title: Judgment of the Court (Sixth Chamber) of 16 September 1999 in Case C-435/97 (reference for a preliminary ruling from the Verwaltungsgericht, Autonome Sektion für die Provinz Bozen): World Wildlife Fund (WWF) and Others v Autonome Provinz Bozen and Others (Environment - Directive 85/337/EEC - Assessment of the effects of certain public and private projects)

text:
C 366/4                   EN                     Official Journal of the European Communities                                         18.12.1999
1. On a proper construction of Council Regulation (EEC)                     1. Declares that, by exempting from value added tax intra-
     No 1768/92 of 18 June 1992 concerning the creation of a                     Community imports and acquisitions of arms, ammunition and
     supplementary protection certificate for medicinal products and,            equipment exclusively for military use, other than the aircraft and
     in particular, Article 3(b) thereof, where a product in the form            warships mentioned in points 23 and 25 of Annex F to Sixth
     referred to in the marketing authorisation is protected by a basic          Council Directive 77/388/EEC of 17 May 1977 on the
     patent in force, the supplementary protection certificate is capable        harmonisation of the laws of the Member States relating to
     of covering the product, as a medicinal product, in any of the              turnover taxes — Common system of value added tax: uniform
     forms enjoying the protection of the basic patent.                          basis of assessment, in the version resulting from Council
                                                                                Directive 91/680/EEC of 16 December 1991 supplementing
2. In order to determine, in connection with the application of                  the common system of value added tax and amending Directive
     Regulation No 1768/92 and, in particular, Article 3(a) thereof,             77/388/EEC with a view to the abolition of fiscal frontiers,
     whether a product is protected by a basic patent, reference must            notwithstanding the provisions of Articles 2(2), 14, 28a, and
     be made to the rules which govern that patent.                              28c(B) of that directive, the Kingdom of Spain has failed to fulfil
                                                                                its obligations under that directive;
(1) OJ No C 41 of 7.2.1998.                                                 2. Orders the Kingdom of Spain to pay the costs.
                                                                            (1) OJ No C 41 of 7.2.1998.
                   JUDGMENT OF THE COURT
                           (Sixth Chamber)                                                    JUDGMENT OF THE COURT
                        of 16 September 1999                                                          (Sixth Chamber)
in Case C-414/97: Commission of the European Communi-                                             of 16 September 1999
                     ties v Kingdom of Spain (1)
                                                                            in Case C-435/97 (reference for a preliminary ruling
(Failure of a Member State to fulfil obligations — Imports                  from the Verwaltungsgericht, Autonome Sektion für die
and acquisitions of armaments — Sixth VAT Directive —                       Provinz Bozen): World Wildlife Fund (WWF) and Others
          National legislation not complying therewith)                               v Autonome Provinz Bozen and Others (1)
                            (1999/C 366/06)                                 (Environment — Directive 85/337/EEC — Assessment of
                                                                                the effects of certain public and private projects)
                     (Language of the case: Spanish)                                                   (1999/C 366/07)
(Provisional translation; the definitive translation will be published                          (Language of the case: German)
                     in the European Court Reports)
In Case C-414/97: Commission of the European Communities                    (Provisional translation; the definitive translation will be published
(Agents: Miguel Dı́az-Llanos La Roche and Carlos Gómez de la                                   in the European Court Reports)
Cruz) v Kingdom of Spain (Agent: Nuria Diaz Abad) —
application for a declaration that, by exempting from value                 In Case C-435/97: reference to the Court under Article 177 of
added tax intra-Community imports and acquisitions of arms,                 the EC Treaty (now Article 234 EC) from the Verwaltungs-
ammunition and equipment exclusively for military use, other                gericht, Autonome Sektion für die Provinz Bozen (Administrat-
than the aircraft and warships mentioned in points 23 and 25                ive Court, Autonomous Division for the Province of Bolzano),
of Annex F to Sixth Council Directive 77/388/EEC of 17 May                  Italy, for a preliminary ruling in the proceedings pending
1977 on the harmonisation of the laws of the Member States                  before that court between World Wildlife Fund (WWF) and
relating to turnover taxes — Common system of value added                   Others and Autonome Provinz Bozen and Others — on the
tax: uniform basis of assessment (OJ 1977 L 145, p. 1),                     interpretation of Council Directive 85/337/EEC of 27 June
notwithstanding the provisions of Articles 2(2), 14, 28a and                1985 on the assessment of the effects of certain public and
28c(B) of that directive, the Kingdom of Spain has failed to                private projects on the environment (OJ 1985 L 175, p. 40)
fulfil its obligations under the EC Treaty — the Court (Sixth               — the Court (Sixth Chamber), composed of: P.J.G. Kapteyn,
Chamber), composed of: P.J.G. Kapteyn, President of the                     President of the Chamber, J.L. Murray and H. Ragnemalm
Chamber, G. Hirsch and J.L. Murray (Rapporteur), Judges;                    (Rapporteur), Judges; J. Mischo, Advocate General; L. Hewlett,
A. Saggio, Advocate General; R. Grass, Registrar, has given a               Administrator, for the Registrar, has given a judgment on
judgment on 16 September 1999, in which it:                                 16 September 1999, in which it has ruled:
 ---pagebreak--- 18.12.1999              EN                       Official Journal of the European Communities                                            C 366/5
1. Articles 4(2) and 2(1) of Council Directive 85/337/EEC of                    or particular measures necessary to ensure that projects are
   27 June 1985 on the assessment of the effects of certain public              examined in order to determine whether they are likely to have
   and private projects on the environment are to be interpreted as             significant effects on the environment and, if so, to ensure that
   not conferring on a Member State the power either to exclude,                they are subject to an impact assessment.
   from the outset and in their entirety, from the environmental
   impact assessment procedure established by the Directive certain
   classes of projects falling within Annex II to the Directive,            (1) OJ No C 72 of 7.3.1998.
   including modifications to those projects, or to exempt from such
   a procedure a specific project, such as the project of restructuring
   an airport with a runway shorter than 2 100 metres, either
   under national legislation or on the basis of an individual
   examination of that project, unless those classes of projects in
   their entirety or the specific project could be regarded, on the
   basis of a comprehensive assessment, as not being likely to have
   significant effects on the environment. It is for the national court
   to review whether, on the basis of the individual examination
   carried out by the national authorities which resulted in the                             JUDGMENT OF THE COURT
   exclusion of the specific project at issue from the assessment
   procedure established by the Directive, those authorities correctly
                                                                                (Fourth Chamber)
   assessed, in accordance with the Directive, the significance of the
   effects of that project on the environment.
                                                                                of 16 September 1999
2. In the case of a project requiring assessment under Directive            in Case C-27/98 (reference for a preliminary ruling from
   85/337, Articles 2(1) and (2) thereof are to be interpreted as           the Bundesvergabeamt): Metalmeccanica Fracasso SpA,
   allowing a Member State to use an assessment procedure other             Leitschutz Handels- und Montage GmbH v Amt der
   than the procedure introduced by the Directive where that                Salzburger Landesregierung für den Bundesminister für
   alternative procedure is incorporated in a national procedure                          wirtschaftliche Angelegenheiten (1)
   which exists or is to be established within the meaning of
   Article 2(2) of the Directive. However, an alternative procedure
   of that kind must satisfy the requirements of Article 3 and              (Public works contract — Contract awarded to sole tenderer
   Articles 5 to 10 of the Directive, including public participation                                judged to be suitable)
   as provided for in Article 6.
                                                                                (1999/C 366/08)
3. Article 1(5) of Directive 85/337 is to be interpreted as not
   applying to a project, such as that at issue in the main
   proceedings, which, while provided for by a legislative provision                            (Language of the case: German)
   setting out a programme, has received development consent under
   a separate administrative procedure. The requirements which such
   a provision and the process under which it has been adopted              (Provisional translation; the definitive translation will be published
   must satisfy in order that the objectives of the Directive, including                        in the European Court Reports)
   that of supplying information, can be regarded as achieved
   consist in the adoption of the project by a specific legislative act
   which includes all the elements which may be relevant to the             In Case C-27/98: reference to the Court under Article 177 of
   assessment of the impact of the project on the environment.              the EC Treaty (now Article 234 EC) from the Bundesverga-
                                                                            beamt, Austria, for a preliminary ruling in the proceedings
                                                                            pending before that court between Metalmeccanica Fracasso
                                                                            SpA, Leitschutz Handels- und Montage GmbH and Amt
4. Article 1(4) of Directive 85/337 is to be interpreted as meaning         der Salzburger Landesregierung für den Bundesminister für
   that an airport which may simultaneously serve both civil and            wirtschaftliche Angelegenheiten — on the interpretation of
   military purposes, but whose main use is commercial, falls within        Council Directive 93/37/EEC of 14 June 1993 concerning the
   the scope of the Directive.                                              coordination of procedures for the award of public works
                                                                            contracts (OJ 1993 L 199, p. 54), as amended by European
                                                                            Parliament and Council Directive 97/52/EC of 13 October
5. Articles 4(2) and 2(1) of Directive 85/337 are to be interpreted         1997 amending Directives 92/50/EEC, 93/36/EEC and
   as meaning that, where the discretion conferred by those                 93/37/EEC concerning the coordination of procedures for the
   provisions has been exceeded by the legislative or administrative        award of public service contracts, public supply contracts and
   authorities of a Member State, individuals may rely on those             public works contracts respectively (OJ 1997 L 328, p. 1) the
   provisions before a court of that Member State against the               Court (Fourth Chamber), composed of: P.J.G. Kapteyn (Rappor-
   national authorities and thus obtain from the latter the setting         teur), President of the Chamber, J.L. Murray and H. Ragne-
   aside of the national rules or measures incompatible with those          malm, Judges; A. Saggio, Advocate General; H.A. Rül, Principal
   provisions. In such a case, it is for the authorities of the Member      Administrator, for the Registrar, has given a judgment on
   State to take, according to their relevant powers, all the general       16 September 1999, in which it has ruled:


title: Judgment of the Court of First Instance of 12 September 2000 in Case T-259/97: Rui Teixeira Neves against the Court of Justice of the European Communities (Officials — Duty to act in good faith and maintain the dignity of the office — Principle of the separation of powers — Freedom of association — Disciplinary measures — Sanction)

text:
4.11.2000              EN                     Official Journal of the European Communities                                      C 316/21
                                                        COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 12 September 2000
                      of 19 September 2000
                                                                         in Case T-259/97: Rui Teixeira Neves against the Court of
                                                                                Justice of the European Communities (1)
in Case T-252/97: Anton Dürbeck GmbH v Commission
               of the European Communities (1)                           (Officials — Duty to act in good faith and maintain the
                                                                         dignity of the office — Principle of the separation of powers
                                                                         — Freedom of association — Disciplinary measures —
(Bananas — Imports from ACP States and third countries                                                 Sanction)
— Request for additional import licences — Case of hardship
— Transitional measures — Article 30 of Regulation                                                 (2000/C 316/39)
(EEC) No 404/93 — Limitation of damage — Action for
                            annulment)                                                     (Language of the case: Portuguese)
                                                                         In Case T-259/97: Rui Teixeira Neves, represented by Adriano
                         (2000/C 316/38)                                 Encarnação, of the Oporto Bar, with an address for service in
                                                                         Luxembourg at the applicant’s address, 100 Rue de Steinsel,
                                                                         L-7254 Bereldange, against the Court of Justice of the European
                                                                         Communities (Agents: Initially T. Millett, subsequently
                   (Language of the case: German)                        M. Schauss and F. Ferreira Pinto) — first, an action for
                                                                         annulment of the decision of the Court of Justice of 20 January
                                                                         1997 imposing on the applicant the disciplinary sanction of
In Case T-252/97: Anton Dürbeck GmbH, established in                     relegation in step and, secondly, an action for damages seeking
Frankfurt am Main (Germany), G. Meier, Rechtsanwalt, Colog-              an order against the defendant requiring it to make good the
ne, Berrenrather Straße 313, Cologne (Germany) v Com-                    non-material damage allegedly suffered as a result of that
mission of the European Communities (Agents: K.-D. Bor-                  decision — the Court of First Instance (Fourth Chamber),
chardt and H. van Vliet), supported by Kingdom of Spain                  composed of V. Tiili, President, R.M. Moura Ramos and
(Agent: R. Silva de Lapuerta) and by French Republic (Agents:            P. Mengozzi, Judges; H. Jung, Registrar, gave a judgment on
K. Rispal-Bellanger and C. Vasak) — application for partial              12 September 2000, in which it:
annulment of the Commission decision of 10 July 1997 on                  1.    dismisses the application.
the adoption of transitional measures in favour of the applicant
within the framework of the common organisation of the                   2.    orders each party to bear its own costs.
market in bananas — the Court of First Instance (Fifth
Chamber), composed of: R. Garcı́a-Valdecasas, President,
P. Lindh and J.D. Cooke, Judges; G. Herzig, Administrator, for           (1) OJ 1997 C 357.
the Registrar, has given a judgment on 19 September 2000, in
which it:
1.    Dismisses the application;
                                                                             JUDGMENT OF THE COURT OF FIRST INSTANCE
2.    Orders the applicant to bear its own costs and pay those                                 of 20 September 2000
      incurred by the Commission;
                                                                         in Case T-261/97 Eleonore Orthmann v Commission of
                                                                                the European Communities (1)
3.    Orders the Kingdom of Spain and the French Republic to bear
      their own costs.                                                   (Officials — Scientific or technical services — Advancement
                                                                         from Category B to Category A — Interest in bringing
                                                                                proceedings)
(1) OJ C 357 of 22.11.97.
                                                                                (2000/C 316/40)
                                                                                (Language of the case: Italian)
                                                                         In Case T-261/97: Eleonore Orthmann, an official of the
                                                                         Commission of the European Communities, posted to the


title: Case C-174/05: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by judgment of that court of 19 April 2005 in the proceedings between 1. Stichting Zuid-Hollandse Milieufederatie, 2. Stichting Natuur en Milieu and College voor de Toelating van Bestrijdingsmiddelen; joined party: Bayer CropScience B.V.

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/6

         Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven by judgment of that court of 19 April 2005 in the proceedings between 1. Stichting Zuid-Hollandse Milieufederatie, 2. Stichting Natuur en Milieu and College voor de Toelating van Bestrijdingsmiddelen; joined party: Bayer CropScience B.V.
   (Case C-174/05)
   (2005/C 155/12)
   Language of the case: Dutch
   Reference has been made to the Court of Justice of the European Communities by judgment of the College van Beroep voor het bedrijfsleven (Administrative Court for Trade and Industry) (Netherlands) of 19 April 2005, received at the Court Registry on 19 April 2005, for a preliminary ruling in the proceedings between 1. Stichting Zuid-Hollandse Milieufederatie, 2. Stichting Natuur en Milieu and College voor de Toelating van Bestrijdingsmiddelen (Board for the Authorisation of Pesticides); joined party: Bayer CropScience B.V., on the following question:
   Is Article 2(3) of Decision 2003/199/EC (1) valid?

      (1)  Council Decision of 18 March 2003 concerning the non-inclusion of aldicarb in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing this active substance (OJ L 76 of 22 March 2003, p. 21).


title: Case T-14/04: Action brought on 14 January 2004 by Alto de Casablanca, S.A. against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

text:
20.3.2004              EN                        Official Journal of the European Union                                            C 71/35
Action brought on 14 January 2004 by Alto de Casablanca,                 Decision of the Board of      Appeal rejected
S.A. against the Office for Harmonisation in the Internal                Appeal:
         Market (Trade Marks and Designs) (OHIM)
                                                                         Pleas in law:                 The applicant is represented by a
                                                                                registered patent agent and trade
                          (Case T-14/04)
                                                                                mark attorney, authorised to prac-
                                                                                tice both in the United Kingdom
                          (2004/C 71/62)                                                               and at a European level. The appli-
                                                                                cant claims that, on these
                                                                                grounds, its representative is also
(Language of the case to be determined pursuant to Article 131(2)                                      authorised to represent it before
of the Rules of Procedure-language in which the application was                                        the Court of First Instance of
                         submitted: English)                                                           the European Communities. In
                                                                                support of the substantive part
                                                                                of its application the applicant
                                                                                submits that the mark applied for
                                                                                did          not         contravene
An action against the Office for Harmonisation in the Internal
                                                                                Article 8 (1) (b), of Regulation 40/
Market (Trade Marks and Designs) (OHIM) was brought before
                                                                                94 (1) and the Office was mistaken
the Court of First Instance of the European Communities on
                                                                                to refuse registration.
14 January 2004 by Alto de Casablanca, S.A., Casablance,
(Chile), represented by A. W. Pluckrose, Chartered Patent
Attorney. Bodegas Julián Chivite, S.L. was also a party to the
proceedings before the Board of Appeal.                                  (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                             Community trade mark (OJ 11, p. 1).
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeals of the
      Office for Harmonisation in the Internal Market of
      4 November 2003;
—     direct the Office for Harmonisation in the Internal Market         Action brought on 14 January 2004 by Sandoz GmbH
      to proceed to register Community Mark Application                    against the Commission of the European Communities
      number 568337;
—     order payment of the Applicant’s costs.                                                     (Case T-15/04)
                                                                                (2004/C 71/63)
Pleas in law and main arguments
                                                                                (Language of the case: English)
Applicant for the Com-         ALTO DE CASABLANCA S.A.
munity trade mark:
                                                                         An action against the Commission of the European Communi-
Community trade mark           Word mark ‘VERAMONTE’ for
                                                                         ties was brought before the Court of First Instance of the
sought:                        goods in class 33 (wine)
                                                                         European Communities on 14 January 2004 by Sandoz
                                                                         GmbH, Kundl, (Austria), represented by C. Thomas and
Proprietor of the right to     BODEGAS JULIAN CHIVITE S.L.               N. Dagg, Solicitors, and B. Oosting, lawyer.
the trade mark or sign
asserted by way of oppo-
sition in the opposition
proceedings:                                                             The applicant claims that the Court should:
Trade mark or sign             National marks ‘BEAMONTE’ and             —    annul the Commission decision, notified to the applicant
asserted by way of oppo-       ‘BODEGAS BEAMONTE’ for                         by letter dated 14 November 2003, not to proceed with
sition in the opposition       goods in class 33 (wines, spirits,             the decision for a marketing authorisation of Omnitrop
proceedings:                   liquors) and services in class 39              under Article 10(1)(a)(ii) of Directive 2001/83 and to
                               (goods transportation services)                send the CPMP opinion of 26 June 2003 back to the
                                                                              EMEA;
Decision of the Oppo-          Registration refused
sition Division:                                                         —    order the Commission to pay the applicants costs.


title: Case T-519/10: Judgment of the General Court of 13 June 2012 — Seikoh Giken v OHIM — Seiko Holdings (SG SEIKOH GIKEN) (Community trade mark — Opposition proceedings — International registration — Application for territorial extension of the protection — Figurative mark SG SEIKOH GIKEN — Earlier Community word mark SEIKO — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/19

         Judgment of the General Court of 13 June 2012 — Seikoh Giken v OHIM — Seiko Holdings (SG SEIKOH GIKEN)
   (Case T-519/10) (1)

   (Community trade mark - Opposition proceedings - International registration - Application for territorial extension of the protection - Figurative mark SG SEIKOH GIKEN - Earlier Community word mark SEIKO - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 217/40
   Language of the case: English

      Parties

      Applicant: Kabushiki Kaisha Seikoh Giken (Matsudo-shi Chiba, Japan) (represented by: G. Marín Raigal, P. López Ronda and G. Macias Bonilla, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Seiko Holdings Kabushiki Kaisha (Tokyo, Japan) (represented by: J. Fish, R. Miller, Solicitors and A. Bryson, Barrister)

      Re:

   Application for annulment of the decision of the First Board of Appeal of OHIM of 12 August 2010 (Case R 1553/2009-1), relating to opposition proceedings between Seiko Holdings Kabushiki Kaisha and Kabushiki Kaisha Seikoh Giken.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Kabushiki Kaisha Seikoh Giken to pay the costs.

      (1)  OJ C 13, 15.1.2011.


title: Notice of an open competition

text:
C 235/8        EN                       Official Journal of the European Communities                                   17.8.2000
                                                               III
                                                             (Notices)
                                            COURT OF JUSTICE
                                            NOTICE OF AN OPEN COMPETITION
                                                       (2000/C 235/07)
        The Court of Justice of the European Communities will be publishing in the Official Journal of the European
        Communities C 235 A of 17 August 2000 the following Notice of Open Competition:
        Swedish edition:
        CJ/LA 7 (lawyer-linguists of Swedish mother-tongue)
        To obtain a copy of this Official Journal please apply to the Personal Division of the Court of Justice of the
        European Communities, L-2925 Luxembourg.
        Closing date for application: 28 September 2000.


title: Judgment of the Court of First Instance of 28 September 1999 in Case T-48/97: Erik Dan Frederiksen v European Parliament (Officials - Promotion - Judgments ordering annulment - Enforcement measures - Article 176 of the EC Treaty (now Article 233 EC) - Misuse of powers - Material and non-material damage - Compensation)

text:
20.11.1999             EN                      Official Journal of the European Communities                                      C 333/23
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                               service in Luxembourg at the Chambers of Ernest Arendt,
                                                                          8-10 Rue Mathias Hardt, v Commission of the European
                      of 28 September 1999                                Communities (Agents: Julian Currall, Christine Berardis-Kayser
                                                                          and Bertrand Wägenbaur) — application for an order requiring
in Case T-48/97: Erik Dan Frederiksen v European Parlia-                  the Commission to pay to Mr Neumann an orphan’s pension
                             ment (1)                                     — the Court of First Instance (Second Chamber), composed
                                                                          of: A. Potocki, President, and C.W. Bellamy and M. Vilaras,
(Officials — Promotion — Judgments ordering annulment                     Judges; A. Mair, Administrator, for the Registrar, has given a
— Enforcement measures — Article 176 of the EC Treaty                     judgment on 29 September 1999, in which it:
(now Article 233 EC) — Misuse of powers — Material and
            non-material damage — Compensation)                           1. Annuls the decisions of 20 March 1996 and 29 November
                                                                               1996 by which the Commission refused to grant an orphan’s
                         (1999/C 333/55)                                       pension to Mr Martin Neumann;
                    (Language of the case: French)                        2. Orders the Commission to pay the costs.
In Case T-48/97: Erik Dan Frederiksen, a former official of
the European Parliament, residing at Howald (Luxembourg),                 (1) OJ C 166 of 31.5.1997.
represented by Georges Vandersanden, of the Brussels Bar,
with an address for service in Luxembourg at the offices of
Fiduciaire Myson SARL, 30 Rue de Cessange, v European
Parliament (Agents: Manfred Peter, Joao Sant’Anna and Denis
Waelbroeck) — application for compensation for the material
and non-material damage which the applicant claims to have
suffered as a result of the attitude adopted by the European
Parliament in the course of filling the post of linguistic adviser
(grade LA 3) in the Danish Translation Division following the                 JUDGMENT OF THE COURT OF FIRST INSTANCE
publication of Vacancy Notice No 5809 — the Court of First
Instance (Fifth Chamber), composed of: J.D. Cooke, President,
                                                                                of 28 September 1999
and R. Garcı́a-Valdecasas and P. Lindh, Judges; H. Jung, Regis-
trar, has given a judgment on 28 September 1999, in which it:
                                                                          in Case T-140/97: Michel Hautem v European Investment
1. Orders the Parliament to pay to the applicant damages in the                                        Bank (1)
     sum of BEF 3 000 000 by way of compensation for the
     non-material damage suffered by him;
                                                                          (Officials — Removal from post — Articles 1, 4, 5 and 40
2. Dismisses the remainder of the action;                                 of the Staff Regulations of the European Investment Bank
                                                                          — Manifest error of assessment of the facts — Counterclaim
3. Orders the Parliament to pay the costs.                                    — Rejection of an application for measures of inquiry)
(1) OJ C 142 of 10.5.1997.
                                                                                (1999/C 333/57)
                                                                                (Language of the case: French)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                          In Case T-140/97: Michel Hautem, a servant of the European
                                                                          Investment Bank, residing at Schouweiler (Luxembourg), rep-
                      of 29 September 1999
                                                                          resented initially by Pascale Delvaux de Fenffe and Pierre-Paul
                                                                          Van Gehuchten, of the Brussels Bar, and subsequently by
in Case T-68/97: Martin Neumann and Irmgard Neumann-
                                                                          Michel Karp, of the Luxembourg Bar, with an address for
 Schölles v Commission of the European Communities (1)
                                                                          service in Luxembourg at his Chambers, 84 Grand-Rue, v
                                                                          European Investment Bank (Agents: Giannangelo Marchegiani
                (Officials — Orphan’s pension)
                                                                          and Georges Vandersanden) — application, first, for annul-
                                                                          ment of the decision of the European Investment Bank of
                         (1999/C 333/56)
                                                                          31 January 1997, by which the applicant was removed
                                                                          from his post without loss of his severance grant, and for
                   (Language of the case: German)                         reinstatement of the applicant, and, second, for an order
                                                                          requiring the Bank to compensate the applicant — the Court
In Case T-68197: Martin Neumann and Irmgard Neumann-                      of First Instance (Fifth Chamber), composed of: J.D. Cooke,
Schölles, an official of the Commission of the European                   President, and R. Garcı́a-Valdecasas and P. Lindh, Judges;
Communities, residing in Karlsruhe (Germany), represented by              J. Palacio González, Administrator, for the Registrar, has given
Hans-Josef Rüber, Rechtsanwalt, Cologne, with an address for              a judgment on 28 September 1999, in which it:


title: Action brought on 24 December 1995 by Dr Anthony Goldstein against the Commission of the European Communities (Case T-235/95)

text:
2 . 3 . 96          1 EN |                 Official Journal of the European Communities                                 No C 64/ 19
Action brought on 21 December 1995 by Hamburger                       from a commercial and entrepreneurial point of view, to
Stahlwerke GmbH against the Commission of the European                terminate a commitment when economic conditions are
                          Communities                                 good, rather than during a recession, and that the limited
                       ( Case T-234/95 )                              credit increase made in 1993 — with the express object of
                                                                      selling the applicant company — was therefore not merely
                           96/C 64/37
                                                                      the only economically appropriate measure to take but also
                                                                      the same measure as would have been taken by any private
              (Language of the case: German)                          entrepreneur in a comparable situation. The Commission
                                                                      did not dispute those arguments in its decision.
An action against the Commission of the European
Communities was brought before the Court of First                     Even on the incorrect assumption that the prolongation and
Instance of the European Communities on 21 December                   extension of the credit facility in December 1 993 constituted
1995 by Hamburger Stahlwerke GmbH, of Hamburg                         a grant of aid, it is clear in any event that this could only
( Federal Republic of Germany ), represented by Axel Lohde,           apply as regards an insignificant part.
Rechtsanwalt, Hamburg, with an address for service in
Luxembourg at the Chambers of Lucy Dupong of Messrs
Dupong & Associes, 14a Rue des Bains .
The applicant claims that the Court should :
                                                                      Action brought on 24 December 1995 by Dr Anthony
— annul the decision of the Commission of 31 October
                                                                      Goldstein against the Commission of the European
     1995 concerning the grant of State aid by the Free and                                     Communities
     Hanseatic City of Hamburg to the ECSC steel
     undertaking Hamburger Stahlwerke GmbH, Hamburg                                          ( Case T-235/95 )
     — SG(95 ) D/14318/K(95 ) 2754 final,                                                       ( 96/C 64/38 )
— order the Commission to pay the costs .                                             (Language of the case: English)
Pleas in law and main arguments adduced in support:
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of First
The claim is founded on infringement of essential                     Instance of the European Communities on 24 December
procedural requirements, in the form of the decision having           1995 by Dr Anthony Goldstein, represented by Raymond St
been based on incorrect facts and in the form of a breach of
                                                                      John Murphy of Merriman White, Solicitors, 3 King's
the principle of the right to a fair hearing, on infringement of      Bench Walk , Inner Temple , London .
the ECSC Treaty and of the legal rules applicable to its
implementation, and on an error of assessment.
                                                                      The applicant claims that the Court should:
In particular:
                                                                      — annul the Commission's Decision of 16 October 1995
The loan made in December 1992 increasing the credit                       refusing, inter alia, to reconsider the Decision of
facility by DM 20 million did not constitute aid . The                     20 January 1994 in the light of the factual and legal
applicant considers in that regard that the Free and                       information submitted for its assessment in accordance
Hanseatic City of Hamburg and the Hamburgische                             with the principles laid down by the Treaty as
Landesbank must have taken into account the fact that the                  interpreted by the judgments of the Court of Justice,
total loans made by the Hamburgische Landesbank to the
applicant would be treated, in the event of the bankruptcy of         — order the Commission to pay the costs .
the applicant, as having replaced equity capital . The
Commission's view that the prolongation and extension of
the credit facility in December 1993 also constituted aid,            Pleas in law and main arguments adduced in support:
because the conduct of the Free and Hanseatic City of
Hamburg was not comparable with that of a normal                      On 10 August 1993 the applicant, a Community medical
commercial investor, is incorrect.                                    specialist in rheumatology submitted to the Commission
                                                                      under Article 3 ( 2 ) of Council Regulation No 17 an
By contrast, the Federal Government pointed out in its                application for a finding that the General Medical Council
communication to the Commission of 18 August 1995 that                ( GMC ), a statutory body which regulates the medical
the applicant's subsidiary company in Euskirchen, the                 profession in the territory of the United Kingdom, had
annual production capacity of which amounted to 80 000                infringed Articles 85 and 86 of the EC Treaty . According to
tonnes, had finally been closed down, and that that closure           the applicant's complaint, the GMC :
was to be taken into account as offsetting grants of aid, even
 outside the procedure laid down by Article 95 of the ECSC            — restricts persons holding a Community medical
Treaty, in accordance with the principle of equal treatment.               specialist diploma issued pursuant to Council Directive
In its communication of 7 February 1995 , the Federal                      93/1 6/EC from having their specialist status publicized
 Government further stated that it could only be reasonable,               in the medical register, and
 ---pagebreak--- No C 64/20            EN                 Official Journal of the European Communities                                      2 . 3 . 96
— has rules which inhibit direct access to Community                Pleas in law and main arguments adduced in support:
    medical specialists and inhibit advertising              by
    Community medical specialists to the public.
                                                                    The applicant, a competitor company of Compagnie
                                                                    Nationale Air France in the international air lines market,
At the same time as the complaint the applicant requested
interim measures which the Commission rejected . The                challenges the Commission 's Decision authorizing the
applicant made further requests for interim measures in             second of the three tranches of Air France's capital increase,
several letters to the Commission, with which he provided           approved by the Commission on 27 July 1994, as a form of
                                                                    State aid .
supplementary factual and legal information in support of
his requests. These applications include, inter alia, a request
that the Commission reconsider its first refusal to grant
interim measures in the light of new factual and legal              The 1994 Decision subjects the payment of the second and
information . The Commission rejected the applicant's               third tranches of the capital increase to the fulfilment of 13
further requests for interim measures by letter dated               obligations. The applicant submits that the disputed
16 October 1995 , which constitutes the contested                   Decision has been taken without any consideration of the
decision .                                                          fact that three of the said obligations have not been
                                                                    respected by the French authorities .
The applicant alleges an infringement of Article 190 of the
EC Treaty. Concretely, the contested decision does not              The first obligation is aimed at preventing any transfer of the
contain any statement of reasons for which the part of the          aid to Air Inter by the setting up of a holding company which
applicant's complaint alleging unlawful anti-competitive            would have a majority shareholding in both companies . It is
conduct by the GMC, which prevents direct access by                 pointed out that as part of its strategy the Air France Group,
Community medical specialists to the market in medical              began the procedure which will lead to the merger on
services in the United Kingdom, was rejected in the light of        1 January 1997 of Air Inter with Air France's European
the principles established by the Court of Justice in its           profit centre immediately after the 1994 Decision. In fact,
judgment given on 10 May 1995 in Case C-384/93 Alpine               Air France and Air Inter continued to hold shares in the
Investments, as stated in paragraph 1 of the                        same undertaking and pursued their joint initiatives . In
abovementioned letter .                                             these circumstances Air . France and Air Inter form one
                                                                    economic unit, so that Air Inter must inevitably have
                                                                    benefited from the aid before the adoption of the
                                                                    Decision .
                                                                    Secondly, Air France has ignored the second obligation,
                                                                    aimed at preventing it from applying tariffs below those of
                                                                    its competitors for an equivalent supply on the routes which
Action brought on 27 December 1995 by TAT European                  it operates, by deviating by between 15 % and 74 % relative
Airlines against the Commission of the European                     to other fares on some routes in which Air France takes
                          Communities
                                                                    advantage of a price leadership.
                       ( Case T-236/95 )
                          ( 96/C 64/39
                                                                    The applicant submits that the French authorities have not
                                                                    complied with the obligation aimed at ensuring that the
               (Language of the case: English)                      traffic distribution rules for the Paris airport system should
                                                                    be modified, as soon as possible after the adoption of 1994
                                                                    Decision, in accordance with the Commission's Decision of
An action against the Commission of the European                    27 April 1994 on the opening of the Orly-London link .
Communities was brought before the Court of First
Instance of the European Communities on 27 December
1995 by TAT European Airlines, represented by Antoine               Finally, the French authorities have taken no measure to
Winckler and Romano Subiotto, of Cleary, Gottlieb, Steen            ensure that the work required to adapt the two terminals at
& Hamilton, with an address for service in Luxembourg at            Orly carried out by Aeroports de Paris and a possible
the Chambers of Elvinger & Hoss, 15 Cote d'Eich.                    saturation of one or other of those terminals, do not affect
                                                                    competitive conditions to the detriment of the companies
                                                                    operating there . On the contrary, the circumstances and
The applicant claims that the Court should :                        timing of the decisions relating to this question leave no
                                                                    doubt that the adaptation of the Orly terminal was
— annul Commission Decision C 23/94 of 21 June 1995 ,               organized precisely in such a way as to discriminate against
    concerning the payments of the second tranche of aid in         competitors of the Air France Group .
    favour of Air France approved by Commission Decision
    of 27 July 1994,
— order the Commission to pay the costs .


title: Case C-248/04: Judgment of the Court (First Chamber) of 26 October 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven –Netherlands) — Koninklijke Coöperatie Cosun UA v Minister van Landbouw, Natuur en Voedselkwaliteit (Preliminary reference — Agriculture — Common organisation of the markets — Sugar — Article 26 of Regulation (EEC) No 1785/81 and Article 3 of Regulation (EEC) No 2670/81 — Charge due for C Sugar disposed of on the internal market — Inapplicability of Article 13 of Regulation (EEC) No 1430/79 — No possibility of repayment or remission on grounds of equity — Validity of Regulation (EEC) No 1785/81 and Regulation No 2670/81 — Principles of equality and legal certainty — Equity)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/4

         Judgment of the Court (First Chamber) of 26 October 2006 (reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven –Netherlands) — Koninklijke Coöperatie Cosun UA v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-248/04) (1)

   (Preliminary reference - Agriculture - Common organisation of the markets - Sugar - Article 26 of Regulation (EEC) No 1785/81 and Article 3 of Regulation (EEC) No 2670/81 - Charge due for C Sugar disposed of on the internal market - Inapplicability of Article 13 of Regulation (EEC) No 1430/79 - No possibility of repayment or remission on grounds of equity - Validity of Regulation (EEC) No 1785/81 and Regulation No 2670/81 - Principles of equality and legal certainty - Equity)
   (2006/C 326/09)
   Language of the case: Dutch
   Referring court
   College van Beroep voor het bedrijfsleven
   Parties to the main proceedings

      Applicant: Koninklijke Coöperatie Cosun UA

      Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit
   Re:
   Reference for a preliminary ruling — College van Beroep voor het bedrijfsleven — Validity of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector (OJ 1981 L 177, p. 4) and Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota (OJ 1981 L 262, p. 14) where there is no procedure for the remission of additional levies comparable to that provided for in Article 13 of Council Regulation (EEC) No 1430/79 of 2 July 1979 on the repayment or remission of import or export duties (OJ 1979 L 175, p. 1) — Remission on equitable grounds — Producer of non-quota sugar (C sugar) not involved in a case of fraud established by the national authorities and who, for reasons relating to the investigation, was not immediately informed thereof
   Operative part of the judgment
   Examination of the first question has disclosed nothing capable of affecting the validity of Council Regulation (EEC) No 1785/81 of 30 June 1981 on the common organisation of the markets in the sugar sector, as amended by Council Regulation (EEC) No 305/91 of 4 February 1991, or of Commission Regulation (EEC) No 2670/81 of 14 September 1981 laying down detailed implementing rules in respect of sugar production in excess of the quota, as amended by Commission Regulation (EEC) No 3559/91 of 6 December 1991.

      (1)  OJ C 217, 28.08.2004.


title: Case T-136/07: Action brought on 30 April 2007 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE)

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/39

         Action brought on 30 April 2007 — Colgate-Palmolive v OHIM — CMS Hasche Sigle (VISIBLE WHITE)
   (Case T-136/07)
   (2007/C 140/64)
   Language in which the application was lodged: English
   Parties

      Applicant: Colgate-Palmolive Co. (New York, United States) (represented by: M. Zintler, H. Harmeling and K.-U. Plath, lawyers)

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

      Other party to the proceedings before the Board of Appeal: CMS Hasche Sigle (Cologne, Germany)
   Form of order sought

               —

               The decision of the Fourth Board of Appeal dated 15 February 2007 shall be annulled;

               —

               the Court shall confirm the decision of the Cancellation Division and declare that the Community trade mark No 802 793 ‘VISIBLE WHITE’ remains registered;

               —

               the applicant receives an award of costs in respect of the request for a declaration of invalidity, a reversal of the award of the costs made in the Board's decision, and an award of costs in respect of this application.

         Pleas in law and main arguments

      Registered Community trade mark subject of the application for a declaration of invalidity: The word mark ‘VISIBLE WHITE’ for goods in class 3 — Community trade mark No 802 793

      Proprietor of the Community trade mark: The applicant

      Party requesting the declaration of invalidity of the Community trade mark: CMS Hasche Sigle

      Decision of the Cancellation Division: Rejection of the request for a declaration of invalidity

      Decision of the Board of Appeal: Annulment of the Cancellation Division's decision and declaration of invalidity of the Community trade mark

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Council Regulation No 40/94 as the Board of Appeal wrongly considered both the element ‘VISIBLE’ and the element ‘WHITE’ as descriptive in relation to ‘toothpaste’ as well as ‘mouthwash’ and considered the combination as a whole descriptive and devoid of distinctive character.


title: Case C-225/06 P: Appeal brought on  16 May 2006  by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on  15 March 2006  in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/22

         Appeal brought on 16 May 2006 by Athinaïki Oikogeniaki Artopoiia AVEE against the judgement of the Court of First Instance (Third Chamber) delivered on 15 March 2006 in Case T-35/04: Athinaïki Oikogeniaki Artopoiia AVEE v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM), Ferrero OHG mbh
   (Case C-225/06 P)
   (2006/C 178/36)
   Language of the case: English
   Parties

      Appellant: Athinaïki Oikogeniaki Artopoiia AVEE (represented by: A. Tsavdaridis, Attorney at Law)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Ferrero OHG mbh
   Form of order sought
   The applicant claim that the Court should:

               —

               Annul the contested decision of the Court of First Instance

               —

               Reject definitely and in its entirety the opposition to registration of the mark applied

               —

               Order the Office and intervener to pay the costs, including those incurred in opposition proceedings and before the Board of Appeal and the Court of First Instance.

         Pleas in law and main arguments
   The appellant maintains that the Court of First Instance erred in interpreting article 8 (1) (b) of Regulation (EC) No 40/94 (1) because:
   The Court of First Instance ignored the fact that the appreciation of the likelihood of confusion depends on numerous elements, mentioned in the seventh recital of the preamble to Council Regulation (EC) No 41/94 (2) and, in particular, on the recognition of the trade mark on the market and not only on the degree of similarity between the trade mark and the sign and between the goods and services identified.
   The earlier trade mark ‘Ferrero’ is not being used to identify products sold on the German market. As a result there is no likelihood of confusion for the average German consumer who does not associate the trademark ‘Ferrero’ with its products, whatever the degree of similarity between the two signs.
   The Court of First Instance also ignored the fact that, according to the settled case-law of the Court of Justice, the likelihood of confusion on the part of the public must be appreciated globally, taking into account all factors relevant to the circumstances of the case. Furthermore, a global assessment of the likelihood of confusion implies some interdependence between the relevant factors. The appellant submits that, had the Court of First Instance taken into account the interdependence of the relevant factors, it would have concluded that there is little risk of confusion.

      (1)  OJ L 11, p. 1-36.

      (2)  OJ L 209, p. 18-19.


title: Case C-273/17: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 10 May 2017 — Sol Gas Primari Srl v Autorità per l’energia elettrica e per il gas e il sistema idrico

text:
               18.9.2017

               EN

               Official Journal of the European Union

               C 309/19

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per la Lombardia (Italy) lodged on 10 May 2017 — Sol Gas Primari Srl v Autorità per l’energia elettrica e per il gas e il sistema idrico
   (Case C-273/17)
   (2017/C 309/25)
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per la Lombardia

      Parties to the main proceedings

      Applicant: Sol Gas Primari Srl

      Defendant: Autorità per l’energia elettrica e per il gas e il sistema idrico

      Questions referred

               1.

               Must the provisions of Directive 2009/72/EC, (1) in particular Articles 3(5) and (6) and 28, be interpreted as meaning that a system created and operated by a private person, to which a limited number of generation and consumption units are connected, and which in turn is connected to the public network, necessarily constitutes an electricity network, and thus a ‘distribution system’ for the purposes of that directive, without it being possible to exclude from that classification private systems with those characteristics created before the entry into force of that directive and set up originally for the purpose of self-generation?

               2.

               If the preceding question is answered in the affirmative, is the only possibility offered by the directive of taking advantage of the particular features of a private electricity network that of including it in the category of closed distribution systems referred to in Article 28 of the directive, or is the national legislature permitted to identify another category of distribution systems subject to a simplified set of rules which are different from those laid down in respect of closed distribution systems?

               3.

               Independently of the previous questions, must the directive be interpreted as meaning that the obligation to connect third parties is applicable in all cases to the closed distribution systems referred in Article 28?

               4.

               Independently of the previous questions, does the classification of a private electricity network as a closed distribution system within the meaning of Article 28 of Directive 2009/72/EC, permits the national legislature to allow, in favour of such a system, only the derogations from the general scheme for distribution systems expressly referred to in Articles 28 and 26(4) of the directive, or is the Member State — in the light of what is stated in recitals 29 and 30 of the directive — permitted or required to provide for other exceptions to the application of the general rules governing distribution systems in such a way as to ensure attainment of the objectives set out in those recitals?

               5.

               In the event that the Court of Justice considers that the Member State may or must lay down rules which take account of the specific nature of closed distribution systems, do the provisions of Directive 2009/72/EC — in particular recitals 29 and 30 and Articles 15(7), 37(6)(b) and 26(4) — preclude national legislation, such as that under consideration in the present case, which subjects closed distribution systems to rules on dispatching and unbundling that are very similar to those imposed in respect of public networks and which, as regards general electricity charges, provides that payment of those charges should in part also be commensurate with the energy consumed within the closed system?

      (1)  Directive 2009/72/EC of the European Parliament and of the Council of 13 July 2009 concerning common rules for the internal market in electricity and repealing Directive 2003/54/EC (OJ 2009 L 211, p. 55).


24.1.2004              EN                         Official Journal of the European Union                                         C 21/29
Pleas in law and main arguments                                                  Removal from the register of Case C-135/02 (1)
                                                                                (2004/C 21/54)
Various provisions adopted by several German Länder (con-
forming to the Federal Model Form of a Furnace Regulation of
24 February 1995) are, in the Commission’s view, incompat-                By order of 30 September 2003 the President of the Court of
ible with Directive 90/396/EEC on gas-fuelled appliances.                 Justice of the European Communities ordered the removal
Those provisions relate to:                                               from the register of Case C-135/02: Commission of the
                                                                          European Communities v Federal Republic of Germany.
—      gas boilers with a thermal output of more than 50 kw,
       which may be installed only in separate rooms;
                                                                          (1) OJ C 131 of 1.6.2002.
—      certain gas boilers which must be equipped with a
       safety device which prevents the concentration of carbon
       monoxide in the air from exceeding 30 ppm; and
—      gas boilers which must be equipped with a device which,
                                                                                Removal from the register of Case C-142/02 (1)
       in certain circumstances, closes off the gas supply.
                                                                                (2004/C 21/55)
This gives rise to an impediment to the placing on the
market in the Länder concerned of appliances satisfying the
requirements of the Directive because, in those Länder, matters           By order of 15 September 2003 the President of the Court of
already governed by the Directive, such as the installation of            Justice of the European Communities ordered the removal
appliances only in rooms which do not constitute living space,            from the register of Case C-142/02: Commission of the
protection from the release of unburned gas, risk of explosion,           European Communities v Grand Duchy of Luxembourg.
etc., are subject to additional regulation by national provisions.
                                                                          (1) OJ C 131 of 1.6.2002.
The Federal Republic of Germany takes the view that, having
regard to the public safety of persons and the protection of life
and health of persons against general risks posed by fuel-
burning installations, the Member States are competent to
increase as appropriate the safety levels of such fuel-burning                   Removal from the register of Case C-228/02 (1)
installations on the basis of national building regulations. The
Commission rejects that line of argument, pointing out that,                                      (2004/C 21/56)
in accordance with the ‘New Approach’ concept, the Directive
contains a comprehensive set of rules on the matters covered
by it so that the adoption of additional national provisions              By order of 17 September 2003 the President of the Second
governing that area no longer comes into question.                        Chamber of the Court of Justice of the European Communities
                                                                          ordered the removal from the register of Case C-228/02:
(1) OJ 1990 L 196, p. 15.                                                 Commission of the European Communities v Grand Duchy of
                                                                          Luxembourg.
                                                                          (1) OJ C 180 of 27.7.2002.
Removal from the register of Joined Cases C-157/01 P
                        and C-169/01 P (1)
                                                                                Removal from the register of Case C-229/02 (1)
                          (2004/C 21/53)                                                          (2004/C 21/57)
By order of 17 July 2003 the President of the Court of Justice            By order of 18 September 2003 the President of the Court of
of the European Communities ordered the removal from the                  Justice of the European Communities ordered the removal
register of Joined Cases C-157/01 P and C-169/01 P: Federal               from the register of Case C-229/02 (Reference for a preliminary
Republic of Germany v RAG Aktiengesellschaft and UK Coal                  ruling by the Bundesvergabeamt): Tenderer: debis/AC and
v Commission of the European Communities.                                 Others v Hauptverband der österreichischen Sozialversi-
                                                                          cherungsträger.
(1) OJ C 200 of 14.7.2001, OJ C 168 of 30.6.2001.
                                                                          (1) OJ C 219 of 14.9.2002.


title: Case T-19/06: Action brought on  20 January 2006  — Mindo v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/49

         Action brought on 20 January 2006 — Mindo v Commission
   (Case T-19/06)
   (2006/C 60/92)
   Language of the case: English
   Parties

      Applicant: Mindo Srl (Rome, Italy) [represented by: J. Folguera Crespo, P. Vidal Martínez, lawyers]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Declare Article 1.1(a) of Commission Decision C(2005) 4012 final, of 20 October 2005, relating to a proceeding under Article 81(1) EC (Case COMP/C.38.281/B.2 — Raw Tobacco Italy) partially null and void to the extent that it refers to a longer duration of the infringement (which is deemed to be terminated on 19 February 2002 instead of 15 January 2002, at the latest);

               —

               declare Article 2(b) of the Contested Decision null and void to the extend that MINDO should have been granted full immunity from fines under the Leniency Notice, or in the alternative, the amount of the fine imposed on MINDO and on a joint and several basis to ‘Alliance One International’ should be substantially reduced;

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   By the contested Decision the Commission found that several companies, including the applicant, infringed Article 81(1) EC by way of agreements and/or concerted practices in the Italian raw tobacco sector. The applicant requests the partial annulment of this Decision invoking, firstly, an alleged infringement of its legitimate expectations regarding the application of the Leniency Notice. The applicant contests the Commission's rejections of its application to benefit from immunity on the grounds that another company, and not the applicant, was entitled to immunity. According to the applicant, that other company did not comply with the requirements of the Leniency Notice whereas the Commission failed to prove that the applicant did not comply with the same requirements.
   In the alternative, the applicant contends that its participation to the infringements ceased on 15 January 2002 at the latest, rather than on 19 February 2002, and that the fine imposed on it should be reduced accordingly on this basis.
   Further, the applicant considers that the Commission violated the principles of proportionality and legal certainty as well as the duty to state reasons regarding the assessment of the scope of the applicant's restrictive conduct. According to the applicant, the Commission failed to take into account that it participated in agreements regarding the purchase price and the quantities of surplus production only in 1998 and 1999 and that it did so in the context of interprofessional agreements authorised under Italian legislation.
   The applicant also invokes an infringement of the rights of defence as well as of the principles of proportionality and legitimate expectations in the calculation of the basic amount of the fine. In this context the applicant alleges that the basic amount of the fine materially exceeds the total value of the products which were affected by the cartel practices; that the Commission has erred in the assessment of the two potential effects of the restrictive practices cited in the contested Decision; that those two potential effects are new to the contested Decision and had not been stated in the Statement of Objections; and that the Commission mistakenly applied a multiplying factor in order to calculate the basic amount of the fine without taking into consideration that at the time of the contested Decision's adoption the applicant was not part of any large multinational undertaking.
   Further, the applicant invokes an infringement of the duty to state reasons and the principles of legal certainty and of legitimate expectations in connection with the Commission's alleged failure to take certain mitigating factors into account, notably the early termination of the infringing conduct and the minimal effects of the restrictive practices attributed to the applicant.
   Finally, the applicant also invokes an infringement of the principles of proportionality and of legitimate expectations as well as the duty to state reasons in the application of section 5(b) of the Commission's guidelines, regarding the specific economic and social context in which the restrictive practices took place. It also alleges that the Commission failed to take into consideration, when setting the amount of the fine, its extremely fragile economic situation and its ability to pay.


title: Case T-526/09: Action brought on 28 December 2009 — PAKI Logistics GmbH v OHIM

text:
               27.3.2010

               EN

               Official Journal of the European Union

               C 80/31

         Action brought on 28 December 2009 — PAKI Logistics GmbH v OHIM
   (Case T-526/09)
   2010/C 80/53
   Language in which the application was lodged: German

      Parties

      Applicant: PAKI Logistics GmbH (Ennepetal, Germany) (represented by M. Bergermann, P. Mes, C. Graf von der Groeben, G. Rother, J. Bühling, A. Verhauwen, J. Künzel, D. Jestaedt and J. Vogtmeier, lawyers)

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

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 October 2009 (R 180/2007-1);

               —

               order the defendant to pay the costs of the proceedings, including those incurred in connection with the appeal.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘PAKI’ for goods and services in Classes 6, 20, 37 and 39 (Application No 4 790 895)

      Decision of the Examiner: Registration refused

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Error of law in the application of Article 7(1)(f) of Regulation No 207/2009 (1) in conjunction with Article 7(2) of the same Regulation, since the mark applied for is not contrary to accepted principles of morality

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


C 55/18                EN                      Official Journal of the European Union                                        8.3.2003
        Removal from the register of Case C-359/99 ( 1)                        Removal from the register of Case C-486/99 ( 1)
                         (2003/C 55/34)                                                         (2003/C 55/37)
By order of 19 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-359/99 (Reference for a preliminary        from the register of Case C-486/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Autogolf Srl v Ministero          ruling by the Tribunale di Brescia): Flos SpA and Others v
delle Finanze.                                                         Ministero delle Finanze.
( 1) OJ C 352 of 4.12.1999.                                            (1 ) OJ C 79 of 18.03.2000.
        Removal from the register of Case C-360/99 ( 1)                        Removal from the register of Case C-487/99 ( 1)
                         (2003/C 55/35)                                                         (2003/C 55/38)
By order of 15 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-360/99 (Reference for a preliminary        from the register of Case C-487/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Union Factor SpA and              ruling by the Tribunale di Brescia): Petra SpA v Ministero delle
Others v Ministero delle Finanze.                                      Finanze.
( 1) OJ C 352 of 4.12.1999.                                            (1 ) OJ C 79 of 18.03.2000.
        Removal from the register of Case C-485/99 ( 1)                        Removal from the register of Case C-488/99 ( 1)
                         (2003/C 55/36)                                                         (2003/C 55/39)
By order of 19 November 2002 the President of the Court of             By order of 19 November 2002 the President of the Court of
Justice of the European Communities ordered the removal                Justice of the European Communities ordered the removal
from the register of Case C-485/99 (Reference for a preliminary        from the register of Case C-488/99 (Reference for a preliminary
ruling by the Tribunale di Brescia): Gottinghen SpA and Others         ruling by the Tribunale di Brescia): Supercar Srl v Ministero
v Ministero delle Finanze.                                             delle Finanze.
( 1) OJ C 79 of 18.03.2000.                                            (1 ) OJ C 79 of 18.03.2000.


title: Case C-113/02: Action brought on 27 March 2002 by the Commission of the European Communities against the Kingdom of the Netherlands

text:
C 144/16               EN                     Official Journal of the European Communities                                       15.6.2002
If the answer to question 1 and/or question 2 is in the                  6.    If Article 3, first paragraph, of Directive 92/51/EEC
affirmative:                                                                   applies to professional teaching qualifications awarded
                                                                               after only two years’ higher education and training in
3.    Does Council Directive 89/48/EEC of 21 December 1988                     Austria:
      on a general system for the recognition of higher-
      education diplomas awarded on completion of pro-
      fessional education and training of at least three years’                In the event of failure to transpose Directive 92/51/EEC
      duration, or Council Directive 92/51/EEC of 18 June                      within the period prescribed in Article 17 thereof, does
      1992 on a second general system for the recognition                      Article 3, first paragraph, under (a), of that directive give
      of professional education and training to supplement                     rise to an entitlement to have a teaching qualification
      Directive 89/48/EEC preclude national legislation (in this               awarded in a Member State treated in the same way as
      instance, the Verordnung des baden-württembergischen                     the corresponding qualification for a teaching career in
      Kultusministeriums zur Umsetzung der Richtlinie 89/48/                   the host Member State without the host Member State
      EWG des Rates vom 21. Dezember 1988 über eine                            being permitted — where the particular conditions are
      allgemeine Regelung zur Anerkennung der Hochschuldi-                     fulfilled — first of all to require compensating measures
      plome, die eine mindestens dreijährige Berufsausbildung                  to be applied under Article 4 of the directive?
      abschließen, für Lehrerberufe vom 15.08.1996 (Baden-
      Württemberg Ministry of Education regulation for the
      teaching profession of 15.08.1996 transposing Council
      Directive 89/48/EEC of 21 December 1988 on a general               (1) OJ L 019 of 24.1.1989, p. 16.
                                                                         (2) OJ L 209 of 24.7.1992, p. 25.
      system for the recognition of higher-education diplomas
      awarded on completion of professional education and
      training of at least three years’ duration, ‘EU-EWR-
      LehrerVO’) which makes recognition of a professional
      teaching qualification awarded or recognised in another
      Member State of the European Union
      a)    conditional, without exception, on completion of
            higher education and training of at least three years’
            duration,
      b)    requires the qualification to comprise at least two of       Action brought on 27 March 2002 by the Commission of
            the subjects stipulated for the teaching profession in       the European Communities against the Kingdom of the
            question in Baden-Württemberg?                                                           Netherlands
If the answer to question 1 is in the affirmative:
4.    Is the second subparagraph of Article 1(a) of Directive                                     (Case C-113/02)
      89/48/EEC to be interpreted as meaning that the qualifi-
      cation for the profession of primary-school teacher
      awarded on the basis of the former two-year system of                                       (2002/C 144/27)
      education and training in Austria is to be treated in the
      same way as a diploma within the meaning of the first
      subparagraph of Article 1(a) of Directive 89/48/EEC
      where the competent authority in Austria confirms that
      the examination certificate awarded following education            An action against the Kingdom of the Netherlands was brought
      and training of two years’ duration is recognised, for the         before the Court of Justice of the European Communities
      purposes of the application of the second subparagraph             on 27 March 2002 by the Commission of the European
      of Article 1(a) of Directive 89/48/EEC, as being of a              Communities, represented by H. van Lier, acting as Agent,
      level equivalent to the diploma (examination certificate)          assisted by M. van Der Woude and R. Wezenbeek-Geuke,
      currently awarded after three years’ study and confers the         lawyers.
      same rights in Austria in respect of the taking up or
      pursuit of the profession of primary-school teacher?
If the answer to question 2 is in the affirmative:                       The applicant claims that the Court should:
5.    Is Article 3, second paragraph, of Directive 92/51/EEC
      to be interpreted, with regard to the recognition of               —     declare that the Kingdom of the Netherlands has failed
      professional teaching qualifications, as meaning that the                to fulfil its obligations under Article 7(4) of Council
      prerequisite of a ‘post-secondary course of more than                    Regulation (EEC) No 259/93 (1) of 1 February 1993 on
      four years’ duration,’ specified in that provision, only                 the supervision and control of shipments of waste
      encompasses the prescribed higher education and training                 within, into and out of the European Community and
      (higher-education studies) or as meaning that the pro-                   Articles 1(e) and (f) and 7(1) of Council Directive 75/442/
      bationary period of teaching practice (probationary ser-                 EEC (2) of 15 July 1975 on waste, as amended by Council
      vice) counts towards the ‘post-secondary course of more                  Directive 91/156/EEC (3) of 18 March 1991, and under
      than four years’ duration’?                                              Article 82 EC in conjunction with Article 86 EC;
 ---pagebreak--- 15.6.2002              EN                       Official Journal of the European Communities                                     C 144/17
—     order the Kingdom of the Netherlands to pay the costs.                    foreign competitors. Those rules result in a situation
                                                                                whereby more waste is regarded as destined for disposal,
                                                                                so that more waste is presented to AVR Chemie for
                                                                                incineration.
                                                                           (1) OJ 1993 L 30, p. 1.
                                                                           (2) OJ 1975 L 194, p. 39.
                                                                           (3) OJ 1991 L 78, p. 32.
Pleas in law and main arguments
—     In cases in which 20 % of waste in the Netherlands can
      be re-used and, in the country of destination, a smaller
      proportion of the waste can be recovered, objections are             Reference for a preliminary ruling by the Oberlandesge-
      systematically raised. That possibility is not provided for          richt Innsbruck by order of that Court of 25 March 2002
      either in Regulation (EEC) No 259/93 or in Directive 75/             in the proceedings between Erich Gasser Gesellschaft m.
      442/EEC. The Netherlands treats the extent of the recov-                                  b. H. and MISAT s. r. l.
      ery which can be achieved by means of the processing
      capacity in the Netherlands as a subjective criterion for
      the current application of the fifth indent of Article 7(4)                                   (Case C-116/02)
      of Regulation (EEC) No 259/93. It is not apparent from
      any of the provisions of Regulation (EEC) No 259/93 that
      this constitutes the objective or scope of that regulation.                                   (2002/C 144/28)
      On the contrary, the fifth indent of Article 7(4) provides
      that the Member States are to carry out an individual test
      in respect of each request for export, in the course of
      which they are to consider in an objective manner — that             Reference has been made to the Court of Justice of the
      is to say, without regard to their own market situation —            European Communities by order of the Oberlandesgericht
      the characteristics of that individual request.                      Innsbruck (Higher Regional Court, Innsbruck) of 25 March
                                                                           2002, received at the Court Registry on 2 April 2002, for a
                                                                           preliminary ruling in the proceedings between Erich Gasser
                                                                           Gesellschaft m. b. H. and MISAT s. r. l. on the following
—     The Netherlands applies a criterion consisting of a                  questions:
      requirement for the calorific value of incineration of the
      waste coupled with its chlorine content, and on that basis           1.   May a court which refers questions to the Court of Justice
      draws the dividing line between recovery, with the main                   for a preliminary ruling do so purely on the basis of a
      use being fuel from hazardous waste, and definitive                       party’s (unrefuted) submissions, whether they have been
      disposal of hazardous waste. However, in accordance                       contested or not contested (on good grounds), or is it
      with the provisions of the regulation and of the directive,               first required to clarify those questions as regards the
      the question whether waste is to be regarded as destined                  facts by the taking of appropriate evidence (and if so, to
      for disposal or as destined for recovery depends chiefly                  what extent)?
      on the way in which the waste is processed. That is the
      position, in particular, as regards the drawing of a                 2.   May a court other than the court first seised, within the
      distinction between waste for disposal, in terms of                       meaning of the first paragraph of Article 21 of the
      point D10 in Annex II A of the directive, and waste for                   Brussels Convention on Jurisdiction and the Enforcement
      recovery, in terms of point R9 in Annex II B. For that                    of Judgments in Civil and Commercial Matters [‘the
      reason, it is necessary to fulfil the criteria connected with             Brussels Convention’], review the jurisdiction of the court
      the processing installation or the relevant use; and the                  first seised if the second court has exclusive jurisdiction
      type and nature of contamination of the waste itself are                  pursuant to an agreement conferring jurisdiction under
      not relevant criteria for distinguishing between waste                    Article 17 of the Brussels Convention, or must the agreed
      destined for disposal and waste destined for recovery.                    second court proceed in accordance with Article 21 of
                                                                                the Brussels Convention notwithstanding the agreement
                                                                                conferring jurisdiction?
—     The Commission considers that the rules contained in                 3.   Can the fact that court proceedings in a Contracting State
      Chapter 8.3 of Part I and Chapter 18 of Part II of the                    take an unjustifiably long time (for reasons largely
      Multi-annual Plan concerning hazardous waste for the                      unconnected with the conduct of the parties), so that
      period 1997-2007 are inconsistent with the obligations                    material detriment may be caused to one party, have the
      imposed on the Netherlands by Article 86 EC, inasmuch                     consequence that the court other than the court first
      as the effect of those rules is to protect and strengthen                 seised, within the meaning of Article 21, is not allowed
      the position of AVR Chemie to the detriment of its                        to proceed in accordance with that provision?