title: Case T-329/08: Action brought on 12 August 2008 — AJD Tuna v Commission

text:
               25.10.2008

               EN

               Official Journal of the European Union

               C 272/38

         Action brought on 12 August 2008 — AJD Tuna v Commission
   (Case T-329/08)
   (2008/C 272/77)
   Language of the case: Italian
   Parties

      Applicant: AJD Tuna (Mosta Road, Malta) (represented by: M. Annoni, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Commission Regulation No 530/2008 of 12 June 2008 establishing emergency measures as regards purse seiners fishing for bluefin tuna in the Atlantic Ocean, east of longtitude 45° W, and in the Mediterranean Sea, with reference, in particular, to Article 3 of that regulation.

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are similar to those relied on in Case T-305/08 Italian Republic v Commission and Case T-313/08 Veromar di Tudisco Alfio & Salvatore S.n.c. v Commission. In particular, it is submitted that the principle of legitimate expectation has been infringed, in so far as the Community legislation on fishing for bluefin tuna gave rise to a reasonably founded expectation on the part of the applicant that its fish farming and fattening activities were lawful.


title: Case T-506/10: Action brought on 22 October 2010 — RTI and Elettronica Industriale v Commission

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/56

         Action brought on 22 October 2010 — RTI and Elettronica Industriale v Commission
   (Case T-506/10)
   ()
   2010/C 346/109
   Language of the case: English

      Parties

      Applicants: Reti Televisive Italiane SpA (RTI) and Elettronica Industriale SpA (Lissonne, Italy) (represented by: J.-F. Bellis and S. Bariatti, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul the contested decision;

               —

               order the Commission to pay the costs of the present proceedings.

      Pleas in law and main arguments

   By means of the present application, the applicants seek the annulment of the Commission decision C(2010) 4976 final of 20 July 2010 modifying the application of the commitments attached to a decision C(2003) 1082 final of 2 April 2003 declaring the operation whereby the News Corporation Limited (“Newscorp”) acquired control of the whole of the undertakings Telepiù Spa and Stream Spa compatible with the common market and with the EEA Agreement, subject to full compliance by the Newscorp with the commitments (Case No COMP/M.2876 — Newscorp/Telepiù) (1).
   The applicants put forward three pleas in law in support of their claims.
   First, they argue that the Commission has committed a manifest error of assessment in finding that, since the adoption of the decision of 2 April 2003, (the “Clearance Decision”), conditions in the Italian pay-TV market have changed to such an extent that a revision of the commitments annexed to the Clearance Decision could be warranted and, as a result, has misapplied the Notice on remedies and Article 8(2) of the Merger Regulation (2). The applicants submit that there is clear evidence that the market circumstances on the basis of which the commitments were accepted in 2003 have neither changed significantly nor on a permanent basis. Notably, Sky Italia, the Italian subsidiary of Newscorp, still enjoys a position of super-dominance in the Italian pay-TV market.
   Second, the applicants contend that the Commission has committed an error of law, a manifest error of assessment and a violation of the principle of proportionality in acceding to the request for revision of the commitments presented by Sky Italia and accepting the new commitments proposed by Newscorp, on the assumption that Sky Italia’s inability to take part in the forthcoming selection procedure for digital terrestrial television capacity to be carried out in the coming months in Italy would prevent Sky Italia from operating in the free-to-air television sector. In fact, Sky Italia is already active in the Italian free-to-air television sector and has access to digital terrestrial broadcasting capacity even without taking part in the selection procedure.
   Third, the applicants claim that the Commission has committed a manifest error of assessment and an error of law by adopting the contested decision and acceding to the request for revision of the commitments presented by Sky Italia despite the fact that, as a result of the market investigation carried out during the administrative proceedings, most parties — including the Italian Competition Authority and the Italian Communications Authority — expressed serious concerns as to the impact of the proposed revision on the Italian pay-TV market.

      (1)  JO 2004 L 110, p. 73

      (2)  Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), OJ 2004 L 24, p. 1


title: Case C-287/11 P: Judgment of the Court (Third Chamber) of 4 July 2013 — European Commission v Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG (Appeals — Agreements, decisions and concerted practices — European market — Copper and copper alloy fittings sector — Commission decision — Finding of an infringement of Article 101 TFEU — Fines — Single, complex and continuous infringement — Cessation of the infringement — Continuation of the infringement by certain participants — Repeated infringement)

text:
               24.8.2013

               EN

               Official Journal of the European Union

               C 245/2

         Judgment of the Court (Third Chamber) of 4 July 2013 — European Commission v Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG
   (Case C-287/11 P) (1)

   (Appeals - Agreements, decisions and concerted practices - European market - Copper and copper alloy fittings sector - Commission decision - Finding of an infringement of Article 101 TFEU - Fines - Single, complex and continuous infringement - Cessation of the infringement - Continuation of the infringement by certain participants - Repeated infringement)
   2013/C 245/02
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: F. Castillo de la Torre, V. Bottka and R. Sauer, acting as Agents)

      Other parties to the proceedings: Aalberts Industries NV, Comap SA, formerly Aquatis France SAS, Simplex Armaturen + Fittings GmbH & Co. KG (represented by: R. Wesseling, advocaat)

      Re:

   Appeal brought against the judgment delivered by the General Court (Eighth Chamber) on 24 March 2011 in Case T-385/06 Aalberts Industries NV and Others v European Commission by which the Court annulled, in part, Commission Decision C(2006) 4180 final of 20 September 2006 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/F-1/38.121 — Fittings) in respect of a cartel involving price-fixing and agreement on discounts and rebates, the creation of mechanisms for coordinating price increases, allocation of customers and exchange of commercial information in the European market for copper and copper alloy fittings, and also, in the alternative, a reduction in the fine imposed on the applicants

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Declares that there is no need to examine the cross-appeal;

               3.

               Orders the European Commission to pay the costs.

      (1)  OJ C 238, 13.8.2011.


20150731056617072015/C 270/463092015TC27020150817EN01ENINFO_JUDICIAL20150605373711Case T-309/15 P: Appeal brought on 5 June 2015 by CW against the judgment of the Civil Service Tribunal of 26 March 2015 in Case F-124/13 CW v Parliament
 ---documentbreak--- C2702015EN3710120150605EN0046371371Appeal brought on 5 June 2015 by CW against the judgment of the Civil Service Tribunal of 26 March 2015 in Case F-124/13 CW v Parliament
   (Case T-309/15 P)2015/C 270/46Language of the case: English
      Parties

      Appellant: CW (Brussels, Belgium) (represented by: C. Bernard-Glanz, lawyer)

      Other party to the proceedings: European Parliament

      Form of order sought by the appellant

   The appellant claims that the Court should:

            —

            declare the appeal admissible;

            —

            set aside the judgment under appeal;

            —

            annul the contested decision and the decision rejecting the complaint;

            —

            award damages; and

            —

            order the European Parliament to pay the costs.

      Pleas in law and main arguments

   In support of the appeal, the appellant relies on two pleas in law.

            1.

            First plea in law, alleging that the Civil Service Tribunal distorted evidence and erred in law in finding that, in the decision rejecting the complaint, the appointing authority sought to endorse the substance of the decision refusing assistance.

            2.

            Second plea in law, alleging that the Civil Service Tribunal distorted evidence and erred in law in considering that the Parliament did not make a manifest error of assessment in its choice of measures and methods for applying Article 24 of the Staff Regulations.


title: Case C-450/07: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 3 October 2007 — Roche Spa v Agenzia Italiana del Farmaco (AIFA), Ministero della Salute

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/26

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 3 October 2007 — Roche Spa v Agenzia Italiana del Farmaco (AIFA), Ministero della Salute
   (Case C-450/07)
   (2007/C 297/42)
   Language of the case: Italian
   Referring court
   Tribunale Amministrativo Regionale del Lazio
   Parties to the main proceedings

      Applicant: Roche Spa

      Defendants: Agenzia Italiana del Farmaco (AIFA), Ministero della Salute
   Questions referred

               1.

               After the provisions contained in Articles 2 and 3 [of Directive 89/105/EEC] which modulate the relationship between the public authorities of a Member State and the pharmaceutical companies — by allowing the pricing of a medicinal product or the raising of its price to be determined on the basis of information provided by the [latter], but only in so far as is acceptable to the competent authority, and thus on the basis of dialogue between the undertakings themselves and the authorities competent to supervise pharmaceutical expenditure — Article 4(1) [of that Directive] concerning ‘price freeze[s] imposed on all medicinal products or on certain categories of medicinal products’ characterises a price freeze as a general instrument, the continuing use of which is conditional upon a review which must be carried out, at least once a year, with reference to the macro-economic conditions existing in the Member State in question. That provision allows the competent authorities a period of 90 days in which to take a final decision, requiring them, on expiry of that period, to announce what increases or decreases in prices are being made, if any. On a proper construction of the reference to ‘decreases in prices … being made, if any’, is that provision to be interpreted as meaning that, as well as the general remedy of freezing the prices of all categories, or certain specific categories, of medicinal product, another general remedy may be applied in the form of a reduction in the prices of all categories, and of certain specific categories, of medicinal product, or must ‘decreases …, if any’ be interpreted as referring exclusively to the medicinal products which are already subject to the price freeze?

               2.

               In requiring the competent authorities of a Member State to verify, at least once a year, in the case of price freezes, whether the macroeconomic conditions justify continuing that price freeze, may Article 4(1) [of Directive 89/105/EEC] be interpreted as meaning that, if the reply to Question I is that a price reduction is permissible, it is possible to have recourse to such a measure even more than once in the course of a single year, and to do that again for many years (from 2002 until 2010)?

               3.

               Under the terms of Article 4 [of Directive 89/105/EEC] — read in the light of the preamble emphasising that the principal aim of measures controlling the prices of medicinal products is ‘the promotion of public health by ensuring the availability of adequate supplies of medicinal products at a reasonable cost’ and preventing ‘disparities in such measures [which] may hinder or distort intra-Community trade in medicinal products’ — is it compatible with the Community rules to adopt measures which refer to economic values attributed to that expenditure on the basis of ‘predictions’ rather than values which have been ‘ascertained’ (this question relates to both situations)?

               4.

               Must the requirements relating to compliance with the ceilings for pharmaceutical expenditure which each Member State is competent to determine be linked, point by point, to pharmaceutical expenditure alone, or is it within the powers of the Member States to take account also of data relating to other health expenditure?

               5.

               Must the principles, to be inferred from … Directive [89/105/EEC], of transparency and of shared participation on the part of the undertakings with an interest in measures freezing the prices of pharmaceutical products or reducing them across the board be interpreted as requiring provision to be made, always and in any circumstances, for the possibility of derogation from the price imposed (Article 4(2) [of Directive 89/105/EEC]) and for genuine participation by the applicant company, with the consequent need for the administrative authorities to state the reasons for any refusal?


title: Order of the Court of First Instance of 20 March 2001 in Case T-59/00: Compagnia Portuale Pietro Chiesa v Commission of the European Communities (Actions for annulment — Competition — Port services — Articles 82 EC and 86 EC — Preparatory act — Inadmissibility)

text:
C 227/18               EN                       Official Journal of the European Communities                                          11.8.2001
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                Genoese port authorities and the Compagnia Unica Lavoratori
                                                                           Merci Varie — the Court of First Instance (Fifth Chamber),
                           of 2 May 2001                                   composed of P. Lindh, President, R. Garcı́a-Valdecasas and
                                                                           J.D. Cooke, Judges; H. Jung, Registrar, made an order on
in Case T-104/00: Giovanni Cubeta v Commission of the                      20 March 2001, the operative part of which is as follows:
                   European Communities (1)
                                                                           1.    The application is dismissed as inadmissible.
(Officials — Transfer to a new place of employment —                       2.    The applicant shall bear its own costs and pay the costs incurred
Installation allowance — Daily subsistence allowances —                          by the Commission.
                       Conditions of grant)
                          (2001/C 227/34)                                  (1) OJ C 149 of 27.5.2000.
                   (Language of the case: French)
In Case T-104/00: Giovanni Cubeta, an official of the Com-
mission of the European Communities, residing in Brussels,
represented by C. Moreau and P. Birden, avocats, with an
address for service in Luxembourg, v Commission of the                           ORDER OF THE COURT OF FIRST INSTANCE
European Communities (Agent: J. Currall) — application for
annulment of the Commission’s decision refusing to grant the
applicant, first, an installation allowance in a sum equivalent                                     of 24 April 2001
to two months’ basic salary and, second, daily subsistence
allowances — the Court of First Instance (Single Judge:                    in Case T-172/00: Jean-Pierre Pierard v Commission of
A. Potocki); J. Palacio González, Administrator, for the Regis-                            the European Communities (1)
trar, has given a judgment on 2 May 2001, in which it:
1.    Dismisses the action;                                                (Officials — Posting linked to membership of the Staff
                                                                           Committee — Applicant not immediately re-assigned to his
2.    Orders the parties to bear their own costs.                          original post on the expiry of his term of office — Action
                                                                           partly manifestly inadmissible and partly manifestly
(1) OJ C 176 of 24.6.2000.                                                                              unfounded)
                                                                                (2001/C 227/36)
                                                                                (Language of the case: French)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                           In Case T-172/00: Jean-Pierre Pierard, an official of the
                        of 20 March 2001                                   Commission of the European Communities, residing at
                                                                           Woluwé-Saint-Lambert (Belgium), represented by J. Lombart
in Case T-59/00: Compagnia Portuale Pietro Chiesa v                        and E. Boigelot, avocats, with an address for service in
       Commission of the European Communities (1)                          Luxembourg, v Commission of the European Communities
                                                                           (Agents: C. Berardis-Kayser and D. Martin) — application, first,
                                                                           for annulment of the implicit decision of the Commission
(Actions for annulment — Competition — Port services
                                                                           rejecting the applicant’s request that he be re-assigned to his
— Articles 82 EC and 86 EC — Preparatory act —
                                                                           original service on the expiry of his term of office as a member
                           Inadmissibility)
                                                                           of the Staff Committee and, second, for compensation for the
                                                                           non-material damage allegedly suffered — the Court of
                          (2001/C 227/35)                                  First Instance (Fourth Chamber), composed of: P. Mengozzi,
                                                                           President, and V. Tiili and R.M. Moura Ramos, Judges; H. Jung,
                   (Language of the case: Italian)                         Registrar, made an order on 24 April 2001, the operative part
                                                                           of which is as follows:
In Case T-59/00: Compagnia Portuale Pietro Chiesa, estab-
                                                                           1.    The action is dismissed;
lished in Genoa (Italy), represented by Giuseppe Michele
Giacomini and Barbara Della Barile, lawyers, with an address               2.    The parties are to bear their own costs.
for service in Luxembourg, against Commission of the Euro-
pean Communities (Agents: R. Lyal and L. Pignataro) —
application for annulment of the alleged decision of the                   (1) OJ C 259 of 9.9.2000.
Commission of 22 December 1999 rejecting the complaint
lodged by the applicant seeking a declaration that Articles 82
EC and 86(1) EC were infringed by the Italian Republic, the


title: Case C-84/16 P: Appeal brought on 12 February 2016 by Continental Reifen Deutschland GmbH against the judgment of the General Court (Seventh Chamber) delivered on 8 December 2015 in Case T-525/14: Compagnie générale des établissements Michelin v European Union Intellectual Property Office

text:
               13.6.2016

               EN

               Official Journal of the European Union

               C 211/22

      Appeal brought on 12 February 2016 by Continental Reifen Deutschland GmbH against the judgment of the General Court (Seventh Chamber) delivered on 8 December 2015 in Case T-525/14: Compagnie générale des établissements Michelin v European Union Intellectual Property Office
      (Case C-84/16 P)
      (2016/C 211/28)
      Language of the case: English

         Parties

         Appellant: Continental Reifen Deutschland GmbH (represented by: S. O. Gillert, K. Vanden Bossche, B. Köhn-Gerdes, J. Schumacher, Rechtsanwälte)

         Other parties to the proceedings: European Union Intellectual Property Office, Compagnie générale des établissements Michelin

         Form of order sought

      The appellant claims that the Court should:

                  —

                  set aside the judgement of the General Court of 8. December, 2015, in Case T-525/14 in its entirety;

                  —

                  remit the case back to the General Court in order to re-examine the inherent degree of distinctiveness of the signs in dispute, including of the elements of which these signs are composed of, as well as the degree of similarity between these signs, and to,

                  —

                  order the defendant to bear the costs including the costs incurred by the Appellant.

         Pleas in law and main arguments

      The appeal is based on an infringement of Union law by the General Court in so far as the General Court in its judgment of 8. December 2015 infringed Article 8 (1) (b) of Council Regulation No. 207/2009 (1) on the Community trade mark.
      In summary, the General Court erred in its assessment of the distinctiveness of the contested CTM application ‘’, including of the elements ‘’ and ‘’ of which this sign is composed, and of the earlier trade mark ‘’. In addition, this incorrect assessment of the General Court was also based on a distortion of the facts regarding the language knowledge of the relevant public and their understanding of the meaning of the elements of the signs in dispute as well as of the evidence submitted by the defendant as Annex C.1 and Annex C.4, currently submitted as Annex 6.
      Furthermore, the General Court failed to provide reasons as to why certain aspects of the signs in dispute, e.g. their figurative elements, were not considered in in the assessment of the similarity of signs.
      On the basis of these incorrect assessments, the General Court erroneously held that in view of the strong similarity or identity of the goods covered, the average degree of similarity between the mark applied for and the earlier French trade mark and the normal inherent distinctiveness of that earlier trade mark there is a likelihood of confusion pursuant to Article 8 (1) (b) CTMR.

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


title: Appeal brought on 3 March 1998 by Odette Nicos Petrides Co. Inc. against the judgment delivered on 17 December 1997 by the Fourth Chamber of the Court of First Instance of the European Communities in Case T-152/95 between Odette Nicos Petrides Co. Inc. and the Commission of the European Communities (Case C-64/98 P)

text:
16.5.98               EN                Official Journal of the European Communities                                  C 151/5
adopt the measures necessary to transpose directives               (EEC) No 4055/86 and, in particular to Article 4(1). They
addressed to them into their domestic law before the               should therefore be adjusted in order to comply with the
expiry of the period prescribed for doing so. That period,         Regulation.
which is laid down in Article 4 of the Directive, expired
on 8 August 1995 without the Grand Duchy of                        (1) OJ L 378, 31.12.1986, p. 1.
Luxembourg having brought into force the necessary
provisions.
(1) OJ L 268, 19.10.1994, p. 15.
                                                                   Appeal brought on 3 March 1998 by Odette Nicos
                                                                   Petrides Co. Inc. against the judgment delivered on
                                                                   17 December 1997 by the Fourth Chamber of the Court
                                                                   of First Instance of the European Communities in Case
                                                                   T-152/95 between Odette Nicos Petrides Co. Inc. and the
Action brought on 27 February 1998 by the Commission                        Commission of the European Communities
of the European Communities against the Portuguese
                                                                                (Case C-64/98 P)
                           Republic
                       (Case C-62/98)                                                      (98/C 151/08)
                        (98/C 151/07)
                                                                   An appeal against the judgment delivered on 17 December
                                                                   1997 by the Fourth Chamber of the Court of First
                                                                   Instance of the European Communities in Case T-152/95
An action against the Portuguese Republic was brought
                                                                   between Odette Nicos Petrides Co. Inc. and the
before the Court of Justice of the European Communities
                                                                   Commission of the European Communities was brought
on 27 February 1998 by the Commission of the European
                                                                   before the Court of Justice of the European Communities
Communities, represented by António Caeiro, Principal
                                                                   on 3 March 1998 by Odette Nicos Petrides Co. Inc.,
Legal Adviser, acting as Agent, with an address for service
                                                                   represented by Nikolaos Vassilakakis and Evangelos
in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                   Vassilakakis, of the Thessalonica Bar, and Evangelia
of its Legal Service, Wagner Centre, Kirchberg.
                                                                   Pallioudi, of the Kavala Bar, with an address for service in
                                                                   Luxembourg at the Chambers of Carlos Zeyen, 56Ð58
                                                                   Rue Charles Martel.
The applicant claims that the Court should:
                                                                   The appellant claims that the Court should:
1. declare that, by failing to denounce or adjust the
     agreements with Senegal, Cape Verde, Angola and Sao
                                                                   Ð grant the application for review and quash the
     Tome and Principe, so as to provide for fair, free and
                                                                       judgment (1),
     non-discriminatory access by all Community nationals
     to the cargo-shares due to Portugal, as provided for in
     Council Regulation (EEC) No 4055/86 of 22 December            Ð grant all the claims for damages in the action (2),
     1986 applying the principle of freedom to provide
     services to maritime transport between Member States
     and between Member States and third countries (1),            Ð order the Commission to pay the costs of the
     the Portuguese Republic failed to fulfil its obligations          proceedings before both the Court of First Instance
     under Articles 3 and 4(1) thereof and the EC Treaty,              and the Court of Justice.
                                                                   Pleas in law and main arguments adduced in support:
2. order the Portuguese Republic to pay the costs.
                                                                   Ð Insufficient reasoning in the contested judgment on
Pleas in law and main arguments adduced in support:                    questions which have a substantial bearing on the
                                                                       principle of proportionality,
The agreements between Portugal and the States referred            Ð manifestly incorrect application of the principle of
to in the application reserve the transport of cargo                   proportionality to the actual events in the second
between the parties to vessels flying the flag of one of the           tendering procedure,
parties or to vessels operated by persons or undertakings
having the nationality of one of the parties. Thus, vessels
operated by nationals of others are excluded from the              Ð distortion and misinterpretation of documentary
trade covered by the agreements. The Commission                        evidence by the Court of First Instance in that it
considers them to be cargo-sharing arrangements which                  manifestly gave those documents a different meaning
are subject to the provisions and obligations of Regulation            from their actual one when considering the principle
 ---pagebreak--- C 151/6               EN                 Official Journal of the European Communities                                    16.5.98
    of equal treatment in relation to the second tendering          Reference for a preliminary ruling by Tribunal de Grande
    procedure, and error in law in relation to the evidence         Instance (First Chamber), Lyon, by judgment of that court
    that the principle of equal treatment was infringed at          of 25 February 1998, in the case of SA Gougenheim
    the time of the second tendering procedure,                     Imprimerie PubliciteÂ v. Directeur des Services Fiscaux du
                                                                                Rhône
Ð infringement of Articles 1 and 6 of Regulation (EEC)                                     (Case C-72/98)
    No 3389/73 (3) and Article 7(2) of Regulation (EEC)
                                                                                (98/C 151/10)
    No 727/70 (4) concerning the Commission's wide
    discretion and its right not to accept favourable
    tenders made in tendering procedures (contested
    Commission decisions of 7 August and 16 November
                                                                    Reference has been made to the Court of Justice of the
    1990), and incorrect appraisal as to whether the
                                                                    European Communities by an judgment of the First
    contested decisions are measures of economic policy,
                                                                    Chamber of the Tribunal de Grande Instance (Regional
                                                                    Court), Lyon, which was received at the Court Registry on
Ð infringement of the audi alteram partem principle and             16 March 1998, for a preliminary ruling in the case of SA
    of the principle of equality of the parties,                    Gougenheim Imprimerie PubliciteÂ v. Directeur des Services
                                                                    Fiscaux du Rhône, on the following questions:
Ð inappropriate application to the actual events of the
    prohibition of discrimination (principle of equal
                                                                    1. Where a Directive (Council Directive 73/80/EEC (1))
    treatment) and of the increase of the guarantee at the
                                                                        amends an earlier Directive (Council Directive 69/335/
    time of the fourth tendering procedure,
                                                                        EEC (2)) and specifies that the capital duty with which
                                                                        they are concerned is to be 1 % as from 1 January
Ð infringement and incorrect legal assessment of the                    1976, and the domestic law of a Member State
    validity of Commission Regulation (EEC) No 395/                     maintains a higher rate, and where in particular a
    90 (5) regarding the reduction of the time limit                    third Directive (Council Directive 85/303/EEC (3))
    in Article 3 of Commission Regulation (EEC)                         later provides that the Member States are to exempt
    No 3389/73.                                                         from capital duty transactions which were, as at 1 July
                                                                        1984, exempted or taxed at a rate of 0,50 % or less,
                                                                        must it be considered in the absence of a rate
(1) OJ C 55, 20.2.1998, p. 23.
                                                                        applicable under domestic law:
(2) OJ C 268, 14.10.1995, p. 26.
(3) OJ L 345, 15.12.1973, p. 47.
(4) OJ L 94, 28.4.1970, p. 1.
(5) OJ L 42, 16.2.1990, p. 46.                                          Ð either that, as a result of non-transposition into
                                                                            domestic law of the rate fixed by the Community
                                                                            provision and by reason of the principle of non-
                                                                            application of downward direct effect', no legally
                                                                            applicable rate existed,
Reference for a preliminary ruling from the Consiglio di                Ð or that the domestic law of that Member State was
Stato (Council of State) by order of that court of                          only partially inapplicable' having regard to the
20 January 1998, in the case of Questore di Verona (Chief                   Community        Directive   73/80/EEC     and    in
            of Police of Verona) v. Diego Zenatti                           consequence the application of a rate of 1 %
                        (Case C-67/98)                                      should be allowed on the basis of the principle of
                                                                            downward direct effect where there is a clear and
                         (98/C 151/09)                                      precise provision which involves no other
                                                                            condition'?
Reference has been made to the Court of Justice of the
European Communities by an order of the Consiglio di
                                                                    2. If, by virtue of the application of Directive 73/80/EEC,
Stato of 20 January 1998, which was received at the
                                                                        a positive answer were to be given regarding the
Court Registry on 13 March 1998, for a preliminary
                                                                        second alternative set out above, but having regard to
ruling in the case of Questore di Verona v. Diego Zenatti
                                                                        the fact that Directive 85/303/EEC of 10 June 1985
on the following questions:
                                                                        amended Article 7(2) of the latter as from its entry
                                                                        into force on 1 January 1986 by stating that Member
Do the Treaty provisions on the provision of services                   States may either exempt from capital duty all
preclude rules such as the Italian betting legislation in               transactions . . . or charge duty on them at a single
view of the social policy concerns and of the concern to                rate not exceeding 1 %' and to the fact that, by that
prevent fraud that justify it?                                          date, a Member State had not yet transposed the latter
                                                                        directive into its internal law but, on the contrary,
                                                                        retained a rate far higher than the 1 % previously
                                                                        authorised:


title: Judgment of the Court (Second Chamber) of 1 July 1999 in Case C-14/98 (reference for a preliminary ruling from the Pretura Circondariale di Torino): Battital Srl v Regione Piemonte (Plant health protection - Directive 77/93/EEC - Directive 92/76/EEC - Ban on the introduction into Italy of plants of the Citrus genus from non-member countries - Limitation in time)

text:
20.11.1999                EN                      Official Journal of the European Communities                                             C 333/3
                  JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                          (Second Chamber)
                                                                                (Sixth Chamber)
                             of 1 July 1999
in Case C-14/98 (reference for a preliminary ruling from                                                 of 8 July 1999
the Pretura Circondariale di Torino): Battital Srl v Regione
                              Piemonte (1)
                                                                             in Case C-49/92 P: Commission of the European Com-
                                                                                munities v Anic Partecipazioni SpA (1)
(Plant health protection — Directive 77/93/EEC — Directi-
ve 92/76/EEC — Ban on the introduction into Italy of
plants of the Citrus genus from non-member countries —                       (Appeal — Commission’s Rules of Procedure — Procedure
                          Limitation in time)                                for the adoption of a decision by the College of Members
                                                                             of the Commission — Competition rules applicable to
                            (1999/C 333/04)                                  undertakings — Concepts of agreement and concerted prac-
                                                                             tice — Responsibility of an undertaking for an infringement
                                                                             as a whole — Attachment of liability for the infringement
                      (Language of the case: Italian)
                                                                                — Fine)
(Provisional translation; the definitive translation will be published
                     in the European Court Reports)                                                     (1999/C 333/05)
In Case C-14/98: reference to the Court under Article 177
of the EC Treaty (now Article 234 EC) from the Pretura
Circondariale di Torino (District Magistrate’s Court, Turin),                                     (Language of the case: Italian)
Italy, for a preliminary ruling in the proceedings pending
before that court between Battital Srl and Regione Piemonte
— on the interpretation of Council Directive 77/93/EEC
of 21 December 1976 on protective measures against the                       (Provisional translation; the definitive translation will be published
introduction into the Member States of harmful organisms of                                      in the European Court Reports)
plants or plant products (OJ 1977 L 26, p. 20), as amended, in
particular, by Council Directive 91/683/EEC of 19 December
1991 (OJ 1991 L 376, p. 29) and Commission Directi-                          In Case C-49/92 P: Commission of the European Communities
ve 96/14/Euratom, ECSC, EC of 12 March 1996 (OJ 1996                         (Agent: G. Marenco) — Appeal against the judgment of the
L 68, p. 24), and of Commission Directive 92/76/EEC of                       Court of First Instance of the European Communities (First
6 October 1992 recognising protected zones exposed to                        Chamber) of 17 December 1991 in Case T-6/89 Enichem Anic
particular plant health risks in the Community (OJ 1992                      v Commission [1991] ECR II-1623, seeking to have that
L 305, p. 12), as amended by Commission Directive 95/40/EC                   judgment set aside, the other party to the proceedings being
of 19 July 1995 (OJ 1995 L 182, p. 14) and Commission                        Anic Partecipazioni SpA, formerly Anic SpA, then Enichem
Directive 96/15/EC of 14 March 1996 (OJ 1996 L 70, p. 35)                    Anic SpA, whose registered office is in Palermo, Italy, rep-
— the Court (Second Chamber), composed of: G. Hirsch,                        resented by M. Siragusa and G. Guarino, of the Rome Bar, and
President of the Chamber, G.F. Mancini and R. Schintgen                      G. Scassellati Sforzolini and F.M. Moretti, of the Bologna Bar,
(Rapporteur), Judges; F.G. Jacobs, Advocate General; H.A. Rühl,              with an address for service in Luxembourg at the Chambers of
Principal Administrator, for the Registrar, has given a judgment             Arendt & Medernach, 8-10 Rue Mathias Hardt — the Court
on 1 July 1999, in which it held:                                            (Sixth Chamber), composed of: P.J.G. Kapteyn, President of the
                                                                             Chamber, G. Hirsch, G.F. Mancini (Rapporteur), J.L. Murray
                                                                             and H. Ragnemalm, Judges; G. Cosmas, Advocate General;
The ban on importing fruits of the Citrus genus into the protected           H. von Holstein, Deputy Registrar, and D. Louterman-Hubeau,
zone Italy, set out in Article 4(2)(a) of Council Directive 77/93/EEC        Principal Administrator, for the Registrar, has given a judgment
of 21 December 1976 on protective measures against the introduc-             on 8 July 1999, in which it:
tion into the Member States of harmful organisms of plants or plant
products, ceased to apply in that Member State on 1 April 1996,
the date on which recognition of Italy as a protected zone under             1. Annuls point 1, second and third indents, of the operative part
Commission Directive 92/76/EEC of 6 October 1992 recognising                     of the judgment of the Court of First Instance of 17 December
protected zones exposed to particular plant health risks in the                  1991 in Case T-6/89 Enichem Anic v Commission;
Community came to an end by application of Commission Directi-
ve 95/40/EC of 19 July 1995 and Commission Directive 96/15/EC
of 14 March 1996.                                                            2. Dismisses Anic’s action against Commission Deci-
                                                                                sion 86/398/EEC of 23 April 1986 relating to a proceeding
                                                                                under Article 85 of the EEC Treaty (IV/31.149 — Polypropy-
Those directives preclude the application of national legislation which          lene), except to the extent that results from point 1, first indent,
keeps such a ban in force beyond that date.                                      of the operative part of that judgment;
(1) OJ C 72 of 7.3.1998.                                                     3. Sets the amount of the fine imposed on Anic Partecipazioni SpA,
                                                                                formerly Anic SpA, then Enichem Anic SpA, in Article 3 of
                                                                                Decision 86/398/EEC at the sum of ITL 662 215 500;


title: Judgment of the court (Sixth Chamber) 18 March 2004 —In Case C-342/01 (Reference for a preliminary ruling from the Juzgado de loSocial No 33 de Madrid): María Paz Merino Gómez v Continental Industrias delCaucho SA (Social policy — Equal treatment for men and women — Maternity leave— Worker whose period of maternity leave coincides with the period of annualleave for all staff agreed in a collective agreement on annual leave)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/4

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   18 March 2004
   In Case C-342/01 (Reference for a preliminary ruling from the Juzgado de lo Social No 33 de Madrid): María Paz Merino Gómez v Continental Industrias del Caucho SA (1)

   (Social policy - Equal treatment for men and women - Maternity leave - Worker whose period of maternity leave coincides with the period of annual leave for all staff agreed in a collective agreement on annual leave)
   (2004/C 106/05)
   Language of the case: Spanish
   In Case C-342/01: References to the Court under Article 234 EC by the Juzgado de lo Social No 33 de Madrid (Spain) for a preliminary ruling in the proceedings pending before that court between María Paz Merino Gómez and Continental Industrias del Caucho SA, on the interpretation of Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time (OJ 1993 L 307, p. 18), of Article 11(2)(a) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) (OJ 1992 L 348, p. 1) and of Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40), the Court (Sixth Chamber), composed of: J.N. Cunha Rodrigues, acting for the President of the Sixth Chamber, J.-P. Puissochet, R. Schintgen, F. Macken and N. Colneric (Rapporteur), Judges; J. Mischo, Advocate General; R. Grass, Registrar, has given a judgment on 18 March 2004, in which it has ruled:

               1.

               Article 7(1) of Council Directive 93/104/EC of 23 November 1993 concerning certain aspects of the organisation of working time, of Article 11(2)(a) of Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding (tenth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC) and of Article 5(1) of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions are to be interpreted as meaning that a worker must be able to take her annual leave during a period other than the period of her maternity leave, including in a case in which the period of maternity leave coincides with the general period of annual leave fixed, by a collective agreement, for the entire workforce.

               2.

               Article 11(2)(a) of Directive 92/85 is to be interpreted as also applying to the entitlement of a worker in circumstances such as those of the case before the referring court to a longer period of annual leave, provided for by national law, than the minimum laid down by Directive 93/104.

      (1)  OJ C 317 of 10.11.2001.


title: Case C-343/04: Judgment of the Court (First Chamber) of  18 May 2006  (reference for a preliminary ruling from the Oberster Gerichtshof) — Land Oberösterreich v ČEZ a.s. (Brussels Convention — Article 16(1)( a) — Exclusive jurisdiction in matters relating to property — Action for cessation of a nuisance caused, or likely to be caused, to land by the activities of a nuclear power station situated on the territory of a neighbouring State — Not applicable)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/5

         Judgment of the Court (First Chamber) of 18 May 2006 (reference for a preliminary ruling from the Oberster Gerichtshof) — Land Oberösterreich v ČEZ a.s.
   (Case C-343/04) (1)

   (Brussels Convention - Article 16(1)( a) - Exclusive jurisdiction in matters relating to property - Action for cessation of a nuisance caused, or likely to be caused, to land by the activities of a nuclear power station situated on the territory of a neighbouring State - Not applicable)
   (2006/C 165/10)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Land Oberösterreich

      Defendant: ČEZ a.s.
   Re:
   Reference for a preliminary ruling — Oberster Gerichtshof (Austria) — Interpretation of Article 16(1)(a) of the Brussels Convention — Exclusive jurisdiction for ‘proceedings which have as their object rights in rem in immovable property’ — Action for cassation of a nuisance caused, or likely to be caused to agricultural land by a neighbouring nuclear plant located on the territory of a non-contracting State
   Operative part of the judgment
   The Court:
   Article 16(1)(a) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, as amended most recently by the Convention of 29 November 1996 on the Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden, must be interpreted as meaning that an action which, like that brought under Paragraph 364(2) of the Allgemeines bürgerliches Gesetzbuch (Austrian Civil Code) in the main proceedings, seeks to prevent a nuisance affecting or likely to affect land belonging to the applicant, caused by ionising radiation emanating from a nuclear power station situated on the territory of a neighbouring State to that in which the land is situated, does not fall within the scope of that provision.

      (1)  OJ C 251, 9.10.2004.


title: Case C-432/03: Action brought on 10 October 2003 by Commission of the European Communities against Portuguese Republic

text:
C 304/14                EN                       Official Journal of the European Union                                       13.12.2003
Action brought on 30 September 2003 by the Italian                            made by the Member State as final beneficiary subject to
Republic against the Commission of the European Com-                          the only requirement that the expenditure should be in
                             munities                                         fact incurred by the final beneficiary itself.
                                                                         (b) Inadequate and contradictory statement of reasons.
                          (Case C-431/03)
                                                                         (1) OJ 1999 L 161, p. 1.
                          (2003/C 304/20)                                (2) OJ 2000 L 193, p. 39.
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 30 September 2003 by the Italian Republic
represented by Ivo Maria Braguglia, acting as Agent, and
Antonio Cingolo, Avvocato dello Stato.                                   Action brought on 10 October 2003 by Commission of
                                                                          the European Communities against Portuguese Republic
The applicant claims that the Court should:                                                       (Case C-432/03)
—     order the joinder of the present case with the related                                      (2003/C 304/21)
      Cases C-138/03 and C-324/03; annul Memorandum
      No 26777a of the European Commissioner, Mr Barnier,
      of 29 July 2003 in so far as it excludes from financing
      the advances paid in relation to State aid granted by the
      Member States after 19 February 2003; annul all related            An action against the Portuguese Republic was brought
      and preceding acts;                                                before the Court of Justice of the European Communities on
                                                                         10 October 2003 by the Commission of the European
                                                                         Communities, represented by António Caeiros, acting as
—     order the Commission of the European Communities to                Agent, with an address for service in Luxembourg.
      pay all the costs.
                                                                         The applicant claims that the Court should:
                                                                         1.   Declare that:
Pleas in law and main arguments
                                                                              —     by making tubes of polyethylene imported from
The applicant argues that the contested measure should be                           other Member States subject to an approval pro-
annulled on the following grounds:                                                  cedure, pursuant to Article 17 of Decree-Law No 38/
                                                                                382 of 7 August 1951, without taking account of
                                                                                approval certificates issued by those States,
(a)   infringement of Article 32 of Regulation (EC) No 1260/
      1999 (1) and of Rule 1(1) and (2) in the Annex to                             and
      Commission Regulation (EEC) No 1685/2000 (2).
                                                                              —     by omitting to inform the Commission of that
      The contested measure clearly infringed the abovemen-                         measure,
      tioned regulations.
      None of the provisions contained in the abovementioned                  the Portuguese Republic has failed to fulfil its obligations
      regulations states that the activities actually carried out             under Articles 28 EC and 30 EC, and also under Articles 1
      and charged to financing are significant in terms of the                and 4(2) of Decision No 3052/95/EC of the European
      eligibility of the payment made by the final recipients of              Parliament and of the Council (1) of 13 December 1995
      the funding under State aid.                                            establishing a procedure for the exchange of information
                                                                              on national measures derogating from the principle of
                                                                              the free movement of goods within the Community;
      Rather on the contrary, the scheme laid down in those
      regulations, so far as concerns the State aid within the
      meaning of Article 87 EC, considers eligible payment               2.   Order the Portuguese Republic to pay the costs.
 ---pagebreak--- 13.12.2003             EN                        Official Journal of the European Union                                          C 304/15
Pleas in law and main arguments                                          —     there is no possibility of choosing to include capital
                                                                               goods, or goods or a service treated as such, wholly in
                                                                               the assets of an undertaking where the acquirer uses those
In so far as it makes the use of construction products including               goods or that service both within the undertaking and
tubes of polyethylene imported from other Member States                        outside it (in particular for private purposes);
subject to an approval procedure, Article 17 of Decree-Law
No 38/382 constitutes a measure having effect equivalent to a            —     there is, related to this, also no possibility of deducting
quantitative restriction on imports prohibited by Article 28                   directly and wholly the tax charged on the acquisition of
EC. The Portuguese authorities have not explained why tubes                    those goods or that service; and
of polyethylene should constitute a danger to human life or
health and have not put forward any other overriding reasons.
                                                                         —     there is no provision for the charging of VAT as intended
                                                                               in Article 6(2)(a) of the Sixth Directive,
The authorities of the Member States are not entitled to
demand, where there is no need, technical or chemical analyses           compatible with the Sixth Directive — in particular
or laboratory tests when those analyses or tests have already            Article 17(1), (2) and (6) and Article 6(2) thereof?
been performed in another Member State and the results are
available to those authorities or can, at their request, be made
available.                                                               (1) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                             harmonization of the laws of the Member States relating to
                                                                             turnover taxes — Common system of value added tax: uniform
The Portuguese authorities are obliged, in accordance with the               basis of assessment (OJ L 145 of 13.6.1977, p. 1).
Court of Justice’s case-law, to take into account certificates
issued by certification bodies in other Member States which,
although they are not members of the European Association
for Technical Approval in Construction, are recognised to be
suitable bodies for the purposes of certifying the products in
question. In this instance the Portuguese authorities have failed
to do so.
                                                                         Reference for a preliminary ruling by the hof van beroep
(1) OJ L 321 of 30 December 1995, p. 1.
                                                                         te Antwerpen by interlocutory judgment of that Court of
                                                                         7 October 2003 in the proceedings between 1. British
                                                                         American Tobacco International Limited, 2. N.V. Newman
                                                                         Shipping & Agency Company, and the Belgian State,
                                                                                Ministry of Finance
                                                                                (Case C-435/03)
Reference for a preliminary ruling by the Hoge Raad der
Nederlanden by judgment of that Court of 10 October
2003 in the appeal in cassation brought by P. Charles and                                         (2003/C 304/23)
    T.S. Charles-Tijmens against the Inspector of Taxes
                        (Case C-434/03)
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by interlocutory judgment of the hof
                        (2003/C 304/22)                                  van beroep te Antwerpen (Court of Appeal, Antwerp) of
                                                                         7 October 2003, received at the Court Registry on 14 October
                                                                         2003, for a preliminary ruling in the proceedings between
                                                                         1. British American Tobacco International Limited, 2. N.V.
Reference has been made to the Court of Justice of the                   Newman Shipping & Agency Company, and the Belgian State,
European Communities by judgment of the Hoge Raad der                    Ministry of Finance on the following questions:
Nederlanden (Supreme Court of the Netherlands) of 10 Octo-
ber 2003, received at the Court Registry on 13 October 2003,             1.    Can there be a ‘supply of goods’ within the meaning of
for a preliminary ruling in the appeal in cassation brought by                 the Sixth VAT Directive (1), with the consequence that
P. Charles and T.S. Charles-Tijmens against the Inspector of                   VAT can be charged:
Taxes on the following question:
                                                                               —     in the absence of any consideration?
Is a statutory scheme such as that set out in section 3.4.1
above, which was already in existence before the Sixth                         —     in the absence of transfer of the right to dispose
Directive (1) was adopted and under which:                                           freely of the goods as owner?


title: Case C-678/15: Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 December 2015 — Mohammad Zadeh Khorassani v Kathrin Pflanz

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/18

         Request for a preliminary ruling from the Bundesgerichtshof (Germany) lodged on 16 December 2015 — Mohammad Zadeh Khorassani v Kathrin Pflanz
   (Case C-678/15)
   (2016/C 106/19)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Mohammad Zadeh Khorassani

      Defendant: Kathrin Pflanz

      Question referred

   Is the reception and transmission of an order which relates to a portfolio management (Article 4(1)(9) of the MiFID) an investment service within the meaning of the first sentence of Article 4(1)(2) (1) in conjunction with point 1 of Section A of Annex I to the MiFID?

      (1)  Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1).


title: Case T-110/11: Judgment of the General Court of 22 May 2012 — Asa v OHIM — Merck (FEMIFERAL) (Community trade mark — Opposition proceedings — Application for Community word mark FEMIFERAL — Earlier national word mark Feminatal and earlier national figurative mark feminatal — Relative ground for refusal — Similarity of the signs — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/15

         Judgment of the General Court of 22 May 2012 — Asa v OHIM — Merck (FEMIFERAL)
   (Case T-110/11) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark FEMIFERAL - Earlier national word mark Feminatal and earlier national figurative mark feminatal - Relative ground for refusal - Similarity of the signs - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 200/30
   Language of the case: Polish

      Parties

      Applicant: Asa sp. z o.o. (Głubczyce, Poland) (represented by: M. Chimiak, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Walicka, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Merck sp. z o.o. (Warsaw, Poland)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 19 November 2010 (Case R 182/2010-1) relating to opposition proceedings between Merck sp. z o.o. and Asa sp. z o.o.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Asa sp. z o.o. to pay the costs.

      (1)  OJ C 139, 7.5.2011.


C 204/36              EN                    Official Journal of the European Communities                                    17.7.1999
       Removal from the register of Case C-11/98 (1)                          Removal from the register of Case C-23/97 (1)
                        (1999/C 204/78)                                                         (1999/C 204/82)
By order of 21 April 1999 the President of the Court of Justice        By order of 26 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-11/98 (reference for a preliminary ruling       the register of Case C-23/97 (reference for a preliminary ruling
from the Pretura Circondariale di Roma): Abdulreza Kazemi              from the Tribunale di Genova): Palmira Ieropoli, Giovanni
Nava v Confcommercio.                                                  Sgambellone v Banca Carige SpA.
(1) OJ C 113 of 11.4.1998.                                             (1) OJ C 74 of 8.3.1997.
                                                                              Removal from the register of Case C-72/99 (1)
       Removal from the register of Case C-342/98 (1)
                                                                                (1999/C 204/83)
                        (1999/C 204/79)
                                                                       By order of 27 April 1999 the President of the Court of Justice
By order of 21 April 1999 the President of the Court of Justice        of the European Communities has ordered the removal from
of the European Communities has ordered the removal from               the register of Case C-72/99 (reference for a preliminary ruling
the register of Case C-342/98: Commission of the European              from the Landesvergabeamt Tirol): Firma Ortner GmbH v
Communities v Grand Duchy of Luxembourg.                               Innsbrucker Kommunalbetriebe AG.
(1) OJ C 340 of 7.11.1998.                                             (1) OJ C 136 of 15.5.1999.
       Removal from the register of Case C-346/98 (1)                         Removal from the register of Case C-25/97 (1)
                        (1999/C 204/80)                                                         (1999/C 204/84)
By order of 21 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-346/98: Commission of the European              the register of Case C-25/97 (reference for a preliminary ruling
Communities v Ireland.                                                 from the Tribunale di Genova): Fiduciaria Internazionale Srl v
                                                                       Amministrazione delle Finanze dello Stato.
(1) OJ C 340 of 7.11.1998.
                                                                       (1) OJ C 74 of 8.3.1997.
       Removal from the register of Case C-419/98 (1)                         Removal from the register of Case C-26/97 (1)
                        (1999/C 204/81)                                                         (1999/C 204/85)
By order of 23 April 1999 the President of the Court of Justice        By order of 30 April 1999 the President of the Court of Justice
of the European Communities has ordered the removal from               of the European Communities has ordered the removal from
the register of Case C-419/98 (reference for a preliminary             the register of Case C-26/97 (reference for a preliminary
ruling from the Pretura Circondariale di Genova): Marcella             ruling from the Tribunale di Genova): Giolfo e C. Srl v
Moretti v Baoco Ambrosiano Veneto SpA.                                 Amministrazione delle Finanze dello Stato.
(1) OJ C 20 of 23.1.1999.                                              (1) OJ C 74 of 8.3.1997.


C 245/32              EN                     Official Journal of the European Communities                                     1.9.2001
       Removal from the Register of Case T-36/00 (1)                          Removal from the Register of Case T-389/00 (1)
                         (2001/C 245/53)                                                        (2001/C 245/54)
                  (Language of the case: English)
                                                                                (Language of the case: Dutch)
By order of 14 May 2001, the President of the First Chamber
of the Court of First Instance of the European Communities
                                                                        By order of 5 June 2001, the President of the Fifth Chamber of
has ordered the removal from the Register of Case T-36/00,
                                                                        the Court of First Instance of the European Communities has
Sonia Marion Elder and Robert Dale Elder v Commission of
                                                                        ordered the removal from the Register of Case T-389/00,
the European Communities.
                                                                        Campina Melkunie B.V. v Commission of the European
                                                                        Communities.
(1) OJ C 135 of 13.5.00.
                                                                        (1) OJ C 95 of 24.3.01.


title: Case T-411/13: Action brought on 5 August 2013 — T & L Sugars and Sidul Açúcares v Commission

text:
               21.9.2013

               EN

               Official Journal of the European Union

               C 274/25

         Action brought on 5 August 2013 — T & L Sugars and Sidul Açúcares v Commission
   (Case T-411/13)
   2013/C 274/42
   Language of the case: English

      Parties

      Applicants: T & L Sugars Ltd (London, United Kingdom); and Sidul Açúcares, Unipessoal Lda (Santa Iria de Azóia, Portugal) (represented by: D. Waelbroeck, lawyer, and D. Slater, Solicitor)

      Defendant: European Commission and the European Union, represented in the present case by the European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul a number of Commission regulations putting cane sugar refiners at a competitive disadvantage, namely (i) Regulations 505/2013 (1) and 629/2013 (2) laying down exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during marketing year 2012/2013; (ii) Regulations 574/2013 (3) and 677/2013 (4) fixing an allocation coefficient for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy; and (iii) Regulation 460/2013 (5) on the minimum customs duty to be fixed in response to the third partial invitation to tender and Regulation 542/2013 (6) on the minimum customs duty to be fixed in response to the fourth partial invitation to tender; and declare admissible and well founded the plea of illegality under Article 277 TFEU against Regulation 36/2013 (7) opening a standing invitation to tender for the 2012/2013 marketing year for imports of sugar of CN codes 1701 14 10 and 1701 99 10 at a reduced customs duty;

               —

               In the alternative, declare the plea of illegality under Article 277 TFEU against Regulations 505/2013 and 629/2013 admissible and well founded;

               —

               Declare Article 186(a) of Regulation 1234/2007 (8) (the Recast Regulation) illegal under Article 277 TFEU to the extent these do not correctly transpose the relevant provisions of Regulation 318/2006 (9);

               —

               Condemn the EU as represented by the Commission to repair any damage suffered by the applicants as a result of the Commission's breach of its legal obligations and to set the amount of this compensation for the damage suffered by the Applicants during the period 1st April 2013 to 30th June 2013 at 42 261 036 EUR plus any ongoing losses suffered by the applicants after that date or any other amount reflecting the damage suffered or to be suffered by the applicants as further established by them in the course of this procedure especially to take due account of future damage, all the aforementioned amounts to be augmented by interest from the date of judgment by your Court until actual payment; and

               —

               Order the Commission to pay all costs and expenses in these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a violation of the principle of non-discrimination, as on the one hand, Regulations 505/2013 and 629/2013 provide for fixed, generally applicable 177 EUR and 148 EUR per tonne Surplus Levy — i.e. less than half to the usual 500 EUR per tonne — applying to a specific quantities (a total of 300 000 tonnes) of sugar, divided equally only between beet producer applicants. On the other hand, Regulation 36/2013 provides for an unknown, unpredictable customs duty, applicable only to auction winners (who can be cane refiners, beet processors, or any other third party) and for an unspecified total amount.

               2.

               Second plea in law, alleging a violation of the Recast Regulation/absence of an appropriate legal basis, since as regards Regulations 505/2013 and 629/2013, the Commission has no power whatsoever to increase quotas and is on the contrary required to impose high, dissuasive levies on the release of out-of-quota sugar on the EU market. As regards the tax auctions, the Commission clearly has no mandate or power to adopt this kind of measure, which was never envisaged in the basic legislation.

               3.

               Third plea in law, alleging a violation of the principle of legal certainty, as the Commission created a system whereby customs duties are not predictable and fixed through the application of consistent, objective criteria, but are rather determined by subjective willingness to pay (moreover of actors that are subject to very different pressures and incentives in this regard) with no actual link with the actual products being imported.

               4.

               Fourth plea in law, alleging a violation of the principle of proportionality, in so far as the Commission could easily have adopted less restrictive measures to tackle the supply shortage, which would have not been taken exclusively to the detriment of importing refiners.

               5.

               Fifth plea in law, alleging a violation of legitimate expectations, as the applicants were legitimately led to expect that the Commission would use the tools available in Regulation 1234/2007 to restore the availability of supply of raw cane sugar for refining. The applicants were also legitimately led to expect that the Commission would preserve the balance between importing refiners and domestic sugar producers.

               6.

               Sixth plea in law, alleging a violation of the principle of diligence, care and good administration, since in managing the sugar market, the Commission repeatedly committed fundamental errors and self-contradictions that demonstrate at best a lack of understanding about basic market mechanisms. For instance, its balance sheet — which constitutes one of the main tools for the content and timing of market intervention — was grossly incorrect and based on a flawed methodology. Moreover, the actions taken by the Commission were manifestly inappropriate in light of the supply shortage.

               7.

               Seventh plea in law, alleging a violation of Article 39 TFEU since the Commission failed to achieve two of the objectives set out in this Treaty provision.

               8.

               Eighth plea in law, alleging a violation of Council Regulation 1006/2011 (10). The duties applied to white sugar are indeed only fractionally higher than for raw sugar, the difference being as low as 20 EUR per tonne. This contrasts sharply with the 80 EUR difference between the standard import duty for refined sugar (419 EUR) and raw sugar for refining (339 EUR) which are set out in Council Regulation 1006/2011.
               In addition, in support of their request for damages, the applicants allege that the Commission exceeded gravely and manifestly the margin of discretion conferred to it by Regulation 1234/2007, through its passivity and inappropriateness of action. Furthermore, the Commission failure to adopt adequate measures constitutes a manifest infringement of a rule of law ‘intended to confer rights on individuals’. The Commission violated in particular the EU general principles of legal certainty, non-discrimination, proportionality, legitimate expectations and the duty of diligence, care and good administration.

      (1)  Commission Implementing Regulation (EU) No 505/2013 of 31 May 2013 laying down further exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 147, p. 3)

      (2)  Commission Implementing Regulation (EU) No 629/2013 of 28 June 2013 laying down further exceptional measures as regards the release of out-of-quota sugar and isoglucose on the Union market at reduced surplus levy during the 2012/13 marketing year (OJ 2013 L 179, p. 55)

      (3)  Commission Implementing Regulation (EU) No 574/2013 of 19 June 2013 fixing an allocation coefficient for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 168, p. 29)

      (4)  Commission Implementing Regulation (EU) No 677/2013 of 16 July 2013 fixing an allocation coefficient for available quantities of out-of-quota sugar to be sold on the Union market at reduced surplus levy during the 2012/2013 marketing year (OJ 2013 L 194, p. 5)

      (5)  Commission Implementing Regulation (EU) No 460/2013 of 16 May 2013 on the minimum customs duty for sugar to be fixed in response to the third partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 36/2013 (OJ 2013 L 133, p. 20)

      (6)  Commission Implementing Regulation (EU) No 542/2013 of 13 June 2013 on the minimum customs duty for sugar to be fixed in response to the fourth partial invitation to tender within the tendering procedure opened by Implementing Regulation (EU) No 36/2013 (OJ 2013 L 162, p. 7)

      (7)  Commission Implementing Regulation (EU) No 36/2013 of 18 January 2013 opening a standing invitation to tender for the 2012/2013 marketing year for imports of sugar of CN codes 1701 14 10 and 1701 99 10 at a reduced customs duty (OJ 2013 L 16, p. 7)

      (8)  Council Regulation (EC) No 1234/2007 of 22 October 2007 establishing a common organisation of agricultural markets and on specific provisions for certain agricultural products (OJ 2007 L 299, p. 1)

      (9)  Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector (OJ 2006 L 58, p. 1)

      (10)  Commission Regulation (EU) No 1006/2011 of 27 September 2011 amending Annex I to Council Regulation (EEC) No 2658/87 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ 2011 L 282, p. 1)


title: Case T-198/02: Action brought on 28 June 2002 by "N" against Commission of the European Communities

text:
28.9.2002             EN                      Official Journal of the European Communities                                     C 233/25
—    Vice-President Kinnock is asked to enter into negotiations          The applicant claims that the Court should:
     with the trade unions/staff organisations and to propose
     for adoption by the Commission, before the end of March             —     allow the application;
     2002, a new framework agreement and to include in the
     series of amendments on which the trade unions and                  —     annul the contested measure;
     staff organisations are to be consulted an amendment
     providing for the opportunity to adopt electoral rules by
                                                                         —     order the defendant to pay EUR 12 500 in respect of the
     way of a vote by the staff of the institution.
                                                                               material and non-material harm suffered by the applicant;
In support of its claims, the applicant pleads:                          —     order the defendant to pay the applicant’s costs irrespec-
                                                                               tive of the outcome of the case.
—    clear intent to circumvent the judgment of the Court of
     First Instance of 22 November 2001 delivered in Case
     T-349/00 Lebedef v Commission;
                                                                         Pleas in law and main arguments
—    infringement of the 1974 framework agreement and of
     the principle ‘patere legem quam ipse fecisti’;                     (1) Failure on the part of the defendant to comply with the
                                                                               judgment of the Court of First Instance in Case T-182/99
—    absence of any objective examination of the representativ-                by which the decision not to promote the applicant was
     ity of the trade unions/staff organisations and manifest                  annulled.
     error in the comparative assessment of that rep-
     resentativity;                                                      (2) Misuse of procedure.
—    infringement of the principle of non-discrimination;                (3) Misuse of powers.
—    infringement of the rights of the defence;                          (4) Unreasonable exercise by the defendant of its discretion
                                                                               in relation to promotions.
—    breach of the principle of protection of legitimate expec-
     tations;                                                            (5) Incorrect exercise of that discretion.
—    failure to comply with the obligation to state reasons;             (6) Sham re-examination of the applicant’s candidature for
                                                                               promotion.
—    failure to comply with the duty to have regard for the
     welfare and interests of officials;                                 (7) Superiority of the mark of the applicant, who was not
                                                                               promoted, vis-à-vis the marks of those promoted.
—    infringement of Article 24a of the Statute and of the
     principle of the freedom of trade union activity.                   (8) Liability for a wrongful act on the part of the defendant,
                                                                               causing the applicant material and non-material harm.
Action brought on 2 July 2002 by Georgios Karavelis
               against the European Parliament                           Action brought on 28 June 2002 by ‘N’ against Com-
                                                                                mission of the European Communities
                        (Case T-197/02)
                                                                                (Case T-198/02)
                        (2002/C 233/46)
                                                                                (2002/C 233/47)
                   (Language of the Case: Greek)
                                                                                (Language of the case: French)
An action against the European Parliament was brought before
the Court of First Instance of the European Communities on               An action against the Commission of the European Communi-
2 July 2002 by Georgios Karavelis, resident in Brussels,                 ties was brought before the Court of First Instance of the
represented by K. Tagaras, Lawyer, with an address for service           European Communities on 28 June 2002 by ‘N’, represented
in Luxembourg.                                                           by Nicola Lhoëst, lawyer.
 ---pagebreak--- C 233/26              EN                      Official Journal of the European Communities                                      28.9.2002
The applicant claims that the Court should:                              The applicant claims that the Court should:
—     annul the decision of the Commission of 25 February                —      annul the Commission’s decision of 27 July 2001 refusing
      2002 imposing on the applicant the penalty provided for                   to classify the applicant in the higher grade of his career
      in Article 86(2)(f) of the Staff Regulations, namely                      bracket in accordance with Article 31(2) of the Staff
      removal from post without loss of entitlement to pension;                 Regulations;
—     annul any connected and/or subsequent decision;                    —      annul, in so far as is necessary, the express decision
                                                                                adopted by the Court of Auditors on 26 February 2002
—     order the Commission to pay to the applicant                              in which it rejected the complaint submitted by the
      EUR 12 500 by way of compensation for non-material                        applicant pursuant to Article 90(2) of those regulations;
      damage;
                                                                         —      order the Court of Auditors to pay all the costs of these
—     order the Commission to pay the entire costs.                             proceedings.
Pleas in law and main arguments                                          Pleas in law and main arguments
The applicant was found guilty of a number of criminal                   The applicant in this case, a former official of the Commission
offences by the Cour d’Appel, Brussels. However, that court              and the Court of Auditors of the European Communities,
ordered a suspended sentence of 5 years subject to a number              contests the refusal of the appointing authority to classify him
of conditions in order to avoid affecting the applicant’s civic          in the higher grade of his career bracket at the time of his
status.                                                                  recruitment to grade B5 step 3, following his inclusion on the
                                                                         list of suitable candidates drawn up on the basis of competition
                                                                         No COM/B/340.
Subsequently, in view of the seriousness of the offences, the
Commission removed the applicant from his post without loss
of entitlement to pension.                                               In support of his claims, the applicant alleges that:
                                                                         —      substantive errors and manifest errors of assessment were
In support of his arguments, the applicant alleges lack of a                    made in respect of his professional qualifications, the
statement of reasons and breach of the rights of the defence.                   length and relevance of his professional experience with
Moreover, the applicant claims that the disciplinary measure is                 regard to the post to be filled, and the level of his
disproportionate to the seriousness of the effect of his conduct                remuneration in his successive positions;
on the institution and his work. Finally, the applicant alleges
infringement of Article 7 of Annex IX to the Staff Regulations.          —      the obligation to state reasons was not observed.
Action brought on 28 June 2002 by Pierre Tomarchio                       Action brought on 2 July 2002 by The Sunrider Corpor-
against the Court of Auditors of the European Communi-                   ation against the Office for Harmonisation in the Internal
                              ties                                                                     Market
                        (Case T-201/02)                                                           (Case T-203/02)
                        (2002/C 233/48)                                                           (2002/C 233/49)
                  (Language of the case: French)                                             (Language of the case: English)
An action against the Court of Auditors of the European                  An action against the Office for Harmonisation in the Internal
Communities was brought before the Court of First Instance               Market was brought before the Court of First Instance of the
of the European Communities on 28 June 2002 by Pierre                    European Communities on 2 July 2002 by The Sunrider
Tomarchio, residing in Nancy (France), represented by Nicolas            Corporation, represented by Mr Axel Kockläuner of Meissner,
Lhoëst, lawyer, with an address for service in Luxembourg.               Bolte & Partner in Munich, Germany.