title: Judgment of the Court of 20 April 1999 in Case C-241/97 (reference for a preliminary ruling from the Regeringsrätten in the proceedings brought before that court by Försäkringsaktiebolaget Skandia (publ) (Insurance Directives 73/239/EEC and 79/267/EEC - Restrictions on choice of assets)

text:
17.7.1999               EN                      Official Journal of the European Communities                                                C 204/1
                                                                         I
                                                                   (Information)
                                                     COURT OF JUSTICE
                                                               COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                       1. Declares that, by establishing and maintaining in force a system
                                                                                which, in cases of new installation or conversion of gas appliances,
                                                                                requires that only sealed heaters be used in living areas, thereby
                          (Sixth Chamber)                                        implicitly prohibiting the installation of other types of heaters
                                                                                which comply with Council Directive 90/396/EEC of 29 June
                                                                                1990 on the approximation of the laws of the Member States
                         of 25 March 1999                                        relating to appliances burning gaseous fuels, the Italian Republic
                                                                                has failed to fulfil its obligations under that directive;
in Case C-112/97: Commission of the European Communi-                        2. Orders the Italian Republic to pay the costs.
                     ties v Italian Republic (1)
                                                                             (1) OJ C 166 of 31.5.1997.
(Failure by a Member State to fulfil its obligations —
Directive 90/396/EEC — Heaters — Installation in living
                                areas)
                          (1999/C 204/01)
                                                                                JUDGMENT OF THE COURT
                    (Language of the case: Italian)
                                                                                of 20 April 1999
(Provisional translation; the definitive translation will be published
                                                                             in Case C-241/97 (reference for a preliminary ruling from
                   in the European Court Reports)
                                                                             the Regeringsrätten in the proceedings brought before
                                                                               that court by Försäkringsaktiebolaget Skandia (publ) (1)
In Case C-112/97: Commission of the European Communities
(Agents: Paolo Stancanelli and Hans Støvlbaek) v Italian                     (Insurance Directives 73/239/EEC and 79/267/EEC —
Republic (Agent: Professor Umberto Leanza, assisted by Fran-                                  Restrictions on choice of assets)
cesca Quadri) — application for a declaration that, by estab-
lishing and maintaining a system which requires that only
sealed heaters be installed in living areas, thereby implicitly                                          (1999/C 204/02)
prohibiting the installation of other types of heaters which
comply with Council Directive 90/396/EEC of 29 June 1990
on the approximation of the laws of the Member States relating                                  (Language of the case: Swedish)
to appliances burning gaseous fuels (OJ 1990 L 196, p. 15),
the Italian Republic has failed to fulfil its obligations under
Community law — the Court (Sixth Chamber), composed of:                      (Provisional translation; the definitive translation will be published
G. Hirsch (President of the Second Chamber), acting as                                           in the European Court Reports)
President of the Sixth Chamber, G.F. Mancini, H. Ragnemalm,
R. Schintgen and K.M. Ioannou (Rapporteur), Judges; S. Alber,
Advocate General; R. Grass, Registrar, has given a judgment                  In Case C-241/97: reference to the Court under Article 177 of
on 25 March 1999, in which it:                                               the EC Treaty from the Regeringsrätten (Sweden) for a
 ---pagebreak--- C 204/2                 EN                     Official Journal of the European Communities                                          17.7.1999
preliminary ruling in the criminal proceedings brought before                  court as against the national authorities, rendering inapplicable
that court by Försäkringsaktiebolaget Skandia (publ) — on the                  any contrary rule of national law.
interpretation of Article 18(1) of the First Council Directive
(73/239/EEC) of 24 July 1973 on the coordination of laws,
regulations and administrative provisions relating to the                 (1) OJ C 252 of 16.8.1997.
taking-up and pursuit of the business of direct insurance other
than life assurance (OJ 1973 L 228, p. 3), as amended by
Article 26 of Council Directive 92/49/EEC of 18 June 1992
on the coordination of laws, regulations and administrative
provisions relating to direct insurance other than life assurance
and amending Directives 73/239/EEC and 88/357/EEC (Third
Non-life Insurance Directive) (OJ 1992 L 228, p. 1), and of
Article 21(1) of the First Council Directive (79/267/EEC) of
5 March 1979 on the coordination of laws, regulations and
administrative provisions relating to the taking up and pursuit                            JUDGMENT OF THE COURT
of the business of direct life assurance (OJ 1979 L 63, p. 1), as
amended by Article 27 of Council Directive 92/96/EEC of
10 November 1992 on the coordination of laws, regulations                                           of 20 April 1999
and administrative provisions relating to direct life assurance
and amending Directives 79/267/EEC and 90/619/EEC (Third
Life Assurance Directive) (OJ 1992 L 360, p. 1) — the                     in Case C-360/97 (reference for a preliminary ruling from
Court, composed of: G.C. Rodrı́guez Iglesias, President, J.-P.            the Centrale Raad van Beroep): Herman Nijhuis v Bestuur
Puissochet, G. Hirsch and P. Jann, Presidents of Chambers, J.C.               van het Landelijk Instituut Sociale Verzekeringen (1)
Moitinho de Almeida (Rapporteur), C. Gulmann, J.L. Murray,
D.A.O. Edward, H. Ragnemalm, L. Sevón and M. Wathelet,
Judges; D. Ruiz-Jarabo Colomer, Advocate General; H. von                  (Social security — Incapacity for work — Special scheme for
Holstein, Assistant Registrar, has given a judgment on 20 April           civil servants — Point 4(a) of Section J of Annex VI to
1999, in which it has ruled:                                              Regulation (EEC) No 1408/71 — Articles 48 and 51 of the
                                                                                EC Treaty)
                                                                                (1999/C 204/03)
1. On a proper construction of Article 18(1) of the First Council                             (Language of the case: Dutch)
    Directive (73/239/EEC) of 24 July 1973 on the coordination
    of laws, regulations and administrative provisions relating to the
    taking-up and pursuit of the business of direct insurance other
    than life assurance, as amended by Article 26 of Council              (Provisional translation; the definitive translation will be published
    Directive 92/49/EEC of 18 June 1992 on the coordination of                               in the European Court Reports)
    laws, regulations and administrative provisions relating to direct
    insurance other than life assurance and amending Directives
    73/239/EEC and 88/357/EEC (Third Non-life Insurance                   In Case C-360/97: reference to the Court under Article 177 of
    Directive), and of Article 21(1) of the First Council Directive       the EC Treaty from the Centrale Raad van Beroep (Higher
    (79/267/EEC) of 5 March 1979 on the coordination of                   Social Security Court) (Netherlands) for a preliminary ruling in
                                                                          the proceedings pending before that court between Herman
    laws, regulations and administrative provisions relating to the
                                                                          Nijhuis and Bestuur van het Landelijk Instituut Sociale Verze-
    taking-up and pursuit of the business of direct life assurance, as
                                                                          keringen — on the interpretation of Point 4(a) of Section J of
    amended by Article 27 of Council Directive 92/96/EEC of 10            Annex VI to Council Regulation (EEC) No 1408/71 of
    November 1992 on the coordination of laws, regulations and            14 June 1971 on the application of social security schemes to
    administrative provisions relating to direct life assurance and       employed persons, to self-employed persons and to members
    amending Directives 79/267/EEC and 90/619/EEC (Third Life             of their families moving within the Community, and of Point
    Assurance Directive), a rule of national law may not prohibit         2(b) of Section J of Annex 2 to Council Regulation (EEC)
    insurance undertakings from holding, as their free assets, shares     No 574/72 of 21 March 1972 laying down the procedure for
    representing more than 5 % of all the voting rights in a domestic     implementing Regulation No 1408/71, as amended and
    or foreign public limited company without administrative author-      updated by Council Regulation (EEC) No 2001/83 of 2 June
    isation.                                                              1983 (OJ 1983 L 230, p. 6), as adapted by Annex I, Part VIII,
                                                                          to the Act concerning the Conditions of Accession of the
                                                                          Kingdom of Spain and the Portuguese Republic and the
                                                                          Adjustments to the Treaties (OJ 1985 L 302, p. 23) — the
                                                                          Court, composed of: G.C. Rodrı́guez Iglesias, President, P.J.G.
                                                                          Kapteyn, J.-P. Puissochet and G. Hirsch (Presidents of
                                                                          Chambers), G.F. Mancini, J.C. Moitinho de Almeida, C. Gul-
2. Article 18(1) of Directive 73/239, as amended by Article 26 of         mann, L. Sevón and M. Wathelet (Rapporteur), Judges; G. Cos-
    Directive 92/49, and Article 21(1) of Directive 79/267, as            mas, Advocate General; H.A. Rühl, Principal Administrator,
    amended by Article 27 of Directive 92/96, are sufficiently            for the Registrar, has given a judgment on 20 April 1999, in
    precise and unconditional to be relied upon before the national       which it has ruled:


title: Case C-40/16: Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 25 January 2016 — Irene Uhden v KLM Royal Dutch Airlines N.V.

text:
               17.5.2016

               EN

               Official Journal of the European Union

               C 175/5

         Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 25 January 2016 — Irene Uhden v KLM Royal Dutch Airlines N.V.
   (Case C-40/16)
   (2016/C 175/03)
   Language of the case: German

      Referring court

   Landgericht Hamburg

      Parties to the main proceedings

      Applicant: Irene Uhden

      Defendant: KLM Royal Dutch Airlines N.V.

      Question referred

   Is the second sentence of Article 7(1) of Regulation (EC) No 261/2004 (1) of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91 (‘the air passenger rights regulation’) to be interpreted as meaning that the concept of ‘distance’ relates only to the direct distance between the point of departure and the last destination, regardless of the distance actually flown in the individual case?

      (1)  OJ 2004 L 46, p. 1.


title: Case F-61/10: Action brought on 24 July 2010 — AF v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/63

         Action brought on 24 July 2010 — AF v Commission
   (Case F-61/10)
   ()
   2010/C 301/100
   Language of the case: French

      Parties

      Applicant: AF (Luxembourg, Luxembourg) (represented by: F. Frabetti, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the defendant’s decision refusing the request for assistance relating to psychological harassment of which the applicant claims to have been a victim and claim for compensation for the non-material damage suffered.

      Form of order sought

               —

               annul Decision No 24938 of 28 September 2009 by which the appointing authority of the Commission refused the request for assistance D/300/09 brought by the applicant pursuant to Article 24 of the Staff Regulations, concerning the psychological harassment suffered and/or experienced in his service in the period subject to all necessary reservations from April 2004 to April 2009;

               —

               allocate to the applicant EUR 600 000 as compensation for the non-material damage suffered as a result of the harassment and the effect on his health;

               —

               order the European Commission to pay the costs.


title: Action brought on 10 October 1995 by the Commission of the European Communities against Ireland (Case C-318/95)

text:
9 . 12 . 95              EN                    Official Journal of the European Communities                                          No C 333/7
      contested decision was adopted, reserving the use of the            by the Commission of the European Communities,
      name feta solely to cheese produced from sheep and/or               represented by James Macdonald Flett, member of the Legal
      goat's milk by the natural straining method compatible,             Service, acting as agent, with an address for service in
      for the purposes of the case under review, with                     Luxembourg at the office of Carlos Gomez de la Cruz,
      Articles 30 and 36 of the EEC Treaty ?                              Centre Wagner.
                                                                          The Applicant claims that the Court should:
                                                                          1 . declare that by failing to adopt the laws, regulations or
Action brought on 10 October 1995 by the Commission of                           administrative provisions necessary to comply with
          the European Communities against Ireland                               Council Directives 92/45/EEC ('), 92/46/EEC ( 2 ),
                           ( Case C-3 18/95 )                                    92/65/EEC ( 3 ), 92/ 116/EEC (4 ), 92/117/EEC ( 5 ) and
                             ( 95/C 333/ 11 )                                    92/118/EEC ( 6 ) Ireland has failed to fulfil its obligations
                                                                                under the Directives and under the Treaty; and
An action against Ireland was brought before the Court of
Justice of the European Communities on 10 October 1995                    2 . order Ireland to pay the costs.
by the Commission of the European Communities,
represented by James Macdonald Flett, member of the Legal
Service, acting as agent, with an address for service in                  Pleas in law and main arguments:
Luxembourg at the office of Carlos Gomez de la Cruz,
Centre Wagner.
                                                                          Article 189 of the EC Treaty, under which a directive shall
The Applicant claims that the Court should :                              be binding, as to the result to be achieved, upon each
                                                                          Member State, carries by implication an obligation on the
1 . declare that by failing to adopt the laws, regulations or             Member States to observe the period for compliance laid
      administrative provisions necessary to comply with                  down in the directive . That period expired on 1 January
      Council Directive 92/ 119/EEC of 17 December 1992                   1994 without Ireland having enacted the provisions
      introducing general Community measures for the                      necessary to comply with the Directives referred to in the
                                                                          conclusions of the Commission .
      control of certain animal diseases and specific measures
      relating to swine vesicular disease ( ! ) Ireland has failed
      to fulfil its obligations under the Directive and under the
                                                                          (') Council Directive 92/45/EEC of 16 June 1992 on public health
      Treaty; and                                                               and animal health problems relating to the killing of wild game
                                                                                and the placing on the market of wild-game meat ( OJ No L 268 ,
2 . order Ireland to pay the costs .                                            14 . 9 . 1992 , p. 35 ).
                                                                          (2 ) Council Directive 92/46/EEC of 16 June 1992 laying down the
                                                                                health rules for the production and placing on the market of raw
Pleas in law and main arguments                                                 milk, heat-treated milk and milk-based products ( OJ No L 268 ,
                                                                                14 . 9 . 1992 , p. 1 ).
Article 189 of the EC Treaty, under which a directive shall               ( 3 ) Council Directive 92/65/EEC of 13 July 1992 laying down
be binding, as to the result to be achieved, upon each                          animal health requirements governing trade in and imports into
Member State, carries by implication an obligation on the                       the Community of animals, semen, ova and embryos not subject
Member States to observe the period for compliance laid                         to animal health requirements laid down in specific Community
down in the directive. That period expired on 1 October                         rules referred to in Annex A ( I ) to Directive 90/425/EEC ( OJ No
1993 without Ireland having enacted the provisions                              L 268 , 14 . 9 . 1992 , p. 54 ).
                                                                          (4 ) Council Directive 92/1 1 6/EEC of 1 7 December 1 992 amending
necessary to comply with the Directive referred to in the                       and updating Directive 71 / 118/EEC on health problems
conclusions of the Commission .
                                                                                affecting trade in fresh poultrymeat ( OJ No L 62 , 15 . 3 . 1993 ,
                                                                                p. 1 ).
( ] ) OJ No L 62 , 15 . 3 . 1993 , p. 69 .                                ( 5 ) Council Directive        92/ 117/EEC     of   17 December     1992
                                                                                concerning measures for protection against specified zoonoses
                                                                                and specified zoonotic agents in animals and products of animal
                                                                                origin in order to prevent outbreaks to food-borne infections
                                                                                and intoxications ( OJ No L 62 , 15 . 3 . 1993 , p. 38 ).
                                                                          ( 6 ) Council Directive 92/118/EEC of 17 December 1992 laying
                                                                                down animal health and public health requirements governing
                                                                                trade in and imports into the Community of products not
Action brought on 10 October 1995 by the Commission of                          subject to the said requirements laid down in specific
           the European Communities against Ireland                             Community rules referred to in Annex A ( I ) to Directive
                           ( Case C-3 19/95                                     89/662/EEC and , as regards pathogens, to Directive
                                                                                90/425/EEC ( OJ No L 62 , 15 . 3 . 1993 , p. 49 ).
                              ( 95/C 333/ 12 )
An action against Ireland was brought before the Court of
Justice of the European Communities on 10 October 1995


title: Case C-366/10: Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 22 July 2010 — The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc. v The Secretary of State for Energy and Climate Change

text:
               25.9.2010

               EN

               Official Journal of the European Union

               C 260/9

         Reference for a preliminary ruling from High Court of Justice Queen's Bench Division (Administrative Court) (United Kingdom) made on 22 July 2010 — The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc. v The Secretary of State for Energy and Climate Change
   (Case C-366/10)
   ()
   2010/C 260/12
   Language of the case: English

      Referring court

   High Court of Justice Queen's Bench Division (Administrative Court)

      Parties to the main proceedings

      Applicants: The Air Transport Association of America, American Airlines, Inc., Continental Airlines, Inc., United Airlines, Inc.

      Defendant: The Secretary of State for Energy and Climate Change

      Questions referred

               1.

               Are any or all of the following rules of international law capable of being relied upon in this case to challenge the validity of Directive 2003/87/EC (1) as amended by Directive 2008/101/EC (2) so as to include aviation activities within the EU Emissions Trading Scheme (together the ‘Amended Directive’):

                           (a)

                           the principle of customary international law that each state has complete and exclusive sovereignty over its air space;

                           (b)

                           the principle of customary international law that no state may validly purport to subject any part of the high seas to its sovereignty;

                           (c)

                           the principle of customary international law of freedom to flyover the high seas;

                           (d)

                           the principle of customary international law (the existence of which is not accepted by the Defendant) that aircraft overflying the high seas are subject to the exclusive jurisdiction of the country in which they are registered, save as expressly provided for by international treaty;

                           (e)

                           the Chicago Convention (in particular Articles 1, 11, 12, 15 and 24);

                           (f)

                           the Open Skies Agreement (in particular Articles 7, 11(2)(c) and 15(3));

                           (g)

                           the Kyoto Protocol (in particular, Article 2(2))?

                     To the extent that question 1 may be answered in the affirmative:

               2.

               Is the Amended Directive invalid, if and insofar as it applies the Emissions Trading Scheme to those parts of flights (either generally or by aircraft registered in third countries) which take place outside the airspace of EU Member States, as contravening one or more of the principles of customary international law asserted above?

               3.

               Is the Amended Directive invalid, if and insofar as it applies the Emissions Trading Scheme to those parts of flights (either generally or by aircraft registered in third countries) which take place outside the airspace of EU Member States:

                           (a)

                           as contravening Articles 1, 11 and/or 12 of the Chicago Convention;

                           (b)

                           as contravening Article 7 of the Open Skies Agreement?

               4.

               Is the Amended Directive invalid, insofar as it applies the Emissions Trading Scheme to aviation activities:

                           (a)

                           as contravening Article 2(2) of the Kyoto Protocol and Article 15(3) of the Open Skies Agreement;

                           (b)

                           as contravening Article 15 of the Chicago Convention, on its own or in conjunction with Articles 3(4) and 15(3) of the Open Skies Agreement;

                           (c)

                           as contravening Article 24 of the Chicago Convention, on its own or in conjunction with Article 11(2)(c) of the Open Skies Agreement?

      (1)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (Text with EEA relevance)
   OJ L 275, p. 32

      (2)  Directive 2008/101/EC of the European Parliament and of the Council of 19 November 2008 amending Directive 2003/87/EC so as to include aviation activities in the scheme for greenhouse gas emission allowance trading within the Community (Text with EEA relevance)
   OJ L 8, p. 3


title: Case C-223/06: Judgment of the Court (Seventh Chamber) of 14 December 2006 — Commission of the European Communities v Grand-Duchy of Luxembourg (Failure of a Member State to fulfil obligations — Directive 2003/51/EC — Company law — Annual accounts of certain types of companies — Failure to implement within the prescribed period)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/22

         Judgment of the Court (Seventh Chamber) of 14 December 2006 — Commission of the European Communities v Grand-Duchy of Luxembourg
   (Case C-223/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 2003/51/EC - Company law - Annual accounts of certain types of companies - Failure to implement within the prescribed period)
   (2006/C 331/39)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: G. Braun, Agent)

      Defendant: Grand-Duchy of Luxembourg (represented by: S. Schreiner, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to have adopted, within the prescribed period, all the provisions necessary to comply with Directive 2003/51/EC of the European Parliament and of the Council of 18 June 2003 amending Council Directives 78/660/EEC, 83/349/EEC, 86/635/EEC and 91/674/EEC on the annual and consolidated accounts of certain types of companies, banks and other financial institutions and insurance undertakings (OJ L 178, p. 16)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2003/51/EC of the European Parliament and of the Council of 18 June 2003 amending Council Directives 78/660/EEC, 83/349/EEC, 86/635/EEC and 91/674/EEC on the annual and consolidated accounts of certain types of companies, banks and other financial institutions and insurance undertakings, the Grand-Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               2.

               Orders the Grand-Duchy of Luxembourg to pay the costs.

      (1)  OJ C 165, 15.7.2006.


title: Judgment of the Court (Fifth Chamber) of 17 June 2004 in Case C-99/03: Commission of the European Communities v Ireland (Failure of a Member State to fulfil its obligations — Directive 2000/52/EC — Transparency of financial relations between Member States and public undertakings — Failure to implement within the prescribed period)

text:
               7.8.2004

               EN

               Official Journal of the European Union

               C 201/6

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 17 June 2004
   in Case C-99/03: Commission of the European Communities v Ireland (1)

   (Failure of a Member State to fulfil its obligations - Directive 2000/52/EC - Transparency of financial relations between Member States and public undertakings - Failure to implement within the prescribed period)
   (2004/C 201/10)
   Language of the case: English
   In Case C-99/03: Commission of the European Communities (Agent: J. Flett) v Ireland (Agent: D. O'Hagan) — application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings (OJ 2000 L 193, p. 75) or, in any event, by failing to notify the Commission of those measures, Ireland has failed to fulfil its obligations under that directive — the Court (Fifth Chamber), composed of: C. Gulmann, President of the Chamber, S. von Bahr (Rapporteur) and R. Silva de Lapuerta, Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has given a judgment on 17 June 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Commission Directive 2000/52/EC of 26 July 2000 amending Directive 80/723/EEC on the transparency of financial relations between Member States and public undertakings, Ireland has failed to fulfil its obligations under that directive;

               2.

               Orders Ireland to pay the costs.

      (1)  OJ C 101, 26.4.2003.


title: Judgment of the Court of 2 August 2016 in Case E-34/15 — EFTA Surveillance Authority v Iceland (Failure by an EFTA State to fulfil its obligations — Failure to implement — Directive 2012/46/EU amending Directive 97/68/EC on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery)

text:
               13.4.2017

               EN

               Official Journal of the European Union

               C 120/23

         JUDGMENT OF THE COURT
   of 2 August 2016
   in Case E-34/15
   EFTA Surveillance Authority v Iceland
   (Failure by an EFTA State to fulfil its obligations — Failure to implement — Directive 2012/46/EU amending Directive 97/68/EC on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery)
   (2017/C 120/11)
   In Case E-34/15, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that Iceland has failed to fulfil its obligations under the Act referred to at point 1a of Chapter XXIV of Annex II to the Agreement on the European Economic Area (Commission Directive 2012/46/EU of 6 December 2012 amending Directive 97/68/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery) as adapted to the Agreement by way of Protocol 1 thereto, and under Article 7 of the Agreement, by failing to adopt the measures necessary to implement the Act within the time prescribed or, in any event, by failing to inform the EFTA Surveillance Authority thereof, the Court, composed of Carl Baudenbacher, President, Per Christiansen (Judge-Rapporteur) and Páll Hreinsson, Judges, gave judgment on 2 August 2016, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that Iceland has failed to fulfil its obligations under the Act referred to at point 1a of Chapter XXIV of Annex II to the Agreement on the European Economic Area (Commission Directive 2012/46/EU of 6 December 2012 amending Directive 97/68/EC of the European Parliament and of the Council on the approximation of the laws of the Member States relating to measures against the emission of gaseous and particulate pollutants from internal combustion engines to be installed in non-road mobile machinery) as adapted to the agreement under its Protocol 1, and under Article 7 of the Agreement, by failing to adopt the measures necessary to implement the Act within the time prescribed.

               2.

               Orders Iceland to bear the costs of the proceedings.


title: Action brought on 15 February 1995 by Nicolas Wegter against the Commission of the European Communities (Case T-27/95)

text:
 No C 87/16          | EN |               Official Journal of the European Communities                                     8 . 4 . 95
The applicant claims that the Court should:                          1995 by Nicolas Wegter, residing in Brussels, represented by
                                                                     Georges Vandersanden, of the Brussels Bar.
— annul the decision of the Commission of 26 April 1994
    refusing the applicants the benefits payable pursuant to         The applicant claims that the Court should:
    Article 73 (2 ) of the Staff Regulations in the event of the
    accidental death of an official,                                 — declare the action admissible and well-founded,
— order the defendant to pay the costs .                             — consequently, annul the decision rejecting the
                                                                         applicant's application for the vacant post COM/030/94
                                                                         of Director in Directorate A — Information and
Pleas in law and main arguments adduced in support:
                                                                         Communication Strategy (DG X/A), and the resulting
                                                                         decision to appoint another candidate to that post,
The applicants plead in support of their action
infringements of Article 73 of the Staff Regulations and of          — order the defendant to pay all the costs .
Articles 2 and 4 of the Rules on the Insurance of Officials of
the European Communities against the risk of Accident and
of Occupational Disease ('the Rules'), together with a               Pleas in law and main arguments adduced in support:
manifest error of assessment.
                                                                     The applicant, a Grade A 3 official in the Spokesman's
The applicants, being the persons entitled under Krinio              Service of the Commission, contests the rejection of his
Bitha deceased, a former official of the Commission, state           application for the post of Director of Directorate A —
that she was the victim of a fatal underwater diving accident.       Information and Communication Strategy.
The applicants applied for the benefits payable under the
Staff Regulations on the accidental death of a Community             Having submitted his application for the post in question
official. The application was rejected on the ground that,           and received confirmation from the appointing authority
according to the third indent of Article 4 (1 ) ( b) of the Rule's,  that two other applications 'may be taken into
accidents resulting from underwater exploration are not              consideration in this instance', he learned that the post had
covered by Article 73 of the Staff Regulations .                     been allocated to an external candidate .
The applicants maintain that, under Article 73 of the Staff          He maintains that the decisions at issue are vitiated by the
Regulations, officials of the European Communities are               absence of a statement of reasons, or, at the very least, by
insured, from the date of their entering the service, against        inadequate and erroneous reasoning. He contends that the
the risk of occupational disease and of accident. Inasmuch           Commission completely failed to show, in its response to his
as the risks excluded from insurance under Article 4 ( 1 ) ( b)      complaint, that it had compared the merits, abilities and
of the Rules, including accidents resulting from underwater          experience of the successful candidate with those of the
exploration, derogate from the general principle of cover,           other candidates, having regard to the requirements set out
they are to be strictly interpreted .                                in the notice of vacancy, despite the fact that such
                                                                     comparative analysis was particularly necessary in the
                                                                     circumstances, since the successful candidate did not have a
The accident which cost Miss Bitha her life occurred during
a diving exercise and not in the course of underwater                university degree.
exploration.
                                                                    With regard to the filling of an A 2 post, there has also been
                                                                     an infringement of Article 5 of the Staff Regulations, in that
Consequently, the contested decision is vitiated by a                the defendant institution failed to show that the professional
manifest error of assessment and was adopted in breach of            experience of the successful candidate can be regarded as
the provisions of Article 73 of the Staff Regulations and            experience equivalent to a university degree.
Articles 2 and 4 of the Rules .
                                                                    The applicant further pleads an infringement of the
                                                                     appointment procedure. He complains that the appointing
                                                                     authority departed on two occasions from the opinion of the
                                                                    Advisory Committee on Staff Reports ( CCN) by favouring
                                                                    the sole external candidate instead of the internal candidates
                                                                    regarded as meritorious, and that it took the second opinion
Action brought on 15 February 1995 by Nicolas Wegter                of the CCN as the basis for its view that it was only the
  against the Commission of the European Communities                external candidate who fulfilled the criteria set out in the
                         (Case T-27/95 )                            notice of vacancy and had the requisite professional
                          ( 95/C 87/35 )                            experience.
                                                                    Finally, the applicant asserts that the exceptional nature of
               (Language of the case: French)                       the procedure provided for in Article 29 ( 2) of the Staff
                                                                    Regulations has been disregarded, and that there has been a
                                                                     breach of the principle of non-discrimination.
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 15 February


title: Case C-142/16: Action brought on 9 March 2016 — European Commission v Federal Republic of Germany

text:
               10.5.2016

               EN

               Official Journal of the European Union

               C 165/13

         Action brought on 9 March 2016 — European Commission v Federal Republic of Germany

   (Case C-142/16)
   (2016/C 165/14)
   Language of the case: German

      Parties

      Applicant: European Commission (represented by: C. Hermes and E. Manhaeve, acting as Agents)

      Defendant: Federal Republic of Germany

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that, in so far as it authorised the construction of a coal-fired power station in Hamburg-Moorburg without carrying out a proper and comprehensive assessment of its environmental impact, the Federal Republic of Germany has failed to fulfil its obligations under Article 6(3) and (4) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora;

               —

               order the Federal Republic of Germany to pay the costs of the proceedings.

      Pleas in law and main arguments

   The City of Hamburg issued a water-law permit for the Moorburg coal-fired power station by which the drawing of water from the river Elbe was authorised for purposes of the cooling operations of the power station. The environmental impact assessment underlying the permit identified the danger that the drawing of cooling water would kill fish migrating up the Elbe and thus be significantly detrimental to upstream Natura 2000 areas, the conservation objectives of which include the corresponding species. Ultimately, however, the environmental impact assessment concluded that the areas of conservation would not be adversely affected in any significant way because the assessment characterised a fish ladder installation set up between the power station and the relevant conservation areas as a damage limitation measure. Furthermore, the environmental impact assessment did not investigate the possible cumulative effects of power stations upstream from Moorburg which already exist or have been applied for.
   Under the second sentence of Article 6(3) of Directive 92/43/EEC, projects may be agreed to, the light of the impact assessment, only on condition that significant deterioration of Natura 2000 areas can be excluded. If that is not the case, a project may be agreed to only under the strict conditions laid down in Article 6(4) of the directive.
   The Commission takes the view that the impact assessment for the site in question is incorrect or incomplete in two respects. First, the assessment assessed the fish ladder as a damage limitation measure in the context of Article 6(3) of the directive, whereas, in accordance with the criteria set out in the judgment of the Court of Justice in Briels (C-521/12 (2)) it is, at most, a compensatory measure within the meaning of Article 6(4) of the directive. Second, the assessment fails to investigate the potential cumulative effects mentioned above, contrary to Article 6(3) of the directive. Since, on that basis, the City of Hamburg ruled out any significant adverse effects for areas of conservation under Article 6(3) of the directive, it failed to satisfy the conditions laid down in Article 6(4) of the directive, such as considering alternative solutions and the overriding public interest.

      (1)  OJ 1992 L 206, p. 7.

      (2)  ECLI:EU:C:2014:330


title: Case C-301/04 P: Judgment of the Court (Second Chamber) of 29 June 2006 — Commission of the European Communities v SGL Carbon AG, Tokai Carbon Co. Ltd, Nippon Carbon Co. Ltd, Showa Denko KK, GrafTech International Ltd, formerly UCAR International Inc., SEC Corp., The Carbide/Graphite Group Inc. (Appeals — Competition — Agreements, decisions and concerted practices — Graphite electrodes — Article 81(1) EC — Fines — Guidelines on the method of setting fines — Leniency Notice — Production of documents in a Commission investigation)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/4

         Judgment of the Court (Second Chamber) of 29 June 2006 — Commission of the European Communities v SGL Carbon AG, Tokai Carbon Co. Ltd, Nippon Carbon Co. Ltd, Showa Denko KK, GrafTech International Ltd, formerly UCAR International Inc., SEC Corp., The Carbide/Graphite Group Inc.
   (Case C-301/04 P) (1)

   (Appeals - Competition - Agreements, decisions and concerted practices - Graphite electrodes - Article 81(1) EC - Fines - Guidelines on the method of setting fines - Leniency Notice - Production of documents in a Commission investigation)
   (2006/C 224/06)
   Language of the case: German
   Parties

      Appellant: Commission of the European Communities (represented by: W. Mölls, W. Wils and H. Gading, Agents)

      Other parties to the proceedings: SGL Carbon AG (represented by: M. Klusmann, Rechtsanwalt), Tokai Carbon Co. Ltd, established in Tokyo (Japan), Nippon Carbon Co. Ltd, established in Tokyo, Showa Denko KK, established in Tokyo, GrafTech International Ltd, formerly UCAR International Inc., established in Wilmington (United States), SEC Corp., established in Amagasaki (Japan), The Carbide/Graphite Group Inc.
   Re:
   Appeal brought against the judgment of 29 April 2004 of the Court of First Instance (Second Chamber) in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission in so far as the Court of First Instance reduced the amount of the fine which had been imposed on SGL Carbon (Case T-239/01) by Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes (OJ 2002 L 100, p. 1)
   Operative part of the judgment
   The Court:

               1.

               Sets aside the first indent of paragraph 2 of the operative part of the judgment of the Court of First Instance of the European Communities of 29 April 2004 in Joined Cases T-236/01, T-239/01, T-244/01 to T-246/01, T-251/01 and T-252/01 Tokai Carbon and Others v Commission;

               2.

               Sets at EUR 75.7 million the amount of the fine imposed on SGL Carbon AG by Article 3 of Commission Decision 2002/271/EC of 18 July 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement — Case COMP/E-1/36.490 — Graphite electrodes;

               3.

               Orders SGL Carbon AG to pay the costs.

      (1)  OJ C 262, 23.10.2004.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 15 October 1998 in Case C-229/97: Commission of the European Communities v. Portuguese Republic (Failure of a Member State to fulfil its obligations - Failure to transpose fully Directive 76/869/EEC)

text:
C 378/2                EN                 Official Journal of the European Communities                                      5.12.98
and administrative provisions necessary to comply with               measures forthwith, the Portuguese Republic has failed to
Commission Directive 94/69/EC of 19 December 1994                    fulfil its obligations under the third paragraph of
adapting to technical progress for the twenty-first time             Article 189 of the EC Treaty and the combined provisions
Council Directive 67/548/EEC on the approximation of                 of Article 13 of that directive, Article 395 of and Annex
laws, regulations and administrative provisions relating to          XXXVI to the Act concerning the conditions of accession
the classification, packaging and labelling of dangerous             of the Kingdom of Spain and the Portuguese Republic and
substances (OJ L 381, 31.12.1994, p. 1), the Kingdom of              the adjustments to the Treaties (OJ L 302, 15.11.1985,
Belgium has failed to fulfil its obligations under that              p. 23), the Portuguese Republic has failed to fulfil its
directive Ð the Court (Third Chamber), composed of: C.               obligations under that directive, Ð the Court (Sixth
Gulmann (Rapporteur), President of the Chamber, J. C.                Chamber), composed of: P. J. G. Kapteyn, President of the
Moitinho de Almeida and J.-P. Puissochet, Judges; P.                 Chamber, G. Hirsch, G. F. Mancini, H. Ragnemalm and
LeÂger, Advocate-General; R. Grass, Registrar, has given a           R. Schintgen (Rapporteur), Judges; S. Alber, Advocate-
judgment on 6 October 1998, in which it:                             General; R. Grass, Registrar, has given a judgment on
                                                                     15 October 1998, in which it:
1. Declares that, by failing to adopt the laws, regulations
     and administrative provisions necessary to comply               1. Declares that, by failing to adopt within the prescribed
     with Commission Directive 94/69/EC of 19 December                    period the laws, regulations and administrative
     1994 adapting to technical progress for the twenty-                  provisions necessary to comply with Council Directive
     first time Council Directive 67/548/EEC on the                       79/869/EEC of 9 October 1979 concerning the
     approximation of laws, regulations and administrative                methods of measurement and frequencies of sampling
     provisions relating to the classification, packaging and             and analysis of surface water intended for the
     labelling of dangerous substances, the Kingdom of                    abstraction of drinking water in the Member States,
     Belgium has failed to fulfil its obligations under the               the Portuguese Republic has failed to fulfil its
     first paragraph of Article 2 thereof;                                obligations under the combined provisions of that
                                                                          directive and of the Act concerning the conditions of
                                                                          accession of the Kingdom of Spain and the Portuguese
2. Orders the Kingdom of Belgium to pay the costs.                        Republic and the adjustments to the Treaties;
(1) OJ C 166, 30.5.1998.
                                                                     2. Orders the Portuguese Republic to pay the costs.
                                                                     (1) OJ C 252, 16.8.1997.
                JUDGMENT OF THE COURT
                        (Sixth Chamber)
                      of 15 October 1998                                            JUDGMENT OF THE COURT
       in Case C-229/97: Commission of the European                                         (Fifth Chamber)
            Communities v. Portuguese Republic (1)
                                                                                of 15 October 1998
(Failure of a Member State to fulfil its obligations Ð
                                                                            in Case C-268/97: Commission of the European
       Failure to transpose fully Directive 76/869/EEC)
                                                                                Communities v. Kingdom of Belgium (1)
                         (98/C 378/03)
                                                                     (Failure of a Member State to fulfil its obligations Ð
                                                                                Directive 86/609/EEC)
              (Language of the case: Portuguese)
                                                                                (98/C 378/04)
  (Provisional translation; the definitive translation will be                       (Language of the case: French)
           published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-229/97: Commission of the European                                   published in the European Court Reports)
Communities (Agent: Francisco de Sousa Fialho) v.
Portuguese Republic (Agents: Luis Fernandes and JoaÄo
Lopes Fernandes) Ð Application for a declaration that, by            In Case C-268/97: Commission of the European
failing to adopt within the prescribed period the laws,              Communities (Agents: Hendrik van Lier and Lena Ström)
regulations and administrative provisions necessary to               v. Kingdom of Belgium (Agent: Jan Devadder) Ð
comply with Council Directive 79/869/EEC of 9 October                Application for a declaration that, by not adopting within
1979 concerning the methods of measurement and                       the prescribed period all the measures necessary to comply
frequencies of sampling and analysis of surface water                with Articles 14 and 22 of Council Directive 86/609/EEC
intended for the abstraction of drinking water in the                of 24 November 1986 on the approximation of laws,
Member States (OJ L 271, 29.10.1979, p. 44), and, in the             regulations and administrative provisions of the Member
alternative, by not informing the Commission of those                States relating to the protection of animals used for


title: Case F-124/07: Action brought on 23 October 2007 — Behmer v Parliament

text:
               26.1.2008

               EN

               Official Journal of the European Union

               C 22/56

         Action brought on 23 October 2007 — Behmer v Parliament
   (Case F-124/07)
   (2008/C 22/109)
   Language of the case: French
   Parties

      Applicant: Joachim Behmer (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: European Parliament
   Form of order sought

               —

               Annul the decision of the appointing authority of the European Parliament awarding two promotion points to the applicant for 2005;

               —

               Annul the decision of the appointing authority not to promote the applicant to grade AD 13 in 2006;

               —

               Order the defendant to pay the costs.

         Pleas in law and main arguments
   The applicant, an official at the European Parliament in grade AD 12, alleges above all the unlawfulness of the decisions of the appointing authority, firstly, to award the applicant two promotion points for 2005 and, secondly, not to promote him to grade AD 13 in 2006.
   The applicant submits that there was a manifest error of assessment, breach of the duty to state reasons, breach of point I.6 of the implementing measures relating to the attribution of promotion points and promotion and breach of the general principles that recruited officials are entitled to reasonable career prospects and of equal treatment.
   In particular, he submits that there is infringement of Article 45 and Article 110(1) of the Staff Regulations, and puts forward pleas of illegality and of breach of the principle of the protection of legitimate expectations.
   Finally, the applicant claims that he suffered discrimination because of his activities representing the staff, in breach of Article 1d and of Article 24b of the Staff Regulations, of the sixth paragraph of Article 1 of Annex II to the Staff Regulations and of Article 17 of the framework agreement of 12 July 1990 between the European Parliament and the trade unions or professional organisations of the staff of the institution.


               17.4.2004

               EN

               Official Journal of the European Union

               C 94/36

         Removal from the register of Case C-137/03 (1)

   (2004/C 94/102)
   By order of 19 January 2004 the President of the Court of Justice of the European Communities ordered the removal from the register of Case C-137/03: Commission of the European Communities v Hellenic Republic.

      (1)  OJ C 112 of 10.05.2003.


title: Case C-182/12: Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 19 April 2012 — Gábor Fekete v Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

text:
               21.7.2012

               EN

               Official Journal of the European Union

               C 217/6

         Reference for a preliminary ruling from the Székesfehérvári Törvényszék (Hungary) lodged on 19 April 2012 — Gábor Fekete v Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága
   (Case C-182/12)
   2012/C 217/10
   Language of the case: Hungarian

      Referring court

   Székesfehérvári Törvényszék

      Parties to the main proceedings

      Applicant: Gábor Fekete

      Defendant: Nemzeti Adó- és Vámhivatal Középdunántúli Regionális Vám- és Pénzügyőri Főigazgatósága

      Question referred

   Under Article 561(2) of Commission Regulation (EEC) No 2454/93 (1) of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (‘the implementing Regulation’) is authorisation granted by the owner of the means of transport established outside the (customs) territory sufficient to establish private use of the means of transport or is private use of the means of transport only possible in the framework of an employment relationship, and thus where provided for (by the owner) in the contract of employment?

      (1)  Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code; OJ L 253, 11.10.1993, p. 1.


title: Case C-546/08: Judgment of the Court (Seventh Chamber) of 11 June 2009 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — Directive 2005/60/EC — Prevention of the use of the financial system for the purpose of money laundering and terrorist financing — Failure to transpose within the prescribed period)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/23

         Judgment of the Court (Seventh Chamber) of 11 June 2009 — Commission of the European Communities v Kingdom of Sweden
   (Case C-546/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 2005/60/EC - Prevention of the use of the financial system for the purpose of money laundering and terrorist financing - Failure to transpose within the prescribed period)
   2009/C 180/39
   Language of the case: Swedish

      Parties

      Applicant: Commission of the European Communities (represented by: P. Dejmek and M. Sundén, Agents)

      Defendant: Kingdom of Sweden (represented by: A. Falk, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to adopt, within the prescribed period, the measures necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ 2005 L 309, p. 15)

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt, within the prescribed period, the laws, regulations and administrative provisions necessary to comply with Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing, the Kingdom of Sweden has failed to fulfil its obligations under Article 45(1) of that directive;

               2.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 32, 7.2.2009.


title: Case T-555/11: Action brought on 26 October 2011 — tesa v OHIM — Superquimica (tesa TACK)

text:
               7.1.2012

               EN

               Official Journal of the European Union

               C 6/21

         Action brought on 26 October 2011 — tesa v OHIM — Superquimica (tesa TACK)
   (Case T-555/11)
   2012/C 6/38
   Language in which the application was lodged: English

      Parties

      Applicant: tesa SE (Hamburg, Germany) (represented by: F. Schwab, lawyer)

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

      Other party to the proceedings before the Board of Appeal: La Superquimica, SA (L’Hospitalet de Llobregat, Spain)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 5 July 2011 in case R 866/2010-1, and annul the decision of the Opposition Division in case No B 1301987; and

               —

               Order the defendant to bear the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘tesa TACK’, for goods in class 16 — Community trade mark application No 6233506

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Spanish trade mark registration No 585323 of the word mark ‘TACK’, for goods in class 16; Spanish trade mark registration No 2515958 of the figurative mark ‘TACK Ceys’, for goods in class 16

      Decision of the Opposition Division: Upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Council Regulation No 207/2009, as the Board of Appeal wrongly assessed the existence of likelihood of confusion between the opposing marks.


title: Case C-46/08: Judgment of the Court (Grand Chamber) of 8 September 2010 (reference for a preliminary ruling from the Schleswig Holsteinisches Verwaltungsgericht (Germany)) — Carmen Media Group Ltd v Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein (Article 49 EC — Freedom to provide services — Holder of a licence issued in Gibraltar authorising the collection of bets on sporting competitions only abroad — Organisation of bets on sporting competitions subject to a public monopoly at Land level — Objective of preventing incitement to squander money on gambling and combating gambling addiction — Proportionality — Restrictive measure to be genuinely aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner — Other games of chance capable of being offered by private operators — Authorisation procedure — Discretion of the competent authority — Prohibition on offering games of chance via the internet — Transitional measures provisionally authorising such an offer by certain operators)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/8

      Judgment of the Court (Grand Chamber) of 8 September 2010 (reference for a preliminary ruling from the Schleswig Holsteinisches Verwaltungsgericht (Germany)) — Carmen Media Group Ltd v Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein
      (Case C-46/08) (1)

      (Article 49 EC - Freedom to provide services - Holder of a licence issued in Gibraltar authorising the collection of bets on sporting competitions only abroad - Organisation of bets on sporting competitions subject to a public monopoly at Land level - Objective of preventing incitement to squander money on gambling and combating gambling addiction - Proportionality - Restrictive measure to be genuinely aimed at reducing opportunities for gambling and limiting gambling activities in a consistent and systematic manner - Other games of chance capable of being offered by private operators - Authorisation procedure - Discretion of the competent authority - Prohibition on offering games of chance via the internet - Transitional measures provisionally authorising such an offer by certain operators)
      (2010/C 288/13)
      Language of the case: German

         Referring court

      Schleswig-Holsteinisches Verwaltungsgericht

         Parties to the main proceedings

         Applicant: Carmen Media Group Ltd

         Defendants: Land Schleswig-Holstein, Innenminister des Landes Schleswig-Holstein

         Re:

      Reference for a preliminary ruling — Schleswig-Holsteinisches Verwaltungsgericht — Interpretation of Art. 49 EC — National legislation establishing a State monopoly on the organisation of sporting bets and lotteries with a significant risk of dependency, making the grant of authorisations for the organisation of other games of chance subject to the discretion of the public authorities, and prohibiting the organisation of games of chance on the internet

         Operative part of the judgment

                  1.

                  On a proper interpretation of Article 49 EC, an operator wishing to offer via the internet bets on sporting competitions in a Member State other than the one in which it is established does not cease to fall within the scope of the said provision solely because that operator does not have an authorisation permitting it to offer such bets to persons within the territory of the Member State in which it is established, but holds only an authorisation to offer those services to persons located outside that territory.

                  2.

                  On a proper interpretation of Article 49 EC, where a regional public monopoly on sporting bets and lotteries has been established with the objective of preventing incitement to squander money on gambling and of combating gambling addiction, and yet a national court establishes at the same time:

                              —

                              that other types of games of chance may be exploited by private operators holding an authorisation; and

                              —

                              that in relation to other games of chance which do not fall within the said monopoly and which, moreover, pose a higher risk of addiction than the games which are subject to that monopoly, the competent authorities pursue policies of expanding supply, of such a nature as to develop and stimulate gaming activities, in particular with a view to maximising revenue derived from the latter;

                        that national court may legitimately be led to consider that such a monopoly is not suitable for ensuring the achievement of the objective for which it was established by contributing to reducing the opportunities for gambling and to limiting activities within that area in a consistent and systematic manner.
                  The fact that the games of chance subject to the said monopoly fall within the competence of the regional authorities, whereas those other types of games of chance fall within the competence of the federal authorities, is irrelevant in that respect.

                  3.

                  On a proper interpretation of Article 49 EC, where a system of prior administrative authorisation is established in a Member State as regards the supply of certain types of gambling, such a system, which derogates from the freedom to provide services guaranteed by Article 49 EC, is capable of satisfying the requirements of that latter provision only if it is based on criteria which are objective, non-discriminatory and known in advance, in such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. Furthermore, any person affected by a restrictive measure based on such a derogation must have an effective judicial remedy available to them.

                  4.

                  On a proper interpretation of Article 49 EC, national legislation prohibiting the organisation and intermediation of games of chance on the internet for the purposes of preventing the squandering of money on gambling, combating addiction to the latter and protecting young persons may, in principle, be regarded as suitable for pursuing such legitimate objectives, even if the offer of such games remains authorised through more traditional channels. The fact that such a prohibition is accompanied by a transitional measure such as that at issue in the main proceedings is not capable of depriving the said prohibition of that suitability.

         (1)  OJ C 128, 24.5.2008.


title: Case C-499/08: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 19 November 2008 — Ingeniørforeningen i Danmark for Ole Andersen v Region Syddanmark

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/17

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 19 November 2008 — Ingeniørforeningen i Danmark for Ole Andersen v Region Syddanmark
   (Case C-499/08)
   (2009/C 19/31)
   Language of the case: Danish
   Referring court
   Vestre Landsret
   Parties to the main proceedings

      Applicant: Ingeniørforeningen i Danmark for Ole Andersen

      Defendant: Region Syddanmark
   Question referred
   Is the prohibition of direct or indirect discrimination on grounds of age contained in Articles 2 and 6 of Council Directive 2000/78/EC (1) to be interpreted as precluding a Member State from maintaining a legal situation whereby an employer, upon dismissal of a salaried employee who has been continuously employed in the same undertaking for 12, 15 or 18 years, must, upon termination of the salaried employee's employment, pay an amount equivalent to one, two or three months' salary respectively, but as meaning that this allowance is not to be paid where the salaried employee, upon termination of employment, is entitled to receive an old-age pension from a pension scheme to which the employer has contributed?

      (1)  OJ L 303, 2.12.2000, p. 16.


title: Case T-42/07: Judgment of the General Court of 13 July 2011 — Dow Chemical and Others v Commission (Competition — Agreements, decisions and concerted practices — Market in butadiene rubber and emulsion styrene butadiene rubber — Decision finding an infringement of Article 81 EC — Imputability of the offending conduct — Fines — Gravity and duration of the infringement — Aggravating circumstances)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/42

         Judgment of the General Court of 13 July 2011 — Dow Chemical and Others v Commission
   (Case T-42/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in butadiene rubber and emulsion styrene butadiene rubber - Decision finding an infringement of Article 81 EC - Imputability of the offending conduct - Fines - Gravity and duration of the infringement - Aggravating circumstances)
   2011/C 269/91
   Language of the case: English

      Parties

      Applicants: The Dow Chemical Company (Midland, Michigan, United States); Dow Deutschland Inc. (Schwalbach, Germany); Dow Deutschland Anlagengesellschaft mbH (Schwalbach); and Dow Europe GmbH (Horgen, Switzerland) (represented initially by: D. Schroeder, P. Matthey and T. Graf, and subsequently by D. Schroeder and T. Graf, lawyers)

      Defendant: European Commission (represented initially by: M. Kellerbauer, V. Bottka and J. Samnadda, and subsequently by M. Kellerbauer, V. Bottka and V. Di Bucci, Agents)

      Re:

   Application for annulment, so far as The Dow Chemical Company is concerned, of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) or annulment, so far as Dow Deutschland Inc. is concerned, of Article 1 of that decision or reduction, so far as all the applicants are concerned, of the fine imposed on them.

      Operative part of the judgment

   The Court:

               1.

               Annuls Article 1(b) of Commission Decision C(2006) 5700 final of 29 November 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.638 — Butadiene Rubber and Emulsion Styrene Butadiene Rubber) in so far as Dow Deutschland Inc. is found to have participated in the infringement at issue from 1 July 1996 to 27 November 2001 instead of from 2 September 1996 to 27 November 2001;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders The Dow Chemical Company, Dow Deutschland, Dow Deutschland Anlagengesellschaft mbH and Dow Europe GmbH to bear their own costs and to pay nine tenths of the costs incurred by the European Commission;

               4.

               Orders the Commission to bear one tenth of its own costs.

      (1)  OJ C 82, 14.4.2007.


title: Case T-236/10: Action brought on 21 May 2010 — Asociación Española de Banca v Commission

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/31

         Action brought on 21 May 2010 — Asociación Española de Banca v Commission
   (Case T-236/10)
   2010/C 195/49
   Language of the case: Spanish

      Parties

      Applicant: Asociación Española de Banca (Madrid, Spain) (represented by: J. Buendía Sierra, E. Abad Valdenebro, M. Muñoz de Juan and R. Calvo Salinero, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul Article 1(1) of the contested decision inasmuch as it declares that Article 12(5) of the consolidated text of the Law on Corporation Tax (texto refundido de la Ley del Impuesto sobre Sociedades, TRLIS) involves State aid elements;

               —

               in the alternative, annul Article 1(1) inasmuch as it declares that Article 12(5) TRLIS involves State aid elements when it applies to acquisitions of shares which entail the acquisition of control;

               —

               in the alternative, annul Article 4 inasmuch as it applies the recovery order to operations which occurred prior to the publication in the Official Journal of the European Union of the final decision which is the object of the present action, and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   The decision against which these proceedings are brought is the same as that contested in Cases T-219/10 Autogrill España v Commission; T-221/10 IBERDROLA v Commission; and T-225/10 BANCO BILBAO VIZCAYA ARGENTARIA v Commission.
   The pleas in law and the principal arguments are similar to those relied on in those cases.


title: Case C-36/12 P: Appeal brought on 25 January 2012 by Armando Álvarez, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-78/06 Álvarez v Commission

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/16

         Appeal brought on 25 January 2012 by Armando Álvarez, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 16 November 2011 in Case T-78/06 Álvarez v Commission
   (Case C-36/12 P)
   2012/C 89/25
   Language of the case: Spanish

      Parties

      Appellant: Armando Álvarez, S.A (represented by: E. Garayar Gutiérrez and M. Troncoso Ferrer, abogados)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Declare the present appeal admissible.

               —

               Set aside the judgment of the General Court of the European Union of 16 November 2011 in Case T-78/06 Álvarez v Commission and, consequently, annul Commission Decision C(2005) 4634 final of 30 November 2005 in Case COMP/F/38.354 in so far as liability is attributed to Armando Álvarez, S.A.

               —

               Order the Commission to pay the costs of both sets of proceedings.

      Grounds of appeal and main arguments

               1.

                     Main ground of appeal
                  , alleging an error of law and infringement of the rights of the defence in the analysis of whether liability for the infringement could be attributed to the appellant.
               The General Court attributed liability for the infringement to Armando Álvarez as a direct participant in the cartel, thereby upholding not only fresh pleas in law, but also grounds for attributing liability to Armando Álvarez different from the ground established in the contested decision. In addition, the General Court rejected the arguments in the application, holding that they were insufficient to rebut the presumption that Armando Álvarez exercised actual control over its subsidiary. However, since there was no presumption, in the Commission’s decision, to the effect that the appellant exercised actual control over the subsidiary, it was not for the appellant to rebut such a presumption, but rather the burden of proof rested entirely upon the Commission.
               In so doing, the General Court misapplied the concepts of participation in an infringement and the attribution of such participation, and infringed the appellant’s rights of defence.

               2.

                     Alternative ground of appeal
                  , alleging failure to provide reasons in relation to the arguments that Armando Álvarez lacked actual control over Aspla.
               Alternatively, if liability must be attributed to Armando Álvarez directly for infringement of Article 101 TFEU, and the presumption of parent-subsidiary liability applied, quod non, the General Court simply held that the arguments relied on by Armando Álvarez did not call in question its liability, without assessing the arguments actually put forward in the application for annulment. Consequently, the appellant submits that there is a clear failure to state reasons in the judgment under appeal.


title: Case C-328/07: Action brought on 13 July 2007 — Commission of the European Communities v Grand Duchy of Luxembourg

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/28

         Action brought on 13 July 2007 — Commission of the European Communities v Grand Duchy of Luxembourg
   (Case C-328/07)
   (2007/C 211/53)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: W. Wils, acting as Agent)

      Defendant: Grand Duchy of Luxembourg
   Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (1), or in any event by not communicating them to the Commission, the Grand Duchy of Luxembourg has failed to fulfil its obligations under that directive;

               —

               order the Grand Duchy of Luxembourg to pay the costs.

         Pleas in law and main arguments
   The period for the transposition of Directive 2004/48/EC into domestic law expired on 29 April 2006.

      (1)  OJ 2004 L 157, p. 45, and corrigendum OJ 2004 L 195, p. 16.


title: Case C-534/06: Reference for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 27 December 2006 — Industria Lavorazione Carni Ovine v Regione Lazio

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/19

         Reference for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 27 December 2006 — Industria Lavorazione Carni Ovine v Regione Lazio
   (Case C-534/06)
   (2007/C 42/35)
   Language of the case: Italian
   Referring court
   Corte suprema di cassazione
   Parties to the main proceedings

      Applicant: Industria Lavorazione Carni Ovine

      Defendant: Regione Lazio
   Question referred
   Must Article 13 of Council Regulation (EEC) No 866/90 (1) of 29 March 1990 be interpreted as meaning that financing must be excluded in cases in which, notwithstanding implementation of the specific programme for which the financing was obtained, the marketing and/or processing (in addition) of products which are not from the Community takes place along with the marketing and/or processing of products from the Community in the amounts required by the programme.

      (1)  OJ L 91, p. 1.


title: Case C-140/99: Action brought on 20 April 1999 by the Commission of the European Communities against the French Republic

text:
C 174/2                EN                    Official Journal of the European Communities                                        19.6.1999
Would the answer be different if, before the product was                     States concerning the pursuit of television broadcasting
reimported into the Community, the purchaser in the non-                     activities, (1) and under Article 59 of the Treaty;
member country sold it to an undertaking with which he
was personally and commercially connected, which is also                     — by failing to adopt within the prescribed period the
established in that non-member country?                                          laws, regulations and administrative provisions needed
                                                                                to comply in full with Article 22 of Direc-
                                                                                tive 89/522/EEC,
                                                                             — by providing that rules different from those applicable
                                                                                to the broadcasting of services intended for the public
                                                                                in France are to apply to satellite broadcasting of
Reference for a preliminary ruling from the Sozialgericht                        audiovisual communication services in foreign
(Social Court), Münster, by order of that court of 12 March                      languages, and
1999 in the case of Carl Borawitz v Landesversicherungs-
anstalt Westfalen, joined party: Federal Republic of Germ-                   — by not adopting measures to ensure that television
                               any                                               services using a frequency not managed by the Conseil
                                                                                Supérieur de l’Audiovisuel comply with the law appli-
                         (Case C-124/99)                                         cable to the broadcasting of services intended for the
                                                                                public in France,
                         (1999/C 174/03)
                                                                             the French Republic has failed to fulfil its obligations under
Reference has been made to the Court of Justice of the                       Directive 89/522/EEC, in particular Articles 2(1), 22 and
European Communities by an order of the Sozialgericht (Social                25 thereof;
Court), Tenth Chamber, Münster, of 12 March 1999, which                 2. Order the French Republic to pay the costs.
was received at the Court Registry on 14 April 1999, for a
preliminary ruling in the case of Carl Borawitz v Landesversich-
erungsanstalt Westfalen, joined party: Federal Republic of              Pleas in law and main arguments
Germany, on the following question:
                                                                        The Commission makes five charges against the French rules.
Is Paragraph 118(2a) of the Sixth Book of the Sozialgesetzbuch          The first two concern France as a receiving country and the
(Code of Social Law, ‘SGB VI’) incompatible with European               last three as a country of establishment.
Community law, in particular the principle of equal treatment,
in so far as the limitation on pension back payments is greater         First, Law 86-1067 of 30 September 1986 on freedom of
when payment is made abroad?                                            communication introduces, for retransmission of television
                                                                        broadcasts on French territory, an obligation to conclude an
                                                                        agreement with the Conseil Supérieur de l’Audiovisuel.
                                                                        The application of such a system of prior authorisation for
                                                                        television broadcasting services falling within the jurisdiction
Action brought on 20 April 1999 by the Commission of                    of another Member State is incompatible with Article 59 of
 the European Communities against the French Republic                   the EC Treaty or with Article 2(2) of the abovementioned
                                                                        directive to the extent to which that agreement relates to
                         (Case C-140/99)                                matters coordinated by the directive.
                         (1999/C 174/04)                                Second, it is apparent form Article 4 of Decree 92-882 of
                                                                        1 September 1992, which was adopted for the implementation
An action against the French Republic was brought before the            of certain provisions of the abovementioned law, that the
Court of Justice of the European Communities on 20 April                latter have been made applicable to services broadcast from
1999 by the Commission of the European Communities,                     France and, for their distribution by cable, to the services
represented by Karen Banks, of its Legal Service, acting as             which have established their broadcasting activities outside
Agent, with an address for service in Luxembourg at the office          France for the sole purpose of avoiding the rules which would
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                  otherwise apply to them.
The Commission of the European Communities claims that                  The criterion chosen as the basis for French jurisdiction,
the Court should:                                                       namely ‘services broadcast’, is not precise enough; only a
                                                                        criterion based on the establishment of the service in question
1. Declare that,                                                        may, according to the case-law, be used. Moreover, that
                                                                        provision also leads to the result that a service may not be
    — by keeping in force a system of prior authorisation for           established outside France, thereby limiting the freedom to
        the retransmission on French territory of television            provide services.
        broadcasts from other Member States, whereby an
        agreement must be concluded with the Conseil Supérie-           Third, the French legislation only incompletely transposes
        ur de l’Audiovisuel, and                                        Article 22 of the directive concerning measures to be taken for
                                                                        the protection of minors. First, the measures put into effect by
    — by keeping force Article 4 of Decree 91-882,
                                                                        the French legislation do not cover television broadcasting
    the French Republic has failed to fulfil its obligations under      services falling within French jurisdiction but not using any
    Article 2(2) of Council Directive 89/552/EEC of 3 October           French network (terrestrial, cable or satellite). Second, the
    1989 on the coordination of certain provisions laid down            measures do not have sufficient binding force, since they
    by law, regulation or administrative action in Member               merely impose penalties.
 ---pagebreak--- 19.6.1999               EN                     Official Journal of the European Communities                                        C 174/3
Fourth, Article 31(3) of the abovementioned law provides that             Contentions and principal arguments adduced in support
inter alia the obligations relating to advertising and sponsorship
do not apply to services broadcast solely in a foreign language           The Commission’s objections related inter alia to the fact that
without French sub-titles. Thus, those services, although within          although Article 6(3)(e) of Regulation (EEC) No 1558/91 (2)
French jurisdiction, are not subject to the obligations deriving          provides that the minimum price to be paid to the producer
from the directive. France, however, is required under Article            for raw materials is not to include costs connected with
2(1) of the directive to exercise control over such services.             transport, the Commission services found that the producers
                                                                          were required to pay a part of that expenditure (35%).
Fifth, no implementing measure has been adopted to make                   According to the Commission, that was contrary to the
the provisions of the directive applicable to services using              provisions of the regulations in that such conduct amounted
frequencies not managed by the Conseil Supérieur de l’Audiovi-            to non-observance of the minimum price to be paid to the
suel, even if their broadcasts are intended for the public in             producer for the raw material delivered.
France.
                                                                          The national legislation on payments for tomatoes and trans-
                                                                          port costs was contained, as far as the 1996/97 marketing year
(1) OJ L 298 of 17.10.1989, p. 23.                                        was concerned, in an interprofessional agreement approved
                                                                          and confirmed in accordance with Italian Law No 88/1998,
                                                                          with which the Commission must have been entirely familiar.
                                                                          The Italian authorities made it clear that in the abovementioned
                                                                          agreement, considering that almost all the tomato containers
                                                                          were owned by the processing undertakings, the farmers had
                                                                          accepted a maximum of 35% of the documented cost of the
Action brought on 21 April 1999 by the Italian Republic                   overall transport, including carriage of the raw material from
    against Commission of the European Communities                        the place of harvest to the processing undertaking (at the
                                                                          latter’s expense) in order to cover both reimbursement of the
                         (Case C-146/99)                                  cost of the crates and bins which were liable to be broken and,
                                                                          therefore, would need to be replaced, and that of distributing
                                                                          those containers to the places of harvest. The Italian authorities
                         (1999/C 174/05)
                                                                          also state that the payments of the minimum price for the
                                                                          product were all made entirely in accordance with Community
An action against the Commission of the European Communi-                 legislation and that, when the EAGGF had so requested, the
ties was brought before the Court of Justice on 21 April 1999             relevant files had been made available to it.
by the Italian Republic, represented by Danilo Del Gaizo,
Avvocato dello Stato, with an address for service in Luxem-
bourg at the Italian Embassy, 5 Rue Marie-Adélaïde.                       (1) Decision 1999/186/ec — OJ 1999 L 61 of 10.3.99, p. 34.
                                                                          (2) OJ 1991 L 144 of 8.6.91, p. 31.
The applicant claims that the Court should:
— Annul Commission Decision C(99) 208 Final of 3 February
     1999 (1) which excludes from Community financing cer-
     tain expenditure incurred by the Member States in respect
     of the Guarantee Section of the European Agricultural                       Removal from the register of Case C-334/98 (1)
     Guidance and Guarantee Fund (EAGGF) to the extent
     to which, in determining the total italian expenditure                                       (1999/C 174/06)
     chargeable to the Fund, it made financial adjustments to
     the detriment of Italy, declaring not to be chargeable to
                                                                          By order of 12 March 1999 the President of the Court of
     the Fund the sum of ITL 7 421 939 820 for aid for
                                                                          Justice of the European Communities ordered the removal
     the processing of tomatoes — incomplete payment of
                                                                          from the register of Case C-334/98: Commission of the
     transport costs to tomato producers (item 4.6.8 of the
                                                                          European Communities v Italy.
     summary report for 1995) —, and
— order the Commission to pay the costs.                                  (1) OJ C 327 of 24.10.1998.


title: Case C-53/11 P: Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/10

         Appeal brought on 7 February 2011 by the Office for Harmonisation in the Internal Market against the judgment of the General Court (Fourth Chamber) delivered on 24 November 2010 in Case T-137/09 Nike International v OHIM — Muñoz Molina (R 10)

   (Case C-53/11 P)
   2011/C 152/17
   Language of the case: Spanish

      Parties

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

      Other parties to the proceedings: Nike International Ltd., Aurelio Muñoz Molina

      Form of order sought

               —

               That the Court set aside the judgment under appeal.

               —

               That the Court deliver a fresh judgment on the substance, rejecting the appeal against the contested decision, or refer the case back to the General Court.

               —

               That the Court order the applicant [before the General Court] to pay the costs.

      Pleas in law and main arguments

   1.   Infringement of Rule 49 of the CTMIR
       (1)
      and Article 59 of the CTMR
       (2)

   The legal basis of the contested decision is Rule 49(1) of the CTMIR, in relation to the current Article 59 of the CTMR. However, the judgment under appeal makes no reference at any point either to Rule 49(1) of the CTMIR or to Article 59 of the CTMR, and makes no ruling on their applicability to the particular case. OHIM considers that that constitutes an error of law and a failure to state sufficient reasons.
   2.   Infringement of the OHIM Guidelines and Rule 49(1) of the CTMIR

   OHIM considers that its Guidelines are not applicable to the particular case. Nevertheless, the judgment under appeal states on two occasions that the Boards of Appeal are obliged to apply the OHIM Guidelines. That constitutes, in OHIM’s opinion, an error of law.

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark

      OJ 1995 L 303, p. 1

      (2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark

      OJ 1994 L 11, p. 1