community
    operating at a profit, it is doubtful whether the principle
                                                                             the maximum authorized dimensions in national and
    of the capital investor in market-economy conditions is                  international traffic and the maximum authorized weights
    applicable at all in the present case. Even supposing that it
                                                                             in international traffic, the Federal Republic of Germany
    is applicable, the Commission’s decision is defective factu-
                                                                             has failed to fulfil its obligations under that directive;
    ally and legally, since it contradicts the criteria which
    according to the Court’s case-law make up the principle of
    the capital investor acting in market-economy conditions.
    By fastening on average return, the Commission excludes             (2) order the defendant to pay the costs.
    the wide spectrum of other legitimate motives, common
    in practice, of a public and/or private investor in making
    an investment. Contrary to previous practice and the
    case-law of the Court, the Commission thus places itself in         Pleas in law and main arguments
    the position of a private investor and sets itself up as a
    planning authority which fixes investments from public
    funds at a defined expected return and thereby deprives
    public investors of the possibility of behaving like a private      The mandatory nature of the provisions of the third paragraph
    investor in the market. Moreover, the principle of the              of Article 249 EC and of the first paragraph of Article 10 EC
    capital investor acting in market-economy conditions                is such as to oblige Member States to which directives are
    may not — as happened here — be applied without                     addressed to adopt the measures necessary in order fully to
    modification to the present investment in a profitable              transpose those directives into national law before the expir-
    undertaking. The contested decision is also defective               ation of the time-limit prescribed for so doing. The time-limit
    factually. The expected return of ‘12 % after tax’ on which         laid down in Article 11 of the directive expired on 17 Septem-
    the decision is based is incorrect. It has no factual basis         ber 1997 but Germany has not yet adopted all the necessary
    whatever. Finally, there is also no distortion of competition       measures.
    and no adverse affect on trade between States.
(1) OJ No C 366 of 18.12.1999, p. 14.                                   (1) OJ L 235 of 17.9.1996, p. 59.


title: Case C-503/15: Request for a preliminary ruling from the Secretario Judicial of the Juzgado de Violencia sobre la Mujer de Terrassa (Spain) lodged on 23 September 2015 — Ramón Margarit Panicello v Pilar Hernández Martínez

text:
               14.12.2015

               EN

               Official Journal of the European Union

               C 414/19

         Request for a preliminary ruling from the Secretario Judicial of the Juzgado de Violencia sobre la Mujer de Terrassa (Spain) lodged on 23 September 2015 — Ramón Margarit Panicello v Pilar Hernández Martínez
   (Case C-503/15)
   (2015/C 414/23)
   Language of the case: Spanish

      Referring court

   Secretario Judicial of the Juzgado de Violencia sobre la Mujer de Terrassa

      Parties to the main proceedings

      Applicant: Ramón Margarit Panicello

      Defendant: Pilar Hernández Martínez

      Questions referred

               1.

               Are Articles 34, 35, 207(2), 207(3) and 207(4) of Law 1/2000 [on Civil Procedure], which govern the administrative procedure for recovery of unpaid fees (‘jura de cuentas’), incompatible with Article 47 of the Charter of Fundamental Rights of the European Union (1) in that they preclude the possibility of judicial review? If that is the case:
               In the context of the procedure provided for in Articles 34 and 35 of Law 1/2000, is a Secretario Judicial a ‘court or tribunal’ for the purposes of Article 267 of the Treaty on the Functioning of the European Union?

               2.

               Are Articles 34 and 35 of Law 1/2000 incompatible with Articles 6(1) and 7(2) of Directive [93/13/EEC (2)] and Articles 6(1)(d), 11 and 12 of Directive 2005/29/EC (3) inasmuch as they preclude any examination ex officio of possible unfair terms or unfair commercial practices in contracts concluded between lawyers and natural persons who are acting for purposes which are outside their trade, business or profession?

               3.

               Are Articles 34 and 35 of Law 1/2000 incompatible with Articles 6(1) and 7(2) of, and [point 1(q) of the Annex to], Directive [93/13/EEC] inasmuch as they preclude the production of evidence for the purpose of resolving the dispute in the administrative procedure for recovery of unpaid fees?

      (1)  OJ 2000 C 364, p. 1.

      (2)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29).

      (3)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22).


title: Case T-4/10: Order of the General Court of 30 June 2011 — Al Saadi v Commission (Death of the applicant — Proceedings not resumed by the successors — No need to adjudicate)

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/19

         Order of the General Court of 30 June 2011 — Al Saadi v Commission
   (Case T-4/10) (1)

   (Death of the applicant - Proceedings not resumed by the successors - No need to adjudicate)
   2011/C 282/36
   Language of the case: English

      Parties

      Applicant: Faraj Faraj Hassan Al Saadi (Leicester, United Kingdom) (represented by J. Jones, Barrister and M. Arani, Solicitor)

      Defendant: European Commission (represented by M. Konstantinidis, T. Scharf and E. Paasivirta, Agents)

      Interveners in support of the defendant: Council of the European Union (represented by R. Szostak and E. Finnegan, Agents); Italian Republic (represented initially by G. Palmieri, and subsequently by G. Albenzio, lawyers); and French Republic (represented by G. de Bergues, E. Belliard and L. Butel, Agents)

      Re:

   APPLICATION for the annulment in part of Commission Regulation (EC) No 954/2009 of 13 October 2009 amending for the 114th time Council Regulation (EC) No 881/2002 of 27 May 2002, imposing certain specific restrictive measures directed against certain persons and entities associated with Usama bin Laden, the Al-Qaida network and the Taliban, in so far as the applicant appears on the list of persons, groups and entities covered by those provisions (OJ 2009 L 269, p. 20).

      Operative part of the order

               1.

               There is no need to adjudicate on this action.

               2.

               Each party shall bear its own costs.

      (1)  OJ C 51, 27.2.2010.


title: Case T-168/06: Order of the Court of First Instance of 11 September 2008 — Italian Republic v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/63

         Order of the Court of First Instance of 11 September 2008 — Italian Republic v Commission
   (Case T-168/06) (1)

   (2008/C 301/114)

      Language of the case: Italian

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

      (1)  OJ C 190, 12.8.2006.


title: Case F-26/07: Action brought on 21 March 2007 — Potoms and Scillia v Parliament

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/37

         Action brought on 21 March 2007 — Potoms and Scillia v Parliament
   (Case F-26/07)
   (2007/C 117/58)
   Language of the case: French
   Parties

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

      Defendant: European Parliament
   Form of order sought

               —

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

               —

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

               —

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

               —

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

               —

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

               —

               order the defendant to pay the costs.

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

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


title: Case T-476/15: Action brought on 19 August 2015 — European Food v OHIM — Société des Produits Nestlé (FITNESS)

text:
               12.10.2015

               EN

               Official Journal of the European Union

               C 337/37

         Action brought on 19 August 2015 — European Food v OHIM — Société des Produits Nestlé (FITNESS)
   (Case T-476/15)
   (2015/C 337/42)
   Language in which the application was lodged: English

      Parties

      Applicant: European Food SA (Drăgăneşti, Romania) (represented by: I. Speciac, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Société des Produits Nestlé SA (Vevey, Switzerland)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Community word mark ‘FITNESS’ — Community trade mark No 2 470 326

      Procedure before OHIM: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Fourth Board of Appeal of OHIM of 19 June 2015 in Case R 2542/2013-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision and remit the case to the Office in order to issue a decision in compliance with the Court’s ruling;

               —

               as a subsidiary, alter the contested decision and cancel CTM Fitness no 2470326;

               —

               order OHIM to pay the costs generated by the current proceedings.

      Pleas in law

               —

               Infringement of rule 37(b)(vi), rule 50(1) of Regulation No 2868/95 and Article 76 of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) and Article 52(1)(a) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(c) and Article 52(1)(a) of Regulation No 207/2009.


title: Judgment of the Court (Sixth Chamber) of 5 October 1999 in Case C-305/97 (reference for a preliminary ruling from the Court of Appeal (England and Wales)): Royscot Leasing Ltd and Royscot Industrial Leasing Ltd, Allied Domecq plc, T.C. Harrison Group Ltd v Commissioners of Customs & Excise (VAT — Article 11(1) and (4) of the Second Directive — Article 17(2) and (6) of the Sixth Directive — Right of deduction — Exclusions by national rules predating the Sixth Directive)

text:
8.1.2000              EN                     Official Journal of the European Communities                                                C 6/5
industries (OJ 1997 L 334, p. 25), — the Court, composed of:            composed of: G. Hirsch (Rapporteur), President of the Second
G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn, G. Hirsch          Chamber, acting for the President of the Sixth Chamber,
(Rapporteur) (Presidents of Chambers), J.C. Moitinho de Almei-          J.L. Murray and R. Schintgen, Judges; P. Léger, Advocate Gen-
da, C. Gulmann, J.L. Murray, L. Sevón, M. Wathelet and                 eral; H. von Holstein, Deputy Registrar, for the Registrar, has
R. Schintgen, Judges; N. Fennelly, Advocate General; R. Grass,          given a judgment on 5 October 1999, in which it has ruled:
Registrar; has given a judgment on 5 October 1999, in which
it:                                                                     1. Article 11(4) of Second Council Directive 67/228/EEC of
                                                                             11 April 1967 on the harmonisation of legislation of Member
1. Dismisses the application;                                                States concerning turnover taxes — Structure and procedures for
                                                                             application of the common system of value added tax, authorised
2. Orders the French Republic to pay the costs.                              Member States to introduce or retain, and Article 17(6) of Sixth
                                                                             Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             harmonisation of the laws of the Member States relating to
(1) OJ C 295 of 27.9.1997.                                                   turnover taxes — Common system of value added tax: uniform
                                                                             basis of assessment, authorises them to retain, general exclusions
                                                                             from the right to deduct the value added tax payable on the
                                                                             purchase of motor cars used by a taxable person for the purposes
                                                                             of his taxable transactions, even though
                                                                             — those cars were essential tools in the business of the taxable
                                                                                person concerned, or
                JUDGMENT OF THE COURT
                                                                             — those cars could not, in a specific case, be used for private
                                                                                purposes by the taxable person concerned.
                       (Sixth Chamber)
                                                                        2. On a proper construction of Article 17(6) of Sixth Directive
                                                                             77/388, Member States may retain the exclusions from the
                      of 5 October 1999
                                                                             right to deduct value added tax referred to in its second
                                                                             subparagraph, even though the Council did not decide, before the
in Case C-305/97 (reference for a preliminary ruling from                    expiry of the period laid down in the first subparagraph, which
the Court of Appeal (England and Wales)): Royscot                            expenditure should not be eligible for deduction of value added
Leasing Ltd and Royscot Industrial Leasing Ltd, Allied                       tax.
Domecq plc, T.C. Harrison Group Ltd v Commissioners
                    of Customs & Excise (1)
                                                                        (1) OJ C 318 of 18.10.1997.
(VAT — Article 11(1) and (4) of the Second Directive —
Article 17(2) and (6) of the Sixth Directive — Right of
deduction — Exclusions by national rules predating the
                        Sixth Directive)
                         (2000/C 6/09)                                                    JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                  (Language of the case: English)
                                                                                of 5 October 1999
                                                                        in Case C-327/97 P: Christos Apostolidis and Others v
In Case C-305/97, reference to the Court under Article 177 of                   Commission of the European Communities (1)
the EC Treaty (now Article 234 EC) by the Court of Appeal
(England and Wales) (United Kingdom) for a preliminary ruling           (Appeal — Remuneration — Weighting coefficient —
in the proceedings pending before that court between Royscot             Compliance with a judgment of the Court of First Instance)
Leasing Ltd and Royscot Industrial Leasing Ltd, Allied Domecq
plc, T.C. Harrison Group Ltd and Commissioners of Customs                                           (2000/C 6/10)
& Excise — on the interpretation of Article 11(4) of Second
Council Directive 67/228/EEC of 11 April 1967 on the
harmonisation of legislation of Member States concerning                                     (Language of the case: French)
turnover taxes — Structure and procedures for application of
the common system of value added tax (OJ, English Special
Edition 1967, p. 16) and of Article 17(6) of Sixth Council              (Provisional translation; the definitive translation will be published
Directive 77/388/EEC of 17 May 1977 on the harmonisation                                    in the European Court Reports)
of the laws of the Member States relating to turnover taxes —
Common system of value added tax: uniform basis of assess-              In Case C-327/97 P: Christos Apostolidis and Others, officials
ment (OJ 1977 L 145, p. 1) — the Court (Sixth Chamber),                 and members of the temporary staff of the Commission of the


title: Joined Cases C-362/07 and C-363/07: Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects (Common Customs Tariff — Combined Nomenclature — Tariff classification — Multi-function apparatus — Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function — Heading 8471 — Heading 9009)

text:
               7.2.2009

               EN

               Official Journal of the European Union

               C 32/6

         Judgment of the Court (Third Chamber) of 11 December 2008 (reference for a preliminary ruling from the Tribunal d'instance du VIIe arrondissement de Paris — France) — Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07) v Administration des douanes — Direction générale des douanes et droits indirects
   (Joined Cases C-362/07 and C-363/07) (1)

   (Common Customs Tariff - Combined Nomenclature - Tariff classification - Multi-function apparatus - Apparatus combining the functions of laser printer and a digital electronic scanner module, with a copier function - Heading 8471 - Heading 9009)
   (2009/C 32/10)
   Language of the case: French
   Referring court
   Tribunal d'instance du VIIe arrondissement de Paris
   Parties to the main proceedings

      Applicants: Kip Europe SA, Kip (UK) Ltd, Caretrex Logistiek BV, Utax GmbH (C-362/07), Hewlett Packard International SARL (C-363/07)

      Defendant: Administration des douanes — Direction générale des douanes et droits indirects
   Re:
   Reference for a preliminary ruling — Tribunal d'instance du VIIème arrondissement de Paris (France) — Interpretation of Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 1987 L 256, p. 1), in the version applicable at the material time, and validity of Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature (OJ 2006 L 70, p. 9) — Multifunctional apparatus comprising a laser printer module, a scanner module and a computer module — Whether classification should be under tariff heading 8471 60 40 (Automatic data-processing machines) on the basis of General Rule 3(b) for the interpretation of the CN (printing function giving the apparatus its ‘essential character’) or under heading 9009 12 00 (photocopying apparatus) pursuant to Note 5(E) to Chapter 84 of the CN (apparatus autonomously fulfilling a specific function — copying — other than data-processing)
   Operative part of the judgment

               1.

               Note 5(E) to Chapter 84 of the combined nomenclature constituting Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1719/2005 of 27 October 2005, is to be interpreted as meaning that only machines incorporating an automatic data-processing machine or working in conjunction with such a machine, whose function is not data processing, perform ‘a specific function other than data processing’;

               2.

               If the copying function performed by the machines at issue in the main proceedings is secondary in relation to the printing and electronic scanning functions, they must be considered units of automatic data-processing machines within the meaning of Note 5(B) to Chapter 84 of the combined nomenclature constituting Annex I to Regulation No 2658/87, as amended by Regulation No 1719/2005, which units, by application of Note 5(C) to that chapter, if they are presented in isolation, fall within heading 8471. In such a case, the relevant subheading must be determined in accordance with Note 3 to Section XVI of the said nomenclature. However, if the importance of that copying function is equivalent to that of the other two functions, those machines must be classified, by application of General Rule 3(b) of the General rules for the interpretation of that nomenclature, under the heading corresponding to the module which gives those machines their essential character. If such identification proved impossible, they must be classified under heading 9009 in accordance with General Rule 3(c);

               3.

               Examination of the fifth questions referred has not raised any factor liable to affect the validity of point 4 of the Annex to Commission Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature.

      (1)  OJ C 269, 10.11.2007.


title: Case T-29/14: Action brought on 7 January 2014 — Taetel v Commission

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/20

         Action brought on 7 January 2014 — Taetel v Commission
   (Case T-29/14)
   2014/C 61/37
   Language of the case: Spanish

      Parties

      Applicant: Taetel, SL (Madrid, Spain) (represented by: E. Navarro Varona, P. Vidal Martínez, J. López-Quiroga Teijero and G. Canalejo Lasarte, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the contested decision under Article 263 TFEU in so far as the decision establishes the existence of State aid and orders its recovery from the investors;

               —

               in the alternative, annul Articles 1, 2 and 4(1) of the decision, inasmuch as they identify the investors as beneficiaries who have to repay the alleged aid;

               —

               in the alternative, declare inapplicable the order, in Article 4(1), for recovery of the aid from the investors, inasmuch as it is contrary to the principles of legal certainty and the protection of legitimate expectations since recovery may not be ordered from a date earlier than the publication of the decision to initiate [the formal investigation procedure];

               —

               in the alternative, annul Article 2 of the decision and declare invalid the methodology for determining the alleged advantage [conferred] to be repaid by the investors;

               —

               declare non-existent or, in the alternative, annul in part Article 4(1) of the decision relating to the prohibition on ‘transfer[ring] the burden of recovery on other subjects’, inasmuch as this amounts to a decision on the prohibition or presumed invalidity of the contractual clauses on recovery from third parties of the amounts the investors have to repay to the Spanish State; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The decision contested in the present proceedings is the same as that contested in Case T-700/13 Bankia v Commission, Case T-719/13 Lico Leasing and Pequeños y Medianos Astilleros de Reconversión v Commission and Case T-3/14 Anudal Industrial v Commission.
   The pleas in law and main arguments are similar to those put forward in those cases.
   It is claimed, in particular, that Article 107 TFEU has been infringed in so far as the contested decision finds that, as a whole, the tax regime at issue, applicable to certain finance lease agreements for the acquisition of newly-built vessels, constitutes State aid.
   According to the applicant, the fiscal decision also infringes Article 107 TFEU in so far as it finds that the measures that make up the tax regime in question constitute ‘new’ State aid.
   In the alternative, the applicant alleges breach of the principles of legal certainty and the protection of legitimate expectations, and infringement of Articles 107, 108 and 206 TFEU, in so far as [the decision] identifies incorrectly the beneficiaries and determines incorrectly the amounts to be recovered; and infringement of Article 108(3) TFEU, Article 19 of Council Regulation (EC) No 659/1999 [of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty], Article 3(6) of the Treaty on European Union and Articles 16 and 17 of the Charter of Fundamental Rights of the European Union, in so far as Article 4(1) of the contested decision prohibits, or finds to be invalid the contractual clauses pursuant to which the investors may claim from third parties the amounts they would have had to repay to the Spanish authorities.


title: Case C-453/09: Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Federal Republic of Germany (Failure of a Member State to fulfil obligations — Value added tax — Directive 2006/112/EC — Application of a reduced rate — Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption — Supply, importation and acquisition of certain live animals, in particular horses)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/9

         Judgment of the Court (Seventh Chamber) of 12 May 2011 — European Commission v Federal Republic of Germany
   (Case C-453/09) (1)

   (Failure of a Member State to fulfil obligations - Value added tax - Directive 2006/112/EC - Application of a reduced rate - Live animals normally intended for use in the preparation of foodstuffs for human and animal consumption - Supply, importation and acquisition of certain live animals, in particular horses)
   2011/C 204/16
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: D. Triantafyllou and B.-R. Killmann, acting as Agents)

      Defendant: Federal Republic of Germany (represented by: J. Möller and C. Blaschke, acting as Agents)

      Interveners in support of the defendant: French Republic (represented by: G. de Bergues and B. Beaupère-Manokha, acting as Agents), Kingdom of the Netherlands (represented by: C.M. Wissels and M. Noort, acting as Agents)

      Re:

   Failure of a Member State to fulfil obligations — Breach of Articles 96 and 98, read in conjunction with Annex III, of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Reduced rate — Supply, importation and acquisition of certain live animals (in particular horses) which are not intended for the preparation or production of foodstuffs for human or animal consumption.

      Operative part of the judgment

   The Court:

               1.

               Declares that, by applying a reduced rate of value added tax to all supplies, imports and intra-Community acquisitions of horses, the Federal Republic of Germany has failed to fulfil its obligations under Articles 96 and 98 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, read in conjunction with Annex III thereto;

               2.

               Orders the Federal Republic of Germany to pay the costs;

               3.

               Orders the French Republic and the Kingdom of the Netherlands to bear their own costs.

      (1)  OJ C 24, 30.1.2010.


title: Case T-116/17: Action brought on 20 February 2017 — Spiegel-Verlag Rudolf Augstein and Sauga v ECB

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/44

         Action brought on 20 February 2017 — Spiegel-Verlag Rudolf Augstein and Sauga v ECB
   (Case T-116/17)
   (2017/C 121/64)
   Language of the case: German

      Parties

      Applicants: Spiegel-Verlag Rudolf Augstein GmbH & Co. KG (Hamburg, Germany) and Michael Sauga (Berlin, Germany) (represented by: A. Koreng and T. Feldmann, lawyers)

      Defendant: European Central Bank (ECB)

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision, notified by letter of 15 December 2016, of the Board of Directors of the European Central Bank, by which the applicants’ request for access to the two European Central Bank documents ‘The impact on government deficit and debt from off-market swaps. The Greek case’ (SEC/GovC/X/10/88a) and ‘The Titlos transaction and possible existence of similar transactions impacting on the euro area government debt or deficit levels’ (SEC/GovC/X/10/88b) was rejected;

               —

               order the European Central Bank to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on two pleas in law

               1.

               First plea in law, alleging misapplication of the second indent of Article 4(1)(a) of Decision ECB/2004/3 (1)

               The applicants claim that the ECB has failed to show in sufficient detail that disclosure of the documents concerned would undermine the protection of the public interest as regards the financial, monetary or economic policy of the European Union or of a Member State.
               The risk of detriment to the public interest claimed by the ECB is, they submit, more than six years after the documents were drafted and after a fundamental change in the surrounding circumstances, no longer a matter giving rise to actual concern.

               2.

               Second plea in law, alleging misapplication of Article 4(3) of Decision ECB/2004/3

                           —

                           The applicants submit that the documents in question did not serve as preparation for actual decisions but only for general opinion-forming and information purposes within the ECB.

                           —

                           Furthermore, it also cannot be assumed that ECB employees would allow themselves to be intimidated by the possibility that the documents might be disclosed.

                           —

                           Moreover, as matters stand, in light of the documents at issue in the present case, there is no fear of improper third-party influence over the deliberations of the ECB.

                           —

                           Additionally, the ECB has not sufficiently weighed and taken into consideration the public interest in access to the information.

                           —

                           Finally, it is not for the ECB to assess how the public debate can be enriched; rather, that is a role for the press as part of the ‘watchdog function’ which the European Court of Human Rights has recognised it as possessing.

      (1)  2004/258/EC: Decision of the European Central Bank of 4 March 2004 on public access to European Central Bank documents (ECB/2004/3) (OJ 2004 L 80, p. 42).


title: Case C-181/09: Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/16

         Reference for a preliminary ruling from the Sofiyski gradski sad (Bulgaria) lodged on 19 May 2009 — Canon Kabushiki Kaisha v IPN Bulgaria OOD
   (Case C-181/09)
   2009/C 297/20
   Language of the case: Bulgarian

      Referring court

   Sofiyski gradski sad (Bulgaria)

      Parties to the main proceedings

      Applicant: Canon Kabushiki Kaisha

      Defendant: IPN Bulgaria OOD
   By decision of 17 September 2009, the Court of Justice (Fifth Chamber) declared the reference for a preliminary ruling to be manifestly inadmissible.


title: Case T-195/05: Action brought on 19 May 2005 by N.V. Deloitte Business Advisory against the Commission of the European Communities

text:
               6.8.2005

               EN

               Official Journal of the European Union

               C 193/30

         Action brought on 19 May 2005 by N.V. Deloitte Business Advisory against the Commission of the European Communities
   (Case T-195/05)
   (2005/C 193/50)
   Language of the case: Dutch
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 19 May 2005 by N.V. Deloitte Business Advisory, Brussels, represented by Dirk Van Heuven, Steve Ronse and Sofie Logie, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the contested decisions;

               2.

               order the defendant to pay all the costs.

         Pleas in law and main arguments
   The applicant, which was in a consortium with other undertakings, submitted a tender, under the name EUPHET, in response to the invitation to tender for the ‘Sanco Evaluation Framework Contract, Lot 1 (Public Health) — tender No SANCO/2004/01/041’, issued by the European Commission. In the application, the applicant seeks annulment of the European Commission's decision not to select EUPHET for the contract, as well as annulment of the award decision, not served on and unknown to the applicant, by which the contract was awarded to a third party.
   In support of its application, the applicant pleads infringement of Article 94 of Regulation No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (1) and infringement of Articles 138 and 147(3) of Regulation No 2342/2002 laying down detailed rules for the implementation of Regulation No 1605/2002. (2) The applicant also pleads breach of the tender documents, of the general duty to state reasons and of the principle of the protection of legitimate expectations.
   According to the applicant, the reason stated for exclusion, namely that the proposal for measures to prevent a conflict of interest was inadequate and did not provide a sufficient guarantee, is completely unlawful and in breach of the contract documents. The applicant maintains that it is sufficient that the contractor undertake, by signing the draft contract, to inform the Commission immediately of any conflict of interest and to take the necessary steps to resolve such conflict as soon as possible. The applicant also states that it proposed measures which went further than what was required.
   The applicant further claims that it was not at any time invited to supply additional information. According to the applicant, that constitutes an infringement of Article 146(3) of Regulation No 2342/2002, a breach of the principle of the protection of legitimate expectations, of the principle of the right to be treated fairly and of the principle of non-discrimination, as well as an infringement of Articles 89(1) and 99 of Regulation No 1605/2002.

      (1)  Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 248, p. 1).

      (2)  Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).