title: Case C-564/07: Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/12

         Action brought on 21 December 2007 — Commission of the European Communities v Republic of Austria
   (Case C-564/07)
   (2008/C 79/22)
   Language of the case: German
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and H. Krämer, acting as Agents)

      Defendant: Republic of Austria
   Form of order sought

               —

               declare that the Republic of Austria has infringed its obligations under Article 49 EC, by

                           —

                           requiring all patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to first enrol in the special Austrian registers, insofar as registration is conditional on taking out professional liability insurance,

                           —

                           making patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria subject to disciplinary supervision by the Austrian authorities, even as regards sanctions for conduct other than the serious breach of professional duties,

                           —

                           making any provision of service by a patent lawyer lawfully established in another Member State wishing to provide services temporarily in Austria conditional on taking out professional liability insurance,

                           —

                           requiring patent lawyers lawfully established in another Member State temporarily wishing to provide services temporarily in Austria to instruct a locally registered domestic lawyer or to appoint a person residing in Austria as process agent.

               —

               order Austria to pay the costs.

         Pleas in law and main arguments
   According to consistent case-law of the Court of Justice, Article 49 EC requires not only the elimination of any kind of discrimination on the grounds of nationality against a service provider established in another Member State, but also the removal of all restrictions — even if they apply uniformly to domestic service providers and service providers who are nationals of other Member States — which are liable to prohibit, impede or render less attractive the activities of service providers established in another Member State in which they legally provide equivalent services.
   According to the Commission, the Austrian legal provisions regarding patent lawyers represent a restriction on the freedom to provide services within the meaning of Article 49 EC, by requiring patent lawyers lawfully established in another Member State wishing to provide services temporarily in Austria to take out professional liability insurance, to enrol in the Austrian register, to submit to the disciplinary supervision of the Austrian Patent Lawyers Association and, if they wish to represent clients, to instruct a locally registered domestic lawyer.
   Those requirements are liable to impede the temporary provision of services in Austria by a patent lawyer lawfully established in another Member State, or at least to render the provision of such services less attractive. That is to say that compliance with the legal provisions of both the Member State of establishment and the Member State in which the service is provided places an additional financial burden on the service provider, since he has to familiarise himself with the provisions applicable in the Member State in which the service is provided; in addition, he is subject to two regulatory systems, without the Member State in which the service is provided taking into consideration the rules to which he is already subject in the Member State of origin. Moreover, the rules in issue are also likely to discourage consumers from enlisting the services of a service provider established in another Member State, as this generates additional costs that are not incurred if the service provider is Austrian.
   National provisions that prohibit, impede or render less attractive the exercise of the fundamental freedoms guaranteed by the Treaty are compatible with the Treaty only if, first, they are justified by imperative requirements in the public interest, second, they are applied without discrimination, third, they are suitable for achieving the objective which they pursue, and, fourth, they do not go beyond what is strictly necessary to attain that objective. The recognition of interests as imperative requirements in the public interest is limited to those interests that are not already protected by provisions to which the service provider is subject in his Member State of establishment.
   The Commission is of the view that the restrictions in dispute are not allowed as a derogation expressly provided for by the Treaty or justified, in accordance with the case-law of the Court of Justice, by overriding reasons relating to the public interest. The requirements in question to which patent lawyers established in other Member States are subject go beyond that which is necessary to achieve the objectives of consumer protection and the proper conduct of proceedings.


title: Case C-25/17: Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 January 2017 — Tietosuojavaltuutettu v Jehovah’s Witnesses — Religious Community

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/19

         Request for a preliminary ruling from the Korkein hallinto-oikeus (Finland) lodged on 19 January 2017 — Tietosuojavaltuutettu v Jehovah’s Witnesses — Religious Community
   (Case C-25/17)
   (2017/C 086/23)
   Language of the case: Finnish

      Referring court

   Korkein hallinto-oikeus

      Parties to the main proceedings

      Applicant: Tietosuojavaltuutettu

      Defendant: Jehovah’s Witnesses — Religious Community

      Questions referred

               1.

               Are the exceptions to the material scope laid down in Article 3(2), second subparagraph, of the Data Protection Directive (1) to be interpreted as meaning that the collection and other processing of personal data carried out by the members of a religious community in connection with door-to-door evangelical work fall outside the scope of that directive? When assessing the applicability of the directive, what significance is to be given to the fact that, on one hand, the evangelical work in connection with which the data is collected is organised by a religious community and its congregations and, on the other, that that data collection is part of the personal religious practice of members of a religious community?

               2.

               Is the definition of personal data filing system in Article 2(c) of the Data Protection Directive, taking account of recitals 26 and 27 thereto, to be interpreted as meaning that, taken as a whole, the manual collection of personal data (name and address and other information and characteristics of a person) carried out in connection with door to door evangelical work

                           (a)

                           does not constitute a personal data filing system on the ground that card indexes, directories or other comparable search methods are not expressly included in the definition laid down in the Finnish Law on personal data? or

                           (b)

                           constitutes such a data filing system on the ground that, taking account of the intended use, the information required for later use may in fact be extracted from those data easily and at reasonable cost as required by the Finnish Law on personal data?

               3.

               Is the phrase ‘alone or jointly with others determines the purposes and means of the processing of personal data’ in Article 2(d) of the Data Protection Directive to be interpreted as meaning that a religious community which organises the activity in connection with which personal data is collected (inter alia by dividing up the areas in which the activity is carried out among members involved in evangelical work, supervising the work of those members and maintaining a list of individuals who do not wish to receive visits from evangelists) may be regarded as a controller, on account of the processing of personal data carried out by its members, even though the religious community claims that only the individual members carrying out evangelical work have access to the data collected.

               4.

               Is Article 2(d) to be interpreted as meaning that in order for a religious community to be considered a controller other specific actions are required, such as giving instructions or written guidelines governing the collection of data, or is it sufficient that that religious community is regarded as having de facto control of the activities of its members?
               It is necessary to answer Questions 3 and 4 only if, on the basis of the answers to Questions 1 and 2, the directive is applicable. It is necessary to answer Question 4 only if, on the basis of Question 3, the application of Article 2(d) of the Directive to the Religious Community cannot be excluded.

      (1)  Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ 1995 L 281, p. 31).


title: Case C-237/14 P: Order of the Court (Sixth Chamber) of 6 September 2016 — Lidl Stiftung & Co. KG v European Union Intellectual Property Office (Appeal — EU trade mark — Article 181 of the Rules of Procedure of the Court of Justice — Appeal manifestly inadmissible or manifestly unfounded)

text:
               5.12.2016

               EN

               Official Journal of the European Union

               C 454/6

      Order of the Court (Sixth Chamber) of 6 September 2016 — Lidl Stiftung & Co. KG v European Union Intellectual Property Office
      (Case C-237/14 P) (1)

      ((Appeal - EU trade mark - Article 181 of the Rules of Procedure of the Court of Justice - Appeal manifestly inadmissible or manifestly unfounded))
      (2016/C 454/12)
      Language of the case: English

         Parties

         Appellant: Lidl Stiftung & Co. KG (represented by: M. Wolter, M. Kefferpütz and A.K. Marx, Rechtsanwälte)

         Other party to the proceedings: European Union Intellectual Property Office (represented by: L. Rampini, acting as Agent)

         Operative part of the order

                  1.

                  The appeal is dismissed.

                  2.

                  Lidl Stiftung & Co. KG shall pay the costs.

         (1)  OJ C 282, 25.8.2014.


title: Case T-287/07: Action brought on 25 July 2007 — cApStAn v Commission

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/16

         Action brought on 25 July 2007 — cApStAn v Commission
   (Case T-287/07)
   (2007/C 223/26)
   Language of the case: French
   Parties

      Applicant: cApStAn Sprl (Brussels, Belgium) (represented by: J. Bublot, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment of the Commission's rejection decision.

         Pleas in law and main arguments
   By this action, the applicant seeks the annulment of the Commission's decision of 22 May 2007 rejecting its tender submitted in connection with the tendering procedure ‘Post-editing services PER 2007’ (1) on account of an absence of evidence of relevant experience.
   In support of its application for annulment of the contested decision, the applicant claims that the Commission erred manifestly in its reading of its application because the call for tenders related precisely to its area of activity, which the applicant claims to have stated in its tender. The applicant also states that it had already secured a public contract in that area from the Commission and that the services provided on that occasion were never called in question.
   In addition, the applicant claims that the contested decision is based on manifestly incorrect reasons and that that error amounts to a lack of reasoning.

      (1)  OJ 2007/S 21-023949.


title: Case T-519/15: Action brought on 4 September 2015 — myToys.de v OHIM — Laboratorios Indas (myBaby)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/42

         Action brought on 4 September 2015 — myToys.de v OHIM — Laboratorios Indas (myBaby)
   (Case T-519/15)
   (2015/C 363/52)
   Language in which the application was lodged: English

      Parties

      Applicant: myToys.de GmbH (Berlin, Germany) (represented by: C. Hauss-Löhde and M. Mette, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Laboratorios Indas, SA (Pozuelo de Alarcon, Spain)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word elements ‘myBaby’ — Application for registration No 10 846 426

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 17 June 2015 in Case R 1002/2014-2

      Form of order sought

   The applicant claims that the Court should:

               —

               set aside the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 17 June 2015 in the appeal proceedings R 1002/2014-2;

               —

               dismiss the opposition in its entirety;

               —

               revoke the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 21 May 2015 in appeal proceedings R 1137/2014-2;

               —

               order OHIM to pay the costs of the proceedings.

      Pleas in law

               —

               Infringement of Article 42(2) of Regulation No 207/2009;

               —

               Infringement of Article 15(1)(a) of Regulation No 207/2009;

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 7(1) of Regulation No 216/96 of 5 February 1996, laying down the rules of procedure of the Boards of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs).


title: Judgment of the Court (First Chamber) of 10 May 2001 in Case C-444/99: Commission of the European Communities v Italian Republic (Failure by a Member State to fulfil its obligations — Directive 92/106/EEC — Failure to transpose within the prescribed period)

text:
C 200/16                 EN                       Official Journal of the European Communities                                          14.7.2001
     —      was resident in that State but was not carrying on an                             JUDGMENT OF THE COURT
            occupational activity and was receiving a pension there
            from another Member State in his capacity as a retired
            civil servant,                                                                              (First Chamber)
     —      while being subject in his State of residence to laws                                       of 10 May 2001
            relating to the branches of social security referred to in the
            Regulation.
                                                                             in Case C-444/99: Commission of the European Communi-
     However, Council Regulation (EEC) No 1612/68 of 15 Octo-                                      ties v Italian Republic (1)
     ber 1968 on freedom of movement for workers within the
     Community does not apply in principle to a person who has
     moved his place of residence from one Member State, in which            (Failure by a Member State to fulfil its obligations —
     he had ceased to be in employment, to another Member State,             Directive 92/106/EEC — Failure to transpose within the
     in which he is not employed and is not seeking employment.                                        prescribed period)
2.   The expression ‘nor is any pension payable’ in Article 28a of                                      (2001/C 200/28)
     Regulation No 1408/71, as amended and updated by Regu-
     lation No 2001/83, as amended by Regulation No 3096/95,
     must be interpreted as applying to a situation in which neither
     a pension based on residence, such as the State pension provided                             (Language of the case: Italian)
     for by Finnish law, nor a pension based on gainful employment
     and payable under the legislation of the Member State in which
     the person concerned is resident, is actually paid to that person,
     without its being necessary to ascertain whether he might               (Provisional translation; the definitive translation will be published
     hypothetically be entitled thereto.                                                         in the European Court Reports)
3.   The general principle resulting from Regulation No 1408/71,             In Case C-444/99: Commission of the European Communities
     as amended and updated by Regulation No 2001/83, as                     (Agents: M. Wolfcarius and S. Dragone) v Italian Republic
     amended by Regulation No 3096/95, and applied by                        (Agent: U. Leanza, assisted by O. Fiumara) — application for a
     Article 33 of that Regulation, according to which a person              declaration that, by keeping in force a system of authorisations
     entitled to a pension cannot, by reason of his residence in the         and quotas for combined transport operations between Mem-
     territory of a Member State, be called upon to pay compulsory           ber States, despite having converted all special authorisations
     insurance contributions to cover benefits for which an institution      into general authorisations, the Italian Republic has failed to
     of another Member State has assumed responsibility, precludes           fulfil its obligations under Council Directive 92/106/EEC of
     the Member State in whose territory he resides from requiring           7 December 1992 on the establishment of common rules for
     him to pay contributions or similar payments prescribed by its          certain types of combined transport of goods between Member
     legislation to cover old-age, invalidity and unemployment               States (OJ 1992 L 368, p. 38), in particular Article 2 thereof
     benefits, where he is entitled to benefits having a similar             — the Court (First Chamber), composed of: M. Wathelet,
     purpose, for which the institution of the Member State                  President of the Chamber, P. Jann (Rapporteur) and L. Sevón,
     competent in respect of pensions assumes responsibility.                Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,
                                                                             has given a judgment on 10 May 2001, in which it:
4.   The fact that the Republic of Finland and the Kingdom of
     Sweden have waived, under Article 36(3) of Regulation                   1.    Declares that, by keeping in force a system of authorisations
     No 1408/71, as amended and updated by Regulation                              and quotas for combined transport operations between Member
     No 2001/83, as amended by Regulation No 3096/95, and                          States and despite having converted all special authorisations
     Article 23 of the Nordic Convention on Social Security of                     into general authorisations, the Italian Republic failed in its
     15 June 1992 (106/93), all reimbursement of the costs of                      obligations under Article 2 of Council Directive 92/106/EEC
     benefits in kind provided by an institution in one of the Member              of 7 December 1992 on the establishment of common rules for
     States on behalf of an institution of another Member State is                 certain types of combined transport of goods between Member
     of no consequence for the purposes of interpreting Articles 28a               States;
     and 33(2) of the said Regulation.
                                                                             2.    Orders the Italian Republic to pay the costs.
(1) OJ C 6 of 8.1.2000.
                                                                             (1) OJ C 34 of 5.2.2000.


title: Case T-362/08: Action brought on 28 August 2008 — IFAW Internationaler Tiershutz-Fonds v Commission

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/42

         Action brought on 28 August 2008 — IFAW Internationaler Tiershutz-Fonds v Commission
   (Case T-362/08)
   (2008/C 301/72)
   Language of the case: English
   Parties

      Applicant: IFAW Internationaler Tiershutz-Fonds gGmbH (Hamburg, Germany) (represented by: S. Crosby and S. Santoro, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               To order the Commission to produce to the Court the letter from Mr Schröder, German Chancellor, of 15 March 2000 to Mr Prodi, President of the Commission;

               —

               To find that the contested decision is vitiated by an error of law and by manifest errors of assessment and to annul it accordingly; and

               —

               To order the Commission to pay the applicant's costs pursuant to Article 87 of the Rules of procedure of the Court of First Instance.

         Pleas in law and main arguments
   By judgment of 18 December 2007 in Case C-64/05 P (1), the Court of Justice set aside the judgment of the Court of First Instance of 30 November 2004 in Case T-168/02 IFAW Internationaler Tierschutz-Fonds v Commission [2004] ECR 1435, annulling the Commission's decision of 26 March 2002 which had refused access to the documents requested by the applicant by application of 20 December 2001, concerning the declassification of the Elbe site in Hamburg, a nature reserve, protected by the Natura 2000 scheme, as established by Council Directive 92/43/EEC (2), for the expansion of the existing Daimler Chrysler Aerospace GmbH plant for the final assembly of the Airbus A3XX. As a consequence, in the light of the Court's judgment on appeal, the applicant, by letter of 13 February 2008, renewed its application for access to the requested documents and made a confirmatory application, in accordance with Article 7(4) of Regulation (EC) No 1049/2001 (3) on 29 April 2008.
   By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment of the Commission's decision of 19 June 2008, granting partial access to its request and refusing to allow access to one of the documents for which the applicant applied under Regulation (EC) No 1049/2001 of the European Parliament and of the Council.
   The applicant claims that the Commission committed an error of law by applying Article 4(1)(a), third indent of Regulation (EC) No 1049/2001 to a purely intra-EU relationship. Moreover, the applicant submits that the Commission committed a manifest error of law in considering that the content of Mr Schröder's letter was confidential to such an extent that its disclosure would jeopardise the economic policy of Germany and other EU Member States. Further, the applicant contends that the Commission committed manifest errors of assessment in considering that the disclosure of the letter would compromise the decision-making process and, finally, by not considering public interest as overriding the confidential nature of is decision-making process.

      (1)  Case C-64/05 P Kingdom of Sweden v Commission [2007] ECR 11389.

      (2)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7).

      (3)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).


title: Case T-432/16: Judgment of the General Court of 19 July 2017 — Lackmann Fleisch- und Feinkostfabrik v EUIPO (медведь) (EU trade mark — Application for EU figurative mark медведь — Absolute ground for refusal — No distinctive character — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               28.8.2017

               EN

               Official Journal of the European Union

               C 283/44

         Judgment of the General Court of 19 July 2017 — Lackmann Fleisch- und Feinkostfabrik v EUIPO (медведь)
   (Case T-432/16) (1)

   ((EU trade mark - Application for EU figurative mark медведь - Absolute ground for refusal - No distinctive character - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009))
   (2017/C 283/67)
   Language of the case: German

      Parties

      Applicant: Lackmann Fleisch- und Feinkostfabrik GmbH (Bühl, Germany) (represented by: A. Lingenfelser, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: P. Ivanov and D. Hanf, acting as Agents)

      Re:

   Action brought against the decision of the first Board of Appeal of EUIPO of 17 May 2016 (Case R 240/2016-1), relating to an application for registration of the figurative sign медведь as an EU trade mark.

      Operative part of the judgment

   The General Court:

               1.

               Dismisses the action;

               2.

               Orders Lackmann Fleisch- und Feinkostfabrik GmbH to pay the costs.

      (1)  OJ C 364, 3.10.2016.


title: Case F-125/05: Action brought on  19 December 2005  — Tsarnavas v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/54

         Action brought on 19 December 2005 — Tsarnavas v Commission
   (Case F-125/05)
   (2006/C 60/100)
   Language of the case: French
   Parties

      Applicant: Vassilios Tsarnavas (Athens, Greece) (represented by: N. Lhoëst, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul the appointing authority's decision of 1 April 2005 rejecting the applicant's request under Article 90(1) of the Staff Regulations (Request No D/007/05);

               —

               in so far as necessary, annul the Commission's decision of 7 October 2005 rejecting the applicant's complaint (No R/488/05);

               —

               order the defendant to pay compensation of EUR 72 000 for the pecuniary and non-pecuniary damage sustained by the applicant in consequence of the irregularities or repeated service-related faults committed by the Commission in the context of the 1998 and 1999 promotion exercises;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant contests the Commission's decisions rejecting the request and the complaint which he had submitted in order to obtain compensation for the pecuniary and non-pecuniary damage caused to him by the Commission's conduct in the context of the 1998 and 1999 promotion exercises. In order to contest the measures taken by the Commission in respect of him, the applicant had initiated four pre-contentious procedures and four contentious procedures, which culminated in either the withdrawal or the annulment of those measures.
   The pecuniary damage follows from the fact that, in order to ensure that his interests were fully defended in the context of the pre-contentious procedures, the applicant was required to consult a legal adviser. The non-pecuniary damage follows from the situation of uncertainty in which the applicant found himself for a number of years and also from his loss of confidence in the institution.


title: Notice of an Open Competition

text:
C 158/26        EN                      Official Journal of the European Communities                                 3.7.2002
                                                               III
                                                             (Notices)
                                            COURT OF JUSTICE
                                         NOTICE OF AN OPEN COMPETITION
                                                       (2002/C 158/07)
         The Court of Justice of the European Communities will be publishing in the Official Journal of the European
         Communities C 158 A of 3 July 2002 the following Notice of Open Competition:
         Dutch edition
         CJ/LA/22 (interpreters of Dutch mother-tongue)
         To obtain a copy of this Official Journal please apply to the Personnel Division of the Court of Justice of
         the European Communities, L-2925 Luxembourg.
         Closing date for application: 12 September 2002.


title: Case T-43/04: Judgment of the Court of First Instance of  25 October 2005  — Fardoom and Reinard v Commission (Officials — Career development report — Evaluation exercise 2001-2002)

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/20

         Judgment of the Court of First Instance of 25 October 2005 — Fardoom and Reinard v Commission
   (Case T-43/04) (1)

   (Officials - Career development report - Evaluation exercise 2001-2002)
   (2005/C 330/50)
   Language of the case: French
   Parties

      Applicant(s): Mohammad Reza Fardoom (Roodt-sur-Syre, Luxembourg) and Marie-José Reinard (Bertrange, Luxembourg) (represented by: G. Bouneou and F. Frabetti, lawyers)

      Defendant(s): Commission of the European Communities (represented by: J. Currall and H. Krämer, Agents)
   Application for
   annulment, principally, of the evaluation exercise 2001-2002 in so far as it concerns the applicants and, in the alternative, of the applicants' career development reports in respect of that period
   Operative part of the judgment
   The Court:

               1)

               Annuls the decision adopting the career development report of Ms Marie-José Reinard in respect of the period from 1 July 2001 to 31 December 2002;

               2)

               Dismisses the remainder of the action;

               3)

               Orders the Commission to pay, in addition to its own costs, those incurred by Ms Reinard;

               4)

               Orders Mr Mohammad Reza Fardoom to bear his own costs.

      (1)  OJ C 94, 17.4.2004.


title: Case T-156/12: Action brought on 5 April 2012 — Sweet Tec v OHIM (Shape of an oval)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/32

         Action brought on 5 April 2012 — Sweet Tec v OHIM (Shape of an oval)
   (Case T-156/12)
   2012/C 165/53
   Language of the case: German

      Parties

      Applicant: Sweet Tec GmbH (Boizenburg, Germany) (represented by T. Nägele, lawyer)

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

      Form of order sought

               —

               Annul the contested decision of the First Board of Appeal of OHIM of 19 January 2012 in appeal proceedings R 542/2011-1 relating to the application for Community trade mark No 9 554 171;

               —

               order OHIM to pay the costs of the proceedings, including the costs incurred in the course of the appeal proceedings.

      Pleas in law and main arguments

      Community trade mark concerned: Three-dimensional mark, representing the shape of an oval, for goods in Classes 16 and 30 (application No 9 554 171).

      Decision of the Examiner: Application refused.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009 as the trade mark applied for has distinctive character and is not descriptive of the goods at issue in this case.


title: Case C-425/17: Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 July 2017 — Günter Hartmann Tabakvertrieb GmbH & Co. KG v Stadt Kempten

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/8

         Request for a preliminary ruling from the Bayerischer Verwaltungsgerichtshof (Germany) lodged on 14 July 2017 — Günter Hartmann Tabakvertrieb GmbH & Co. KG v Stadt Kempten
   (Case C-425/17)
   (2017/C 347/08)
   Language of the case: German

      Referring court

   Bayerischer Verwaltungsgerichtshof

      Parties to the main proceedings

      Applicant: Günter Hartmann Tabakvertrieb GmbH & Co. KG

      Defendant: Stadt Kempten

      Intervening party: Landesanwaltschaft Bayern

      Questions referred

               1.

               Must Article 2(8) of Directive 2014/40/EU (1) be interpreted as meaning that only chewing tobacco products in the traditional sense constitute ‘products intended to be chewed’?

               2.

               Must Article 2(8) of Directive 2014/40/EU be interpreted as meaning that ‘products intended to be chewed’ are synonymous with ‘chewing tobacco’ within the meaning of Article 2(6) of the directive?

               3.

               Must the question of whether a tobacco product is ‘intended to be chewed’ within the meaning of Article 2(8) of Directive 2014/40/EU be determined on the basis of an objective consideration of the product and not on the basis of the information supplied by the manufacturer or the actual use by consumers?

               4.

               Must Article 2(8) of Directive 2014/40/EU be interpreted as meaning that, in order for a tobacco product to be intended to be chewed, that product must in terms of its consistency and firmness be objectively suitable for being chewed and chewing it must result in the ingredients in the product being released?

               5.

               Must Article 2(8) of Directive 2014/40/EU be interpreted as meaning that, in order for a tobacco product to be intended ‘to be chewed’, it is additionally necessary, but also sufficient, for the repeated exertion of light pressure on the tobacco product using the teeth or tongue to cause more of the ingredients in the product to be released than if the product is simply kept in the mouth?

               6.

               Or, in order for a tobacco product to be ‘intended to be chewed’, is it necessary that merely keeping the product in the mouth or sucking it does not cause ingredients to be released?

               7.

               Can the suitability of a tobacco product ‘to be chewed’, within the meaning of Article 2(8) of Directive 2014/40/EU, also be imparted by the method of dispensation outside the processed tobacco, such as a cellulose sachet?

      (1)  Directive 2014/40/EU of the European Parliament and of the Council of 3 April 2014 on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products and repealing Directive 2001/37/EC, OJ 2014 L 127, p. 1.


title: Case C-33/17: Request for a preliminary ruling from the Okrajno Sodišče Pliberk (Austria) lodged on 23 January 2017 — Čepelnik d.o.o. v Michael Vavti

text:
               20.3.2017

               EN

               Official Journal of the European Union

               C 86/20

         Request for a preliminary ruling from the Okrajno Sodišče Pliberk (Austria) lodged on 23 January 2017 — Čepelnik d.o.o. v Michael Vavti
   (Case C-33/17)
   (2017/C 086/24)
   Language of the case: Slovenian

      Referring court

   Okrajno Sodišče Pliberk

      Parties to the main proceedings

      Applicant: Čepelnik d.o.o.

      Defendant: Michael Vavti

      Questions referred

               1.

               Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing a payment stop and the payment of a surety equal to the outstanding fee for work rendered on the domestic customer if the payment stop and the payment of the surety serve only to secure a possible fine, which would be imposed subsequently in separate proceedings against a service provider established in another Member State?
               If that question is answered in the negative:

                           a.

                           Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered if the service provider established in another Member State on whom a fine is to be imposed has no legal remedy against the imposition of a surety on the service provider established in another Member State in proceedings for the imposition of a surety and if the domestic customer’s appeal against that decision has no suspensory effect?

                           b.

                           Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered solely because the service provider is established in another Member State?

                           c.

                           Are Article 56 TFEU and Directive 2014/67/EU of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System to be interpreted as meaning that they prohibit a Member State from imposing on the domestic customer a payment stop and the payment of a surety equal to the outstanding fee for work rendered even though the fee is not yet due and the amount of the final fee has not yet been determined on account of counter claims and retention rights?


title: Case C-418/14: Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) lodged on 5 September 2014  — ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna v Dyrektor Izby Celnej we Wrocławiu

text:
               22.12.2014

               EN

               Official Journal of the European Union

               C 462/12

         Request for a preliminary ruling from the Wojewódzki Sąd Administracyjny we Wrocławiu (Poland) lodged on 5 September 2014 — ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna v Dyrektor Izby Celnej we Wrocławiu
   (Case C-418/14)
   (2014/C 462/20)
   Language of the case: Polish

      Referring court

   Wojewódzki Sąd Administracyjny we Wrocławiu

      Parties to the main proceedings

      Applicant: ROZ-ŚWIT Zakład Produkcyjno-Handlowo-Usługowy Henryk Ciurko, Adam Pawłowski spółka jawna

      Defendant: Dyrektor Izby Celnej we Wrocławiu

      Questions referred

               1.

               Must Article 5 of Council Directive 2003/96/EC of 27 October 2003 restructuring the Community framework for the taxation of energy products and electricity (1), in conjunction with Articles 2(3) and 21(4) thereof, be interpreted as precluding the national rules laid down in Article 89(16) of the Ustawa o podatku akcyzowym (Law on excise duty; ‘the UPA’) of 6 December 2008 (Dz. U. 2009 No 3, heading 11, as amended), which requires that the rate of excise duty laid down in respect of motor fuels be applied to heating oil if the taxable person fails to fulfil the formal condition laid down in Article 89(14) and (15) of the UPA?

               2.

               Does the principle of proportionality preclude the formal requirement laid down in Article 89(14) and (15) of the UPA, which makes application of the reduced rate of excise duty laid down for heating oil contingent on the drawing up and submission of a list of statements from purchasers within a statutory period, regardless of whether the substantive condition requiring the sale of fuel for heating purposes is fulfilled?

               3.

               Is the penalty laid down Article 89(16) of the UPA — which consists, as in the circumstances of the present case, in imposing on the seller, in relation to heating oil, excise duty calculated at the rate laid down for motor fuels (Article 89(4)(1) of the UPA) because the formal condition laid down in Article 89(14) and (15) of the UPA is not fulfilled — consistent with the principle of proportionality?

      (1)  OJ 2003 L 283, p. 51.


title: Case T-406/16: Judgment of the General Court of 11 July 2017 — Dogg Label v EUIPO — Chemoul (JAPRAG) (EU trade mark — Invalidity proceedings — EU word mark JAPRAG — Earlier national figurative mark JAPAN-RAG — Relative ground for refusal — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               21.8.2017

               EN

               Official Journal of the European Union

               C 277/41

         Judgment of the General Court of 11 July 2017 — Dogg Label v EUIPO — Chemoul (JAPRAG)
   (Case T-406/16) (1)

   ((EU trade mark - Invalidity proceedings - EU word mark JAPRAG - Earlier national figurative mark JAPAN-RAG - Relative ground for refusal - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2017/C 277/61)
   Language of the case: French

      Parties

      Applicant: Dogg Label (Marseilles, France) (represented by: M. Angelier, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: A. Folliard-Monguiral, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervener before the General Court: Patrick Chemoul (Paris, France) (represented by: E. Hoffman, lawyer)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 13 May 2016 (Case R 2336/2015-2), relating to invalidity proceedings between Dogg Label and Mr Chemoul.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of EUIPO of 13 May 2016 (Case R 2336/2015-2);

               2.

               Orders Dogg Label, EUIPO and Mr Patrick Chemoul to bear their own respective costs.

      (1)  OJ C 364, 3.10.2016.


title: Case T-565/10: Judgment of the General Court of 6 March 2012 — ThyssenKrupp Steel Europe v OHIM (Highprotect) (Community trade mark — Application for Community word mark Highprotect — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               21.4.2012

               EN

               Official Journal of the European Union

               C 118/25

         Judgment of the General Court of 6 March 2012 — ThyssenKrupp Steel Europe v OHIM (Highprotect)
   (Case T-565/10) (1)

   (Community trade mark - Application for Community word mark Highprotect - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)
   2012/C 118/42
   Language of the case: German

      Parties

      Applicant: ThyssenKrupp Steel Europe AG (Duisbourg, Germany) (represented by: U. Ulrich, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 30 September 2010 (Decision R 1038/2010-1), concerning an application for registration of the word mark Highprotect as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders ThyssenKrupp Steel Europe AG to pay the costs.

      (1)  OJ C 55, 19.2.2011.


title: Case C-70/04: Action brought on 16 February 2004 by the Swiss Confederation against the Commission of the European Communities

text:
               17.4.2004

               EN

               Official Journal of the European Union

               C 94/22

         Action brought on 16 February 2004 by the Swiss Confederation against the Commission of the European Communities
   (Case C-70/04)
   (2004/C 94/48)
   An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 16 February 2004 by the Swiss Confederation, represented by Simon Hirsbrunner and Ulrich Soltész, Rechtsanwälte, Brussels (Belgium).
   The applicant claims that the Court should:

               1.

               annul, in accordance with Article 231(1) EC, the Decision of the Commission of 5 December 2003 (Case TREN/AMA/11/03 – German measures relating to the approaches to Zurich Airport); (1)

               2.

               order the Commission to pay the applicant's costs in accordance with Article 69(2) of the Rules of Procedure of the Court of Justice.

         Pleas in law and main arguments
   The contested decision of the European Commission should be annulled on the following grounds:
   The Commission errs by proceeding from the assumption in its decision of 5 December 2003 that the Agreement on air transport which was signed by the European Community and the Swiss Confederation on 21 June 1999 simply provides for an exchange of traffic rights. The Agreement in fact extends the internal air traffic market to the Swiss Confederation with the result that the airlines of the Swiss Confederation and the European Union have equal rights of access to the market. That also means in particular that the Swiss Confederation and Swiss companies falling within the scope of the Agreement can rely on the freedom to provide services in the air traffic sector.
   The Commission was wrong to deny infringement of the freedom to provide services. Contrary to the Commission's decision, the 213th Regulation for the implementation of the Air Traffic Regulations of the Federal Republic of Germany affects the freedom of Swiss International Air Lines (hereinafter also ‘SWISS’) to provide services, because it hinders the operation of flights to and from Zurich.
   The Commission was wrong to deny that there was discrimination against Swiss companies was caused by the 213th Regulation. The Swiss airline SWISS is disadvantaged in competition because it is subject to stricter limitations on the use of its hub at Zurich than its direct competitor Lufthansa suffers in using its own hubs at Frankfurt-am-Main and Munich. SWISS is also affected more severely than the other airlines flying to Zurich, since it is the ‘home carrier’ and the operator of the Zurich air traffic hub and as such is particularly vulnerable to limitations on the operation of Zurich airport. In addition, the German measures treat the Zurich international airport operated by UNIQUE Flughafen Zürich AG less favourably than similar airports in Germany, to which no even roughly similarly drastic flight limitations apply or may be applied.
   Contrary to the Commission's opinion, those limitations must be measured against the principle of proportionality. That principle is applicable in connection with the Air Transport Agreement. It is infringed by the German 213th Regulation. That regulation is not based on any compelling ground of general interest and the limitations it contains are neither necessary nor appropriate. The Federal Republic has at its disposal, contrary to the Commission's view, alternative means by which to achieve its aims.
   The Commission was wrong to deny infringement of the duty of honest cooperation.
   Furthermore, in the proceedings the Commission has breached the right to a fair hearing. The Commission began with preconceived opinions and did not examine the arguments of the Swiss Confederation in an unprejudiced manner or clarify the facts of the matter. As a result the requirement for fairness was breached. The reasons given for the decision do not satisfy the requirements laid down in the case-law.

      (1)  OJ 2004 L 4, p. 13.


title: Case T-67/13: Judgment of the General Court of 15 September 2015 — Novartis Europharm v Commission (Medicinal products for human use — Marketing authorisation for the generic medicinal product Zoledronic acid Hospira — zoledronic acid — Regulatory data protection period for the reference medicinal products Zometa and Aclasta, containing the active substance zoledronic acid — Directive 2001/83/EC — Regulation (EEC) No 2309/93 and Regulation (EC) No 726/2004 — Global marketing authorisation — Regulatory data protection period)

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/29

         Judgment of the General Court of 15 September 2015 — Novartis Europharm v Commission
   (Case T-67/13) (1)

   ((Medicinal products for human use - Marketing authorisation for the generic medicinal product Zoledronic acid Hospira - zoledronic acid - Regulatory data protection period for the reference medicinal products Zometa and Aclasta, containing the active substance zoledronic acid - Directive 2001/83/EC - Regulation (EEC) No 2309/93 and Regulation (EC) No 726/2004 - Global marketing authorisation - Regulatory data protection period))
   (2015/C 363/37)
   Language of the case: English

      Parties

      Applicant: Novartis Europharm Ltd (Horsham, United Kingdom) (represented by: C. Schoonderbeek, lawyer)

      Defendant: European Commission (represented by: K. Mifsud-Bonnici and M. Šimerdová, acting as Agents)

      Intervener in support of the defendant: Hospira UK Ltd (Royal Leamington Spa, United Kingdom) (represented: initially by N. Stoate and H. Austin, Solicitors, and J. Stratford QC, and subsequently by N. Stoate and E. Vickers, Solicitors, and J. Stratford QC)

      Re:

   Application for annulment of Commission Implementing Decision C (2012) 8605 final of 19 November 2012 granting a marketing authorisation in accordance with Regulation (EC) No 726/2004 of the European Parliament and of the Council for the medicinal product for human use ‘Zoledronic acid Hospira — zoledronic acid’.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Novartis Europharm Ltd to bear its own costs and to pay the costs incurred by the European Commission and by Hospira UK Ltd.

      (1)  OJ C 101, 6.4.2013.


title: Case F-14/06: Order of the Civil Service Tribunal of 23 September 2008 — Chevalier Carmana and Others v Court of Justice

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/67

         Order of the Civil Service Tribunal of 23 September 2008 — Chevalier Carmana and Others v Court of Justice
   (Case F-14/06) (1)

   (2008/C 301/133)

      Language of the case: French

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

      (1)  OJ C 96, 22.4.2006, p. 37.


title: Case T-13/05: Judgment of the Court of First Instance of 25 October 2006 — Castell del Remei v OHIM — Bodegas Roda (ODA) (Community trade mark — Opposition proceedings — Earlier international word mark RODA and earlier national word marks BODEGAS RODA, RODA I and RODA II — Application for a Community word mark ODA — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/16

         Judgment of the Court of First Instance of 25 October 2006 — Castell del Remei v OHIM — Bodegas Roda (ODA)
   (Case T-13/05) (1)

   (Community trade mark - Opposition proceedings - Earlier international word mark RODA and earlier national word marks BODEGAS RODA, RODA I and RODA II - Application for a Community word mark ODA - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2006/C 310/31)
   Language of the case: Spanish
   Parties

      Applicant: Castell del Remei, SL (Castell del Remei, Spain) (represented by: J. Grau Mora, A. Angulo, M. Baylos Morales, A. Velázquez Ibánez, F. de Visscher, E. Cornu, É. De Gryse, D. Moreau and P. Merino Baylos, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Bodegas Roda, SA (La Rioja, Spain) (represented by: M. López Camba, lawyer)
   Re:
   Application for annulment of the decision of the First Board of Appeal of OHIM of 27 October 2004 (Case R 691/2003-1), concerning opposition proceedings between Bodegas Roda SA and Castell del Remei, SL.
   Operative part of the judgment

               1.

               The action is dismissed;

               2.

               The applicant is ordered to pay the costs.

      (1)  OJ C 69, 19.3.2005.


title: Joined Cases T-116/13 P and T-117/13 P: Order of the General Court of 13 January 2014 — Lebedef v Commission (Appeal — Staff cases — Officials — Reports — Career development report — 2008 and 2009 evaluation period — Half -time secondment for the purposes of union representation — Staff evaluation reports covering the tasks carried out in the service to which he was assigned — Designation for union purpose — Actions dismissed at first instance as manifestly unfounded — Appeal dismissed in part as manifestly inadmissible and in part as manifestly unfounded)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/21

      Order of the General Court of 13 January 2014 — Lebedef v Commission
      (Joined Cases T-116/13 P and T-117/13 P) (1)

      (Appeal - Staff cases - Officials - Reports - Career development report - 2008 and 2009 evaluation period - Half -time secondment for the purposes of union representation - Staff evaluation reports covering the tasks carried out in the service to which he was assigned - Designation for union purpose - Actions dismissed at first instance as manifestly unfounded - Appeal dismissed in part as manifestly inadmissible and in part as manifestly unfounded)
      (2014/C 71/39)
      Language of the case: French

         Parties

         Appellant: Giorgio Lebedef (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

         Other party to the proceedings: European Commission (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents, assisted by B. Wägenbaur, lawyer)

         Re:

      Two appeals brought against the orders of the European Union Civil Service Tribunal (Third Chamber) of 12 December 2012, in Case F 70/11 Lebedef v Commission and in Case F 109/11 Lebedef v Commission, not yet published in the ECR, seeking an order that those orders be set aside.

         Operative part of the order

                  1.

                  The appeals are dismissed.

                  2.

                  Mr Giorgio Lebedef will bear his own costs and those incurred by the European Commission on the appeal.

         (1)  OJ C 147, 25.5.2013.


               30.1.2010

               EN

               Official Journal of the European Union

               C 24/1

         2010/C 24/01
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 11, 16.1.2010

      Past publications

      OJ C 312, 19.12.2009

      OJ C 297, 5.12.2009

      OJ C 282, 21.11.2009

      OJ C 267, 7.11.2009

      OJ C 256, 24.10.2009

      OJ C 244, 10.10.2009

   These texts are available on:
   EUR-Lex: http://eur-lex.europa.eu


title: Case C-306/04: Judgment of the Court (First Chamber) of 16 November 2006 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — Compaq Computer International Corporation v Inspecteur der Belastingdienst — Douanedistrict Arnhem (Customs value — Laptop computers equipped with operating systems software)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/13

         Judgment of the Court (First Chamber) of 16 November 2006 (reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands)) — Compaq Computer International Corporation v Inspecteur der Belastingdienst — Douanedistrict Arnhem
   (Case C-306/04) (1)

   (Customs value - Laptop computers equipped with operating systems software)
   (2006/C 331/22)
   Language of the case: Dutch
   Referring court
   Gerechtshof te Amsterdam (Netherlands)
   Parties to the main proceedings

      Applicant: Compaq Computer International Corporation

      Defendant: Inspecteur der Belastingdienst — Douanedistrict Arnhem
   Re:
   Preliminary ruling — Gerechtshof te Amsterdam — Interpretation of Article 32(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Customs value of goods — Portable computers incorporating operating software at the time of their importation
   Operative part of the judgment
   In order to determine the customs value of imports of computers equipped by the seller with software for one or more operating systems made available by the buyer to the seller free of charge, in accordance with Article 32(1)(b) or (c) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, the value of the software must be added to the transaction value of the computers if the value of the software has not been included in the price actually paid or payable for those computers.
   The same is true when the national authorities accept as the transaction value, in accordance with Community law, the price of a sale other than that made by the Community purchaser. In such cases, ‘buyer’ for the purposes of Article 32(1)(b) or (c) of the Customs Code must be understood to mean the buyer who concluded that other sale.

      (1)  OJ C 228, 11.9.2004.


title: Judgment of the Court of First Instance of 30 September 2003 in Joined Cases T-346/02 and T-347/02, Cableuropa SA and others v Commission of the European Communities (Competition — Control of concentrations between undertakings — Regulation (EEC) No 4064/89 — Decision to refer a concentration to the national authorities — Meaning of distinct market)

text:
13.12.2003              EN                         Official Journal of the European Union                                          C 304/27
with an address for service in Luxembourg, against Com-                    (agent: L. Fraguas Gardea), Sogecable SA, established in Madrid,
mission of the European Communities (Agents: C. Berardis-                  represented by S. Martinez Lage and H. Brokelmann, lawyers,
Kayser and F. Clotuche-Duvieusart) — application for annul-                DTS Distribuidora de Televisión Digital SA (Vía Digital),
ment of the Commission’s decision refusing to enter the                    established in Madrid, and Telefónica de Contenidos SAU,
applicant on the list of officials deemed most deserving of                established in Madrid, represented by M. Merola and S. Moreno
promotion to Grade B 2 for the 2001 promotion procedure                    Sánchez, lawyers, application for annulment of the Com-
and also the decision not to promote him — the Court of First              mission decision of 14 August 2002 referring the examination
Instance (Third Chamber), composed of K. Lenaerts, President,              of the concentration integrating DTS Distribuidora de Tele-
and J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, gave a             visión Digital SA (Via Digital) and Sogecable SA to the Spanish
judgment on 18 September 2003, the operative part of which                 competition authorities in accordance with Article 9 of Council
is as follows:                                                             Regulation (EEC) No 4064/89 of 21 December 1989 on the
                                                                           control of concentrations between undertakings (Case COMP/
1.    The application is dismissed;                                        M.2845 — Sogecable/Canalsatélite Digital/Vía Digital), the
                                                                           Court of Justice (Third Chamber), composed of A. Lenaerts,
                                                                           President, and J. Azizi and M. Jaeger, judges: Registrar: J. Palacio
2.    The parties shall bear their own costs.
                                                                           González, Principal Administrator, has delivered a judgment
                                                                           on 30 September 2003 in which it:
(1) OJ C 247 of 12.10.2002.
                                                                           (1) Joins Cases T-346/02 and T-347/02 for the purposes of the
                                                                                judgment;
                                                                           (2) Dismisses the applications;
                                                                           (3) Orders the applicants to bear their own costs and jointly and
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     severally to pay the costs of the Commission, Sogecable, Vía
                                                                                Digital and Telefónica de Contenidos in connection with the
                     of 30 September 2003                                       applicants’ actions;
                                                                           (4) Orders the Kingdom of Spain to bear its own costs.
in Joined Cases T-346/02 and T-347/02, Cableuropa SA
and others v Commission of the European Communi-
                                ties (1)                                   (1) OJ C 19 of 24.1.2003.
(Competition — Control of concentrations between under-
takings — Regulation (EEC) No 4064/89 — Decision to
refer a concentration to the national authorities — Meaning
                         of distinct market)
                          (2003/C 304/49)
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                   (Language of the case: Spanish)
                                                                                of 17 September 2003
                                                                           in Case T-310/97: Nederlandse Antillen v Council of the
In Joined Cases T-346/02 and T-347/02, Cableuropa SA,                                             European Union (1)
established in Madrid (Spain), Región de Murcia de Cable SA,
established in Murcia (Spain), Valencia de Cable SA, established
in Madrid, Mediterránea Sur Sistemas de Cable SA, established              (Association of the overseas countries and territories —
in Alicante (Spain), Mediterránea Norte Sistemas de Cable SA,              Decision 97/803/EC — Action for annulment — Inadmissi-
established in Castellón (Spain), represented by L. Castresana                                            bility)
Sánchez and G. Samaniego Bordiu, lawyers, with an address
for service in Luxembourg, Aunacable SA, established in                                              (2003/C 304/50)
Madrid, represented by A. Creus Carreras and N. Lacalle
Mangas, lawyers, Sociedad Operadora de Telecomunicaciones
de Castilla y León (Retecal) SA, established in Boecilli (Spain),                             (Language of the case: English)
Euskaltel SA, established in Zamudio-Bizkaia (Spain), Telecable
de Avilés SA, established in Avilés (Spain), Telecable de Ovieda
SA, established in Oviedo (Spain), Telecable de Gijón SA,
established in Gijón (Spain), R. Cable y Telecomunicaciones                In Case T-310/97, Nederlandse Antillen, represented by
Galicia SA, established in La Coruña (Spain), Tenaria SA,                  P.V.F. Bos and M. Slotboom, lawyers, with an address for
established in Cordovilla (Spain), represented by J. Jiménez               service in Luxembourg, v Council of the European Union
Laiglesia, lawyer, v Commission of the European Communites                 (Agents: J. Huber and G. Houttuin), supported by Commission
(agent: F. Castillo de la Torre), supported by Kingdom of Spain            of the European Communities (Agents: T. van Rijn and


title: Case T-128/04: Action brought on 29 March 2004 by Carla Piccinni-Leopardi against Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/50

         Action brought on 29 March 2004 by Carla Piccinni-Leopardi against Commission of the European Communities
   (Case T-128/04)
   (2004/C 118/108)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 29 March 2004 by Carla Piccinni-Leopardi, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the Commission decision of 14 April 2003 inasmuch as it fixes the classification at recruitment of the applicant at the second step of her grade, reviews and fixes 1 April 1999 as the date for her classification at Grade A5, Step 3, and restricts the pecuniary effects of its decision to 5 October 1995;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas put forward in the present case are the same as those relied on in Case T-402/03 Katalagarianakis v Commission (OJ 2004 C 35, p. 17).


title: Action brought on 23 July 1998 by José Ma Olivares Ramos, Angel Viñas Martín, Paloma Díez Pardo, Carlos Gil Renaux, José Luis Roselló López, Rosario Doménech Cobo, Miguel Lobato González, Eduardo Peña Abizanda, Manuel de Lucas Casas, Eduardo Sorribes Manzana, Ricardo Puente Sala, José Ma Plaza Sánchez, José Ramón Borrell Nivera, Francisco Fernández Ruiz, Rafael García Palencia, Antonio Espino Morcillo, Bonifacio Marín Pérez, Teresa de la Mora, Pablo Amor Echeverri, Luis Montoya Morón, Amador Rodríguez Prieto, Marco Marcos Rodríguez, Emilio López Menchero, Leopoldo Fabra Utray, Gonzalo Molina Igartua, Gonzalo Giménez Andrés, Pedro Tarno Fernández, Manuel Rodríguez Alonso, Ana María Cobos Aguirre, Fernando Truyols Zaforteza, Isabel de Eguía Antolín, Victor Pou Serradell, Lucía Ramón Amat, Joaquín Ferrán Pérez-Portabella, Jesús Suárez Avila, Pablo Jiménez Fernández, Rosa Quevedo Díez, Angeles Santos Asenjo, Francisco de Vicente, Carlos Arroyos, Antonio Lopez Peña, Valeriano Díaz García, Alfonso González Finat, Antonio Fernández Avilés, Miguel Abellán López, Angel González Leiro, Fernando Aragón Morales, Rafael Valls i Pursals, Jesús Garijo, Alexandre Checchi Lang, Rafael Cepas Palanca, Eduardo de la Peña Vega, Antonio Alonso Madero, Jaime Díez-Canseco, Enrique Juaristi Martínez and Pablo Benavides against the Commission of the European Communities (Case T-115/98)

text:
7.11.98              EN                  Official Journal of the European Communities                                C 340/23
Antonio Oliva EspanÄol, Miguel Alay Marcos, Geraldine               twelve years of negotiation, no agreement has yet been
O'Shea, Ana Luisa Muller, Alfonso Novoa Diz, Ernesto                reached on the content of the said Royal Decree.
PeÂrez Carbonell, Alfredo Escribano Martínez, Soledad
Blanco Mangudo, Enrique Rojas de Montis, Joan Antoni                The applicants also submit that the defendant has
Salmurri Trintxet, Federica Burel Louberry, Elena Frutos            gone too far in withdrawing the technical assistance
Zamarrón, Rafael Aguirre Unceta, Manuel Parejo                      accorded, knowing that they are engaged in proceedings
Pagador, Pablo Pardo Ortiz, Santiago Vazquez Souto,                 before the Spanish courts. Despite the appointing
Concepción Sanmartín Quintela, Saturnino DuraÂn Vidal,              authority's assertion in its decision that the withdrawal
Luis Guembe Casi and Alfonso Ruiz de AzuÂa CastanÄo,                of technical assistance does not imply discontinuance
residing in Brussels and Luxembourg, represented by                 of the proceedings brought, in practice it does entail
Antonio Creus and BegonÄa Uriarte Valiente, of the                  discontinuance as the applicants are deprived of the
Barcelona and Madrid Bar, with an address for service in            technical assistance of their institution.
Brussels at 78 Avenue d'Auderghem.
                                                                    Finally, the applicants plead breach of the duty to state
                                                                    reasons in this case.
The applicants claim that the Court should:
Ð annul the Commission Decision of 10 November
     1997, refusing to provide the applicants with financial
     and technical assistance in their action concerning the
     transfer of pension rights acquired under the Spanish          Action brought on 23 July 1998 by JoseÂ Ma Olivares
     pension scheme, and the Decision of 19 June 1998               Ramos, Angel VinÄas Martín, Paloma Díez Pardo, Carlos
     rejecting the complaint made by the applicants;                Gil Renaux, JoseÂ Luis Roselló López, Rosario DomeÂnech
                                                                    Cobo, Miguel Lobato GonzaÂlez, Eduardo PenÄa Abizanda,
                                                                    Manuel de Lucas Casas, Eduardo Sorribes Manzana,
Ð order the Commission to pay the costs of these                    Ricardo Puente Sala, JoseÂ Ma Plaza SaÂnchez, JoseÂ Ramón
     proceedings.                                                   Borrell Nivera, Francisco FernaÂndez Ruiz, Rafael García
                                                                    Palencia, Antonio Espino Morcillo, Bonifacio Marín
Pleas in law and main arguments adduced in support:                 PeÂrez, Teresa de la Mora, Pablo Amor Echeverri, Luis
                                                                    Montoya Morón, Amador Rodríguez Prieto, Marco
                                                                    Marcos Rodríguez, Emilio López Menchero, Leopoldo
The applicants, who are Commission officials, take issue
                                                                    Fabra Utray, Gonzalo Molina Igartua, Gonzalo GimeÂnez
with the refusal of the appointing authority to provide
                                                                    AndreÂs, Pedro Tarno FernaÂndez, Manuel Rodríguez
them with financial and technical assistance in the
                                                                    Alonso, Ana María Cobos Aguirre, Fernando Truyols
proceedings brought before the national courts regarding
                                                                    Zaforteza, Isabel de Eguía Antolín, Victor Pou Serradell,
the absence under Spanish law of any means of
                                                                    Lucía Ramón Amat, Joaquín FerraÂn PeÂrez-Portabella,
transferring pension rights acquired under the Spanish
                                                                    JesuÂs SuaÂrez Avila, Pablo JimeÂnez FernaÂndez, Rosa
pension scheme to the Community scheme. In the
                                                                    Quevedo Díez, Angeles Santos Asenjo, Francisco de
abovementioned decision of 10 November 1997, the
                                                                    Vicente, Carlos Arroyos, Antonio Lopez PenÄa, Valeriano
Commission justified its refusal by reference to the
                                                                    Díaz García, Alfonso GonzaÂlez Finat, Antonio FernaÂndez
advanced stage reached in the negotiations with the
                                                                    AvileÂs, Miguel AbellaÂn López, Angel GonzaÂlez Leiro,
Spanish State regarding the adoption of a Royal Decree to
                                                                    Fernando Aragón Morales, Rafael Valls i Pursals, JesuÂs
fill the legal vacuum, and to the fact that the Kingdom of
                                                                    Garijo, Alexandre Checchi Lang, Rafael Cepas Palanca,
Spain had already been explicitly condemned by the Court
                                                                    Eduardo de la PenÄa Vega, Antonio Alonso Madero, Jaime
of Justice over the same matter.
                                                                    Díez-Canseco, Enrique Juaristi Martínez and Pablo
                                                                    Benavides against the Commission of the European
This action is based on the breach of the principle of                                       Communities
equal treatment, in that the applicants suffered                                          (Case T-115/98)
discrimination in comparison with other Spanish officials
who, in an identical case a few months previously,                                          (98/C 340/46)
received financial assistance from the institution, and in
                                                                                (Language of the case: Spanish)
comparison with other officials who, in similar cases, were
also assisted by their institution.                                 An action against the Commission of the European
                                                                    Communities was brought before the Court of First
The applicants, for their part, submit that in this case the        Instance of the European Communities on 23 July 1998
Commission has confused technical assistance' with the             by JoseÂ Ma Olivares Ramos, Angel VinÄas Martín, Paloma
pursuit of negotiations with the Spanish State. However,            Díez Pardo, Carlos Gil Renaux, JoseÂ Luis Roselló López,
in their opinion, the negotiation with the national                 Rosario DomeÂnech Cobo, Miguel Lobato GonzaÂlez,
authorities of a legal provision which will allow pension           Eduardo PenÄa Abizanda, Manuel de Lucas Casas,
rights to be transferred cannot be considered to be                 Eduardo Sorribes Manzana, Ricardo Puente Sala, Jose Ma
technical assistance' within the meaning of Article 24 of          Plaza SaÂnchez, JoseÂ Ramón Borrell Nivera, Francisco
the Staff Regulations since such negotiations fall within           FernaÂndez Ruiz, Rafael García Palencia, Antonio Espino
the obligations incumbent upon the Commission under                 Morcillo, Bonifacio Marín PeÂrez, Teresa de la Mora,
Article 155 of the Treaty and, even if their pursuit could          Pablo Amor Echeverri, Luis Montoya Morón, Amador
be considered to be technical assistance', quod non, it            Rodríguez Prieto, Marco Marcos Rodríguez, Emilio López
could not be considered genuine or effective, since, after          Menchero, Leopoldo Fabra Utray, Gonzalo Molina
 ---pagebreak--- C 340/24             EN                   Official Journal of the European Communities                                    7.11.98
Igartua, Gonzalo GimeÂnez AndreÂs, Pedro Tarno                       Pleas in law and main arguments adduced in support:
FernaÂndez, Manuel Rodríquez Alonso, Ana María Cobos
Aguirre, Fernando Truyols Zaforteza, Isabel de Eguía
Antolín, Victor Pou Serradell, Lucía Ramón Amat,
Joaquín FerraÂn PeÂrez-Portabella, JesuÂs SuaÂrez Avila, Pablo       The applicant company, which was awarded a contract
JimeÂnez FernaÂndez, Rosa Quevedo Díez, Angeles Santos               pursuant to the invitation to tender for the provision of a
Asenjo, Francisco de Vicente, Carlos Arroyos, Antonio                maritime public service between Spanish mainland ports
Lopez PenÄa, Valeriano Díaz García, Alfonso GonzaÂlez                and the ports of the Balearic and Canary Islands, Ceuta
Finat, Antonio FernaÂndez AvileÂs, Miguel AbellaÂn López,            and Melilla, takes issue with the Commission's decision to
Angel GonzaÂlez Leiro, Fernando Aragón Morales, Rafael               initiate the procedure provided for by Article 93(2) of the
Valls i Pursals, JesuÂs Garijo, Alexandre Checchi Lang,              EC Treaty, in so far as it claims that the compensation
Rafael Cepas Palanca, Eduardo de la PenÄa Vega, Antonio              received from the State for provision of the services put
Alonso Madero, Jaime Díez-Canseco, Enrique Juaristi                  out to tender might constitute State aid within the
Martínez and Pablo Benavides, residing in Brussels and               meaning of Article 92 of that Treaty.
Luxembourg, represented by Antonio Creus and BegonÄa
Uriarte Valiente, of the Barcelona and Madrid Bar, with
an address for service in Brussels at 78 Avenue
d'Auderghem.                                                         The applicant claims, first, that the defendant has
                                                                     misinterpreted the Community definition of State aid. In
The applicants claim that the Court should:                          its opinion, in the present case, the required effect on
Ð annul the Commission Decisions of 13 and                           trade between Member States is absent, given that, under
    19 November 1997, withdrawing from the applicants                Article 6 of Council Regulation (EEC) No 3577/92 of
    its financial and technical assistance in their action           7 December 1992 applying the principle of freedom to
    concerning the transfer of pension rights acquired               provide services to maritime transport within Member
    under the Spanish pension scheme, and the Decision of            States (1), island cabotage is a sector which, in Spain's
    the appointing authority of 19 June 1998 rejecting the           case, will not be opened up to competition until 1 January
    complaint made by the applicants;                                1999. The applicant therefore questions how a State can
                                                                     be in breach of a regulation which does not apply to it.
Ð order the Commission to pay the costs of these
    proceedings.
Pleas in law and main arguments adduced in support:                  Second, the applicant claims that the Commission has
The pleas in law and main arguments are the same as                  misinterpreted the Community guidelines on State aid to
those relied on in Case T-114/95 Rodríguez PeÂrez and                maritime transport (2), in classifying the contract in
Others v. Commission.                                                question as State aid on the basis of its allegedly excessive
                                                                     duration and the failure to publicise adequately the
                                                                     invitation to tender. The applicant takes the view that the
                                                                     guidelines do not even envisage a strict obligation to put
                                                                     out an invitation to tender for a public service contract in
Action brought on 23 July 1998 by CompanÄía                          the field of maritime transport and that it therefore falls
TrasmediterraÂnea SA against the Commission of the                   exclusively to the State to choose the method of awarding
                   European Communities                              the contract to a company. In its view the publicity given
                       (Case T-116/98)                               to the contract in question must be considered adequate,
                                                                     in that it was arranged according to generally applicable
                        (98/C 340/47)                                rules under Spanish legislation conforming to Community
               (Language of the case: Spanish)                       principles established by the Community directives on
                                                                     public procurement. For the rest, the applicant considers
An action against the Commission of the European                     that the Spanish authorities have limited the duration of
Communities was brought before the Court of First                    the contract to five years Ð a period given purely as
Instance of the European Communities on 23 July 1998                 normal target in the guidelines Ð since it will not be
by CompanÄía TrasmediterraÂnea SA, a company having its              subject to Regulation (EEC) No 3577/92 in its first year,
registered office in Madrid, represented by Antonio Creus            so that its six year term is made up in practice of one year
and BegonÄa Uriarte Valiente, of the Barcelona and Madrid            followed by five.
Bar, with an address for service in Brussels at 78 Avenue
d'Auderghem.
The applicant claims that the Court should:                          A further ground for annulment cited is breach of
Ð annul the Commission Decision of 18 February 1998                  Article 90(2) of the Treaty in that the alleged State aid
    to initiate the procedure for review of State aid under          must be considered to be compensation for provision of a
    Article 93(2), published in Official Journal of the              public service by the applicant in its capacity as the
    European Communities C 147 of 13 May 1998 in the                 company responsible for running a service in the general
    form of a Communication to the Member States and                 economic interest, namely maritime passenger transport to
    interested parties;                                              the Spanish mainland from other Spanish ports in
                                                                     compliance with standards of regularity, continuity,
Ð order the Commission to pay all the costs incurred by              capacity and quality established by the Spanish
    CompanÄía TrasmediterraÂnea SA in these proceedings.             administration.


title: Case C-57/00 P: Appeal brought on 23 February 2000 by Freistaat Sachsen against the judgment delivered on 15 December 1999 by the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities in Joined Cases T-132/96 and T-143/96 between Freistaat Sachsen, Volkswagen AG and Volkswagen Sachsen GmbH, of the one part, and the Commission of the European Communities of the other part

text:
10.6.2000                EN                   Official Journal of the European Communities                                       C 163/7
— Breach of Article 7 of Directive 85/374/EEC:                           The appellant claims that the Court should:
     — By making the defence of compliance with mandatory
          regulations (Article 7(d) of the Directive) subject to an      1. Set aside the judgment of the Court of First Instance of the
          obligation to monitor, the French law transposing the              European Communities in Joined Cases T-132/96 and
          Directive makes that defence subject to a condition not            T-143/96 Freistaat Sachsen, Volkswagen AG and Volkswa-
          laid down by the Directive.                                        gen Sachsen GmbH v Commission of the European
                                                                             Communities (1);
     — Similarly, in providing that a producer may not rely on
          the defence of the state of technical knowledge if, in         2. Annul Article 2 of Commission Decision 96/666/EC of
          the event of a defect which became apparent within a               26 June 1996 concerning aid granted by Germany to the
          certain time of the product’s being put on the market,             Volkswagen Group for works in Mosel and Chemnitz (OJ
          he did not take steps to prevent harmful consequences,             1996 L 308, p. 46);
          the second paragraph of Article 1386-12 of the French
          Civil Code inserts an additional condition in Article
          7(e) of the Directive for which that Directive makes no
          provision.                                                     3. Order the Commission to pay the costs.
(1) JORF of 21.5.1998.
(2) Council Directive on the approximation of the laws, regulations
    and administrative provisions of the Member States concerning        Pleas in law and main arguments
    liability for defective products (OJ 1985 L 210, of 7. 8.1985,
    p. 29).
                                                                         — Defective interpretation of Article 87(2)(c) EC: Contrary to
                                                                             the view expressed in the contested judgment, the term
                                                                             ‘division of Germany’ refers not only to the physical and
                                                                             transport/technical establishment of the frontier, but also
                                                                             to the whole of the economic consequences of the socialist
                                                                             system. The appellants argue that that is readily apparent
                                                                             from the fact that, in 1992 and 1997, when the immediate
                                                                             physical and transport/technical consequences of the bor-
                                                                             der between the two German States (interruption of
                                                                             transport links etc.) were already overcome, the signatory
                                                                             States of the Maastricht and Amsterdam Treaties left Article
                                                                             92(2)(c) of the EC Treaty (old version) unchanged. In the
Appeal brought on 23 February 2000 by Freistaat Sachsen                      applicants’ submission, that decision of the Treaty makers
against the judgment delivered on 15 December 1999 by                        means that Article 87(2)(c) EC is intended to support State
the Second Chamber (Extended Composition) of the                             promotion of the difficult reconstruction of economically
Court of First Instance of the European Communities in                       viable structures in East Germany by means of financial
Joined Cases T-132/96 and T-143/96 between Freistaat                         incentives. Any other interpretation would imply that the
Sachsen, Volkswagen AG and Volkswagen Sachsen                                Treaty makers deliberately maintained in force a provision
GmbH, of the one part, and the Commission of the                             that had become devoid of purpose.
            European Communities of the other part
                           (Case C-57/00 P)                                  In the practice of the Commission, Article 87(2)(c) EC
                                                                             has already been interpreted as a provision designed to
                                                                             overcome the economic consequences of the division of
                           (2000/C 163/11)                                   Germany into different economic zones as part of the
                                                                             postwar settlement, as is apparent from the Commission’s
                                                                             decision of 11 December 1964 concerning aids designed
An appeal against the judgment delivered on 15 December                      to facilitate the integration of the Saarland into the
1999 by the Second Chamber (Extended Composition) of the                     economy of the Federal Republic of Germany (Bulletin of
Court of First Instance of the European Communities in Joined                the European Economic Community No 2-1965, p. 33).
Cases T-132/96 and T-143/96 between Freistaat Sachsen,
Volkswagen AG and Volkswagen Sachsen GmbH, of the one
part, and the Commission of the European Communities, of                     The Court of First Instance paid no attention at all to the
the other part, was brought before the Court of Justice of the               fact that, in the system of the EC Treaty, the overcoming
European Communities on 23 February 2000 by Freistaat                        of the disadvantages caused by the division of Germany in
Sachsen, represented by Freshfields Deringer, Rechtsanwälte,                 the transport field is the subject-matter of a special
Charlottenstrasse 65, D-10117 Berlin, with an address for                    provision in Title V of the Treaty (Transport), namely the
service in Luxembourg at the Chambers of Aloyse May, 398                     division clause of Article 78, which was also left unaltered
Route d’Esch, L-1471 Luxembourg.                                             by the Maastricht and Amsterdam Treaties.
 ---pagebreak--- C 163/8                EN                    Official Journal of the European Communities                                     10.6.2000
— Defective application of Article 253 EC: The assumption               Appeal brought on 23 February 2000 by Volkswagen AG
    that sufficient reasons are stated for the contested Com-           and Volkswagen Sachsen GmbH against the judgment
    mission decision is based on a misrepresentation of the             delivered on 15 December 1999 by the Second Chamber
    content of that decision by the Court of First Instance.            (Extended Composition) of the Court of First Instance of
                                                                        the European Communities in Joined Cases T-132/96 and
                                                                        T-143/96 between Freistaat Sachsen, Volkswagen AG and
— Infringement of Article 87(3)(b) EC: The applicants submit            Volkswagen Sachsen GmbH, of the one part, and the
    that neither the wording nor the sense and purpose of               Commission of the European Communities of the other
    Article 87(3)(b) EC justify the conclusion by the Court of                                         part
    First Instance that the collapse of the former nationalised
    economy of the GDR in the course of reunification did not
    lead to a ‘serious disturbance in the economy’ of Germany.                                  (Case C-61/00 P)
    In view of the fact that German reunification necessitates
    the economic reconstruction of almost a third of German
    territory, the applicants maintain that it is unjustifiable to                              (2000/C 163/12)
    exclude that serious economic disturbance, the overcoming
    of which requires extraordinary financial sacrifices from
    the whole Federal Republic, from the scope of Article
    87(3)(b) EC.                                                        An appeal against the judgment delivered on 15 December
                                                                        1999 by the Second Chamber (Extended Composition) of the
                                                                        Court of First Instance of the European Communities in Joined
— Infringement of Articles 87(3) and 88 EC: The applicants              Cases T-132/96 and T-143/96 (1) between Freistaat Sachsen,
    submit that the contested judgment infringes Articles 87            Volkswagen AG and Volkswagen Sachsen GmbH, of the one
    and 88 EC by holding that the aid granted to the VW                 part, and the Commission of the European Communities, of
    group required prior notification and should have been              the other part, was brought before the Court of Justice of the
    comprehensively examined by the Commission in accord-               European Communities on 23 February 2000 by Volkswagen
    ance with Article 87 EC. They maintain that that is legally         AG and Volkswagen Sachsen GmbH, represented by Michael
    incorrect, since the aid formed part of an approved aid             Schütte, Rechtsanwalt, Rue de la Loi 99-101, B-1040 Brussels,
    programme. The Court of First Instance misunderstood                with an address for service in Luxembourg at the Chambers of
    the legal significance of the reservation in the Commission         Bonn & Schmidt, Rechtsanwalte, 7 Val Ste Croix, L-1371
    decision approving the aid programme that the special               Luxembourg.
    rules for particular sectors of industry had to be complied
    with, and wrongly assumed that approval of the aid
    programme did not extend to the motor vehicle industry.             The appellants claim that the Court should:
    That reservation applied only to rules in force. The
    Community Framework on State Aid to the Motor Vehicle
    Industry had expired on 31 December. In respect of the              — set aside the contested judgment in its entirety;
    Federal Republic of Germany, the Commission proposal
    to extend the framework had not been approved on
    22 March 1991, the date on which the disputed aids were             — uphold the claims at first instance, in so far as they seek:
    granted. It was not until April 1991, after the grant of the
    aid, that the Federal Government agreed to the extension
    of the framework. Therefore, the duty to give individual                1. annulment of Article 2 of Commission Decision K (96)
    notification, which had its legal basis only in the (expired)               1844 endg. of 26 June 1996, save for the first indent
    framework, could not apply to aid to the motor vehicle                      thereof, referring to special write-offs with a nominal
    industry from approved aid programmes. The aid fell                         value of DEM 51.67 million; and in respect of the first
    under the rules approved by the Commission for aid                          indent, referring to special write-offs with a nominal
    programmes, and in particular under the Joint Task                          value of DEM 51.67 million, declare the substance of
    between the Federal Government and the Länder of                            the dispute exhausted in that respect;
    improving the regional economic structure (Nineteenth
    Outline Plan) and the German law on investment allow-
    ances (Investitionszulagengesetz). Since the aid fell under             2. annulment of Article 3(2) of Commission Decision K
    approved programmes, it was not subject to comprehen-                       (96) 1844 endg. of 26 June 1996 in so far as the
    sive examination in accordance with Article 87 EC, but                      combined effective aid intensity, expressed in gross
    only to limited examination as existing aid.                                grant equivalent, is limited to 22.3 % for Mosel II and
                                                                                20.8 % for Chemnitz II;
                                                                            3. annulment of Article 1 of Commission Decision K (96)
(1) OJ 2000 C 79, p. 22.                                                        1844 endg. of 26 June 1996 in so far as the amount
                                                                                of investment grants declared compatible with the
                                                                                common market is limited to DEM 418.7 million.
                                                                        — Order the Commission to pay the costs.