title: Case C-343/14 P: Appeal brought on 15 July 2014 by Adler Modemärkte AG against the judgment of the General Court (Ninth Chamber) delivered on 14 May 2014 in Case T-160/12 Adler Modemärkte AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               6.10.2014

               EN

               Official Journal of the European Union

               C 351/3

         Appeal brought on 15 July 2014 by Adler Modemärkte AG against the judgment of the General Court (Ninth Chamber) delivered on 14 May 2014 in Case T-160/12 Adler Modemärkte AG v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-343/14 P)
   2014/C 351/04
   Language of the case: German

      Parties

      Appellant: Adler Modemärkte AG (represented by: J.-C. Plate, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Blufin SpA

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment under appeal,

               —

               refer the case back to the General Court,

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

      Pleas in law and main arguments

   The appeal is against the judgment of the General Court of 14 May 2014 in Case T-160/12, in which the General Court dismissed the action brought by Adler Modemärkte AG against the decision of the Second Board of Appeal of OHIM of 3 February 2012 (Case R 1955/2010-2) relating to opposition proceedings between Blufin SpA and Adler Modemärkte AG.
   The appellant raises the following grounds of appeal:

               1.

               First, an infringement of Article 8(1)(b) of the Community Trade Mark Regulation (40/94) is alleged. By deducing the similarity between the signs and the likelihood of confusion between the marks at issue from the similarity of elements of the signs — which correspond to a plainly descriptive indication for the condition of the goods (namely ‘navy blue’ as the colour indication for the goods utilised by the marks at issue) and, due to lack of inherent distinctive character, are not considered by the relevant public to be an indication of the commercial origin of the goods from a particular undertaking as distinguished from goods of other undertakings — the General Court misinterpreted that rule and the settled case-law on the determination of the similarity between the signs and the likelihood of confusion. In the present dispute, the General Court also misunderstood the legal concept of descriptive indication because it did not consider ‘navy blue’ to be descriptive for the description of the utilised goods — namely items of clothing — or an essential characteristic of the goods.

               2.

               Secondly, in the judgment under appeal the General Court proceeded on the basis of a distortion of the facts. The General Court denied the descriptive meaning of the indication ‘navy blue’ (in the respective national languages, in particular in Italian and French) for the goods in classes 18 and 25 in question although the signs at issue between the parties indisputably incorporate a term which plainly describes the goods — namely ‘navy blue’ in the respective languages of the European Union — and the opposition mark from the Italian ‘blu marino’ and the mark applied for from the French ‘bleu marine’ are in each case slightly modified by those terms. Furthermore, even the Opposition Division and the Board of Appeal of OHIM have positively established in previous administrative proceedings that ‘navy blue’ (in the respective European national languages) is a term which is descriptive of goods. The General Court is bound by that finding.

               3.

               Thirdly, the decision in the grounds of the judgment of the General Court with regard to the allegedly non-descriptive meaning of ‘navy blue’ is contradictory and shows a failure to state reasons. In paragraph 54, the General Court itself states that the elements of the signs at issue mean the shade in question. In paragraph 55, the General Court also states that that meaning is ‘obvious’.

               4.

               Fourthly, the contested decision was issued on the basis of inapplicable statutory regulations, namely the provisions of Regulation (EC) No 207/2009 (1). The applicable law is Regulation (EC) No 40/94 (2).

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark; OJ 2009 L 078, p. 1.

      (2)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark; OJ 1994 L 011, p. 1.


title: Case T-350/10: Action brought on 26 August 2010 — Milux v OHMI (HEARTCONTROL)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/53

      Action brought on 26 August 2010 — Milux v OHMI (HEARTCONTROL)
      (Case T-350/10)
      ()
      (2010/C 288/99)
      Language of the case: English

         Parties

         Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 2 July 2010 in case R 1437/2009-4;

                  —

                  Order the defendant to pay the costs.

         Pleas in law and main arguments

         Community trade mark concerned: The word mark ‘HEARTCONTROL’ for goods and services in classes 9, 10 and 44

         Decision of the examiner: Refused the application for a Community trade mark

         Decision of the Board of Appeal: Dismissed the appeal

         Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination to the facts in this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.


title: Case T-85/05: Order of the Court of First Instance of  13 January 2006  — Dimos Ano Liosion and Others v Commission (Inadmissibility — Persons not the addressees of Community measures — Direct concern)

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/19

         Order of the Court of First Instance of 13 January 2006 — Dimos Ano Liosion and Others v Commission
   (Case T-85/05) (1)

   (Inadmissibility - Persons not the addressees of Community measures - Direct concern)
   (2006/C 74/38)
   Language of the case: Greek
   Parties:

      Applicants: Dimos Ano Liosion (Greece), Theodora Goula, Argyris Argyropoulos, Ioannis Manis, Eleni Ntalipi, Vasilis Papagrigoriou and Giorgos Fragkalexis (Ano Liossia, Greece) (represented by: G. Kalavros, lawyer)

      Defendant: Commission of the European Communities (represented by: D. Triantafyllou and L. Flynn, Agents)
   Application for
   Annulment of Commission Decision E (2004) 5522 of 21 December 2004 concerning the grant of financial assistance by the Cohesion Fund for the project entitled 'Construction of Phase 1 of the second landfill site for waste in West Attica at ‘Skalistiri’ in the municipality of Fyli'.
   Operative part of the Order

               1.

               The application is dismissed as inadmissible.

               2.

               The applicants shall bear the costs of the proceedings, including those relating to the interim proceedings.

      (1)  OJ C 106, 30.4.2005.


title: Case T-198/13: Action brought on 8 April 2013 — Imax/OHIM — Himax Technologies (IMAX)

text:
               15.6.2013

               EN

               Official Journal of the European Union

               C 171/32

         Action brought on 8 April 2013 — Imax/OHIM — Himax Technologies (IMAX)
   (Case T-198/13)
   2013/C 171/60
   Language in which the application was lodged: English

      Parties

      Applicant: Imax Corporation (Mississauga, Canada) (represented by: V. von Bomhard, lawyer, and K. Hughes, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Himax Technologies, Inc. (Tainan County, Taiwan)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul OHIM’s Fifth Board of Appeal’s decision of 23 January 2013 in Case R 740/2012-5; and

               —

               Order that the costs of the proceedings be borne by the defendant and, if the other party in the proceedings before the Board of Appeal intervenes, the intervener.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘IMAX’ for goods in classes 9, 41 and 45 — Community trade mark registration No 9 392 556

      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: Community trade mark registrations No 4 411 658 and No 4 411 641 of the figurative mark ‘Himax’ for goods and services in classes 9 and 42

      Decision of the Opposition Division: Partially 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.


title: Case T-83/01: Action brought on 10 April 2001 by Merck KgaA against the Office for Harmonisation in the Internal Market

text:
16.6.2001              EN                     Official Journal of the European Communities                                      C 173/37
—     the contested decision is arbitrary and disproportionate,          Action brought on 1 April 2001 by the Association
      inasmuch as it does not analyse the possibility of                 Contre l’Horaire d’Été against the European Parliament
      excluding from its scope part of the Normas Forales                           and the Council of the European Union
      which it envisages.
—     the procedure laid down in the ‘Steel Aid Code’ was                                         (Case T-84/01)
      infringed, inter alia by exceeding the time-limit of
      3 months prescribed in Article 6(5) of Decision
      2496/96/ECSC.                                                                              (2001/C 173/67)
(1) OJ 2001 L 76, p. 57.
                                                                                (Language of the case: French)
                                                                         An action against the European Parliament and the Council of
                                                                         the European Union was brought before the Court of First
Action brought on 10 April 2001 by Merck KgaA against                    Instance of the European Communities on 1 April 2001 by
    the Office for Harmonisation in the Internal Market                  the Association Contre l’Horaire d’Été, established at Marly-le-
                                                                         Roi (France), represented by Corinne Lepage and François
                          (Case T-83/01)                                 Steinmetz, avocats.
                         (2001/C 173/66)
                                                                         The applicant claims that the Court should:
                   (Language of the case: English)
                                                                         —     annul Directive 2000/84/EC of the European Parliament
An action against the Office for Harmonisation in the Internal                 and of the Council of 19 January 2001 on summer-time
Market was brought before the Court of First Instance of the                   arrangements, published in the Official Journal of the
European Communities on 10 April 2001 by Merck KgaA, a                         European Communities on 2 February 2001.
company established under the laws of Germany, represented
by Dominique Dupuis Latour of BPDAGI, Paris (France).
                                                                         Pleas in law and main arguments
The applicant claims that the Court should:
—     set aside the contested decision;                                  The applicant in the present case, an association formed to
—     order the defendant to pay the costs.                              draw the attention of the public to the alleged drawbacks
                                                                         arising from ‘changing the clocks’, seeks annulment of Direc-
                                                                         tive 2000/84/EC of the European Parliament and of the
Pleas in law and main arguments:                                         Council of 19 January 2001 on summer-time arrangements.
Trade mark concerned:         OSTEOCALCIUM — registration
                              n. 0000955138.                             In support of its claims, the applicant maintains:
Product or service:           ‘Pharmaceutical; veterinary and
                              sanitary preparations’ (class 5 of         —     that the wrong legal basis has been chosen (Article 95 of
                              the Nice Agreement).                             the Treaty, formerly Article 100a), inasmuch as the
                                                                               directive at issue does not satisfy the twofold condition
Challenged        Decision    Refusal of registration of the trade             of participating in the approximation of the provisions
before the Board of           mark in question, because of its                 laid down by law, regulation or administrative action in
Appeal:                       alleged descriptive character.                   Member States and having as its objective the establish-
Grounds submitted:            Infringement of Article 7 (1) c)                 ment and functioning of the internal market;
                              and b) of Regulation (EC)
                              No 40/94.                                  —     that the directive at issue will result in drawbacks and
                                                                               dangers to individuals, which should be seen as obstacles
                                                                               to the proper functioning of the internal market.


title: Case C-435/15: Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 10 August 2015 — GROFA GmbH v Hauptzollamt Hannover

text:
               3.11.2015

               EN

               Official Journal of the European Union

               C 363/22

         Request for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 10 August 2015 — GROFA GmbH v Hauptzollamt Hannover
   (Case C-435/15)
   (2015/C 363/28)
   Language of the case: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicant: GROFA GmbH

      Defendant: Hauptzollamt Hannover

      Questions referred

               1.

                           (a)

                           Is Commission Implementing Regulation (EU) No 1249/2011 of 29 November 2011 concerning the classification of certain goods in the Combined Nomenclature (1) applicable by analogy to the products which are the subject of the main proceedings (GoPro HERO3 ‘Black Edition’, ‘Black Edition Surf’, and ‘Black Edition Motorsport’)?

                           (b)

                           If the answer to that question is in the affirmative:
                           Is Implementing Regulation (EU) No 1249/2011 valid?

               2.

               If the answer to question 1(a) or 1(b) is in the negative:

                           (a)

                           Is Commission Implementing Regulation (EU) No 876/2014 of 8 August 2014 concerning the classification of certain goods in the Combined Nomenclature (2) applicable by analogy to the products which are the subject of the main proceedings?

                           (b)

                           If the answer to that question is in the affirmative:
                           Is Implementation Regulation (EU) No 876/2014 valid?

               3.

               If the answer to question 1(a) or 1(b) is in the negative:
               Are the Commission’s Explanatory Notes to subheadings 8525 80 91 and 8525 80 99 of the Combined Nomenclature (3) to be interpreted as meaning that a sequence of video recorded in separate files each having a duration of less than 30 minutes is a recording of ‘at least 30 minutes in a single sequence of video’ if, when the recording is played, the viewer cannot perceive the switch between different files?

               4.

               If the answer to question 1(a) or 1(b) is in the negative, and the answer to questions 2(a), 2(b) and 3 is in the affirmative:
               Does the fact that video camera recorders which are able to record signals from external sources are not able to reproduce those signals on an external television receiver or an external monitor preclude their being classified under subparagraph 8525 80 99 CN?

      (1)  2011 OJ L 319, p. 39.

      (2)  2014 OJ L 240, p. 12.

      (3)  2015 OJ C 76, p. 1.


title: Case C-150/16: Judgment of the Court (Fifth Chamber) of 18 May 2017 (request for a preliminary ruling from the Curtea de Apel Craiova — Romania) — Fondul Proprietatea SA v Complexul Energetic Oltenia SA (Reference for a preliminary ruling — State aid — Debt owed to a company of which the Romanian State is the majority shareholder by a company of which that State is the sole shareholder — Transfer in lieu of payment — Definition of ‘State aid’ — Obligation to notify the European Commission)

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/14

         Judgment of the Court (Fifth Chamber) of 18 May 2017 (request for a preliminary ruling from the Curtea de Apel Craiova — Romania) — Fondul Proprietatea SA v Complexul Energetic Oltenia SA
   (Case C-150/16) (1)

   ((Reference for a preliminary ruling - State aid - Debt owed to a company of which the Romanian State is the majority shareholder by a company of which that State is the sole shareholder - Transfer in lieu of payment - Definition of ‘State aid’ - Obligation to notify the European Commission))
   (2017/C 239/18)
   Language of the case: Romanian

      Referring court

   Curtea de Apel Craiova

      Parties to the main proceedings

      Applicant: Fondul Proprietatea SA

      Defendant: Complexul Energetic Oltenia SA

      Operative part of the judgment

               1.

               In circumstances such as those in the main proceedings, the decision of a company of which a Member State is the main shareholder to accept, in order to extinguish a debt, a transfer in lieu of payment of an asset which is the property of another company of which that Member State is the only shareholder and to pay a sum corresponding to the difference between the estimated value of that asset and the amount of that debt is liable to constitute State aid within the meaning of Article 107 TFEU if:

                           —

                           that decision constitutes an advantage granted directly or indirectly by means of State resources and is imputable to the State,

                           —

                           the beneficiary undertaking has not obtained facilities comparable to a private creditor, and

                           —

                           that decision is liable to affect trade between the Member States and distort competition.

                     It is for the referring court to ascertain whether those conditions are met.

               2.

               If a national court classifies as State aid the decision of a company of which a Member State is the majority shareholder to accept a transfer in lieu of payment of an asset owned by another company of which that Member State is the sole shareholder, in order to extinguish a debt, and to refund a sum corresponding to the difference between the estimated value of that asset and the amount of the debt, the authorities of that Member State are required to notify that aid to the Commission before it is put into effect, in accordance with Article 108(3) TFEU.

      (1)  OJ C 200, 6.6.2016.


title: Case T-52/00: Action brought on 9 March 2000 by Coe Clerici Logistics SpA v Commission of the European Communities

text:
13.5.2000             EN                     Official Journal of the European Communities                                      C 135/23
The applicant seeks the annulment, in whole or in part, of this         Action brought on 9 March 2000 by Coe Clerici Logistics
decision in particular on the following grounds:                             SpA v Commission of the European Communities
                                                                                (Case T-52/00)
— As regards Article 2 of the decision, the supply contracts
    concluded by British Steel with Vallourec, Dalmine and
    MRW were not the result of an unlawful agreement or                                         (2000/C 135/42)
    collusion contrary to Article 81(1) and can be explained
    by the relevant commercial context in which they were
    concluded.
                                                                                (Language of the case: Italian)
                                                                        An action against the Commission of the European Communi-
— As regards Article 1, there is insufficient evidence to               ties was brought before the Court of First Instance on 9 March
    uphold a finding of infringement against British Steel from         2000 by Coe Clerici Logistics SpA, represented by Giuseppe
    (and including) 1991.                                               Michele Giacomini and Elisabetta Minozzi, of the Genoa Bar.
                                                                        The applicant claims that the Court of First Instance should:
— In any event, given the relevant commercial context, the
    gravity and extent of any participation by British Steel in
    the infringement would have been only minor such that a             — Annul the letter of 20 December 1999, reference D17482,
    significantly reduced fine would have been appropriate. If               of the European Commission, Competition DG;
    the infringement is upheld, the fine imposed in respect of
    it should therefore be significantly reduced.
                                                                        — Order the Commission to pay the costs.
— The Commission has based the duration of the Article 1
    infringement on an important factual error. The quota               Pleas in law and main arguments adduced in support
    arrangement implemented by the Japanese producers was
    authorised by the Japanese Ministry of International Trade
    and Industry until 1991, and not 1990 as stated in                  The applicant in this case takes exception to the defendant’s
    the decision. Accordingly, by its own reasoning, the                rejection of its complaint concerning the fact that on 30 March
    Commission should not have made a finding of infringe-              1999 the Port Authority of the Port of Ancona and Ancona
    ment before 1991. If the infringement is upheld, the fine           Merei S.C.p.A. prevented it from unloading coal, using its own
    imposed in respect of it should be reduced to reflect a             facilities, at quay No 25 in the port. That quay was the only
    shorter duration.                                                   one which the applicant could use since it was the only one
                                                                        equipped with a crane capable of unloading the goods. That
                                                                        refusal, in its view, constitutes an infringement of Article 86
                                                                        EC in conjunction with Article 82 EC.
— The Commission failed to satisfy the legal requirement to
    indicate in the Statement of Objections the essential factors
    defined in Article 15(2) of Regulation 17, and thereby              In support of its claims, the applicant alleges breach of the
    infringed British Steel’s rights of defence. The fine should        rights of the defence and of the principle of legal certainty, as
    therefore be annulled.                                              regards that part of the letter relating to the applicability of
                                                                        Commission Regulation (EC) No 2842/98 of 22 December
                                                                        1998 on the hearing of parties in certain proceedings under
                                                                        Articles 85 and 86 of the EC Treaty (1). It is alleged in that
— The Commission entirely failed to take into account British           connection, in particular, that Ancona Merci, the concession-
    Steel’s co-operation with the Commission, and thereby               aire for the quay at which it was sought to undertake unloading
    infringed British Steel’s legitimate expectations and also          operations, is an undertaking with exclusive rights which
    the principle of equal treatment. The fine should therefore         abused its dominant position in deciding whether or not a
    be reduced.                                                         third party should be allowed, using its own resources, to
                                                                        unload goods at the quay and it is the applicant’s sole or main
                                                                        competitor in the market for that activity.
                                                                        Also, the contested letter constitutes a final decision to shelve
                                                                        a complaint within the meaning of Council Regulation No 17,
                                                                        adopted in breach of the procedure laid down in Articles 6, 7
                                                                        and 8 of Regulation No 2842/98.
 ---pagebreak--- C 135/24               EN                     Official Journal of the European Communities                                      13.5.2000
The applicant also submits that the statement of reasons is              In support of her claims, she pleads:
defective and that no investigation was carried out, in so far as
the contested letter bases its statement that there was no abuse         — infringement of the general principle of equal treatment,
of a dominant position by Ancona Merci on the fact that quay                 and of Article 30 of the Staff Regulations and of Annex III
No 25 does not form part of an essential infrastructure within               thereto, in so far as, in the competition in question, there
the meaning of the case-law of the Court of Justice.                         was a second series of written tests for five new candidates.
                                                                             In addition, that competition was open to all members of
                                                                             temporary staff, whether remunerated from the appropri-
(1) OJ L 354 of 30.12.1998, p. 12.                                           ation for ‘research’ or from the appropriation for ‘adminis-
                                                                             tration’. A procedure in respect of appointment as estab-
                                                                             lished officials cannot be organised in the same way for
                                                                             staff under different budgetary terms.
                                                                         — infringement of the fifth paragraph of Article 5 of Annex
                                                                             III to the Staff Regulations and of the principles of having
                                                                             regard for the welfare of officials and of sound management
                                                                             and fair administration, and disregard for the interest of
Action brought on 9 March 2000 by Serena Angioli                             the service. The applicant claims, on that point, that
  against the Commission of the European Communities                         the competition jury selected a number of successful
                                                                             candidates which was lower than the number of posts
                                                                             available and that, in the present case, the jury did not
                         (Case T-53/00)                                      comply with the objective pursued by a recruitment
                                                                             procedure in respect of appointment as established
                        (2000/C 135/43)                                      officials: the appointment as established officials of persons
                                                                             such as to enable the institution to carry out its tasks.
                   (Language of the case: French)                        The applicant also cites the breach of the obligation to state
                                                                         reasons and the existence of a manifest error of assessment.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 9 March 2000 by Serena Angioli,
residing at Brussels, represented by Georges Vandersanden and
Laure Levi, of the Brussels Bar.
The applicant claims that the Court should:
— annul the decision of the jury for the internal competition            Action brought on 11 March 2000 by Federación de
    concerning the appointment as established officials of               Cofradı́as de Pescadores de Guipúzcoa, Federación de
    members of the temporary staff in category COM/TA/2/98               Cofradı́as de Pescadores de Vizcaya, Federación de Cofrad-
    not to include the applicant on the list of suitable                 ias de Peseadores de Cantabria and Others v Council of
    candidates;                                                                                the European Union
— annul all the other subsequent acts adopted by the                                              (Case T-54/00)
    abovementioned competition jury and by the appointing
    authority;
                                                                                (2000/C 135/44)
— in so far as is necessary, annul the decision of the
    appointing authority to reject the applicant’s complaint, a
    decision of 1 December 1999, notified on 7 December
    1999;                                                                                (Language of the case: Spanish)
— order the defendant to pay the costs.                                  An action against the Council of the European Union was
                                                                         brought before the Court of First Instance on 11 March 2000
                                                                         by Federación de Cofradı́as de Pescadores de Guipuzcoa,
Pleas in law and main arguments                                          Federación de Cofradı́as de Pescadores de Vizcaya, Federación
                                                                         de Cofradias de Pescadores de Cantabria and Others, which are
                                                                         registered in San Sebastifin, Bilbao and Santander, respectively,
The applicant contests her exclusion from the list of suitable           represented by Ramón Garcia-Gallardo and Marı́a Dolores
candidates drawn up following her participation in the tests             Domingues Pérez, of the Madrid and La Coruña Bars, respect-
for Competition COM/TA/99.                                               ively, with offices at 19 Square de Meeûs, Brussels.


title: Joined Cases C-213/11, C-214/11 and C-217/11: Judgment of the Court (Third Chamber) of 19 July 2012 (references for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku — Poland) — Fortuna sp. z o.o. (C-213/11), Grand sp. z o.o. (C-214/11), Forta sp. z o.o. (C-217/11) v Dyrektor Izby Celnej w Gdyni (Internal market — Directive 98/34/EC — Technical standards and regulations — Procedure for the provision of information in the field of technical standards and regulations — Low-prize gaming machines — Prohibition of the amendment, extension and issue of operating authorisations — Concept of ‘technical regulation’ )

text:
               29.9.2012

               EN

               Official Journal of the European Union

               C 295/12

         Judgment of the Court (Third Chamber) of 19 July 2012 (references for a preliminary ruling from the Wojewódzki Sąd Administracyjny w Gdańsku — Poland) — Fortuna sp. z o.o. (C-213/11), Grand sp. z o.o. (C-214/11), Forta sp. z o.o. (C-217/11) v Dyrektor Izby Celnej w Gdyni
   (Joined Cases C-213/11, C-214/11 and C-217/11) (1)

   (Internal market - Directive 98/34/EC - Technical standards and regulations - Procedure for the provision of information in the field of technical standards and regulations - Low-prize gaming machines - Prohibition of the amendment, extension and issue of operating authorisations - Concept of ‘technical regulation’)
   2012/C 295/19
   Language of the case: Polish

      Referring court

   Wojewódzki Sąd Administracyjny w Gdańsku

      Parties to the main proceedings

      Applicants: Fortuna sp. z o.o. (C-213/11), Grand sp. z o.o. (C-214/11), Forta sp. z o.o. (C-217/11)

      Defendant: Dyrektor Izby Celnej w Gdyni

      Re:

   References for a preliminary ruling — Wojewódzki Sąd Administracyjny w Gdańsku — Interpretation of Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Council Directive 2006/96/EC of 20 November 2006 (OJ 1998 L 204, p. 37) — Concept of ‘technical regulation’ — National provision prohibiting the amendment of an operating authorisation for low-prize gaming machines in respect of a change of the place in which those machines are installed

      Operative part of the judgment

   Article 1(11) of Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, as amended by Council Directive 2006/96/EC of 20 November 2006, must be interpreted as meaning that national provisions, such as those of the Law on games of chance (ustawa o grach hazardowich) of 19 November 2009, which could have the effect of limiting, or even gradually rendering impossible, the running of gaming on low-prize machines anywhere other than in casinos and gaming arcades are capable of constituting ‘technical regulations’, within the meaning of that provision, the drafts of which must be the subject of communication as provided for in the first subparagraph of Article 8(1) of the directive, in so far as it is established that those provisions constitute conditions which can significantly influence the nature or the marketing of the product concerned, which is a matter for the referring court to determine.

      (1)  OJ C 219, 23.7.2011.


title: Case C-365/99: Action brought on 4 October 1999 by the Portuguese Republic against the Commission of the European Communities

text:
18.12.1999               EN                   Official Journal of the European Communities                                      C 366/15
      Finally, the Commission should have cleared the notified           On a proper construction of Article 1 thereof, is Council
      measures in accordance with Article 87(2)(c) of the EC             Regulation (EC) No 3295/94 of 22 December 1994 laying
      Treaty. Despite knowledge of all the relevant. circum-             down measures to prohibit the release for free circulation,
      stances, the Commission passes over that provision with-           export, re-export or entry for a suspensive procedure of
      out a word of justification.                                       counterfeit and pirated goods (Official Journal of the European
                                                                         Communities L 341 of 30 December 1994) also applicable to
— Legally erroneous assumption of aid elements in the                    situations in which goods of the type specified therein are, in
      privatisation procedure: The Commission wrongly                    the course of transit between two countries not belonging to
      assumes, with reference to the case-law of the Court of            the European Community, temporarily detained by the cus-
      Justice (4), that in the sale/liquidation comparative cost         toms authorities in a Member State on the basis of that
      accounting only the liquidation value determined by the            regulation, at the request of a holder of rights who claims that
      accountants was to be taken into account. Under German             his rights have been infringed and whose undertaking has its
      law, however, the owner is responsible both for the                registered office in a non-member country?
      liquidation costs and the costs of restoring the site, and in
      this case the loans from shareholders could not be called
      in from the mass of the insolvency.
      The Commission’s criticism of the privatisation procedure
      expressed in the contested decision infringes the prohib-
      ition of contradictory conduct, since in many cases the
      Commission made on objection to comparable privatisa-
      tion procedures. Moreover, the Commission’s demands are
      not based on a realistic assessment even of the procedures
      that are normal even in the private sector for the disposal
      of shareholdings through the intervention of investment
      banks. The Federal Government therefore takes the view             Action brought on 4 October 1999 by the Portuguese
      that the privatisation as such does not contain any aids.          Republic against the Commission of the European Com-
      That is, however, ignored by the Commission. On this                                           munities
      point, moreover, insufficient grounds are stated for the
      decision (infringement of the fourth indent of the second
      subparagraph of Article 5 of the ECSC Treaty, Article 15                                   (Case C-365/99)
      of that treaty, and Article 253 of the EC Treaty).
                                                                                (1999/C 366/24)
( 1) OJ No C 320 of 13.12.1988, p. 3.
( 2) OJ No L 198 of 30.7.1999, p. 1.
( 3) OJ No L 128 of 21.5.1999, p. 1.                                     An action against the Commission of the European Communi-
( 4) Joined Cases C-278/92, C-279/92 and C-280/92 Spain v Com-
     mission (1994) ECR I-4103.
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 4 October 1999 by the Portuguese Republic,
                                                                         represented by Luı́s Fernandes, Director of the Legal Service of
                                                                         the Directorate-General for the European Communities of the
                                                                         Ministry of Foreign Affairs, and Maria João Abecassis, Assistant
                                                                         in the Private Office of the Minister for Agriculture, Rural
                                                                         Development and Fisheries, acting as Agents, and by Carlos
                                                                         Aguiar and Tiago Ferreira de Lima, of the Lisbon Bar, and
                                                                         Gerard van der Wal, of the Brussels Bar, with an address for
                                                                         service in Luxembourg at the Portuguese Embassy, 33 Allée
Reference for a preliminary ruling by the Landesgericht                  Scheffer.
Korneuburg (Austria) by order of that court of 17 Sep-
tember 1999 in the case of SEIKO Kabushiki Kaisha v
                        Mohammed Ibrahim
                                                                         The applicant claims that the Court should:
                          (Case C-362/99)
                                                                         a) declare the present action admissible;
                          (1999/C 366/23)
                                                                         b) annul Commission Decision 99/517/EC (1) in so far as it
Reference has been made to the Court of Justice of the                        replaced the words ‘1 August 1999’ in Article 4 of Decision
European Communities by order of the Landesgericht                            98/653/EC (2) with the words ‘1 February 2000’;
(Regional Court) Korneuburg (Austria) of 17 September 1999,
received at the Court Registry on 30 September 1999, for a
preliminary ruling in the case of SEIKO Kabushiki Kaisha v               c) order the Commission to pay the costs incurred by the
Mohammed Ibrahim on the following question:                                   Portuguese Republic.
 ---pagebreak--- C 366/16               EN                    Official Journal of the European Communities                                     18.12.1999
Pleas in law and main arguments                                         Reference for a preliminary ruling from the French
                                                                        Conseil d’État (Council of State), by order of that court of
                                                                        28 July 1999 in the case of Joseph Griesmar v Minister
                                                                        for Economic Affairs, Finance and Industry and Minister
Portugal is appealing the decision to extend the restriction on
                                                                         for the Civil Service, State Reform and Decentralisation
exports, laid down in Article 4 of Decision 98/653/EC, to
1 February 2000, adopted by the Commission by Decision
99/517/EC, on the following grounds:                                                              (Case C-366/99)
                                                                                (1999/C 366/25)
— Lack of statement of reasons or facts: the Commission was
     required to show that the extension of the period was
     justified and that the facts justify a derogation from             Reference has been made to the Court of Justice of the
     Article 28 of the EC Treaty. In view of the findings of the        European Communities by an order of the French Conseil
     mission of 14 to 18 June 1999, the Commission failed to            d’État, of 28 July 1999, which was received at the Court
     do so.                                                             Registry on 4 October 1999, for a preliminary ruling in the
                                                                        case of Joseph Griesmar v Minister for Economic Affairs,
                                                                        Finance and Industry and Minister for the Civil Service, State
— The decision is contrary to the Animal Health Code of the             Reform and Decentralisation on the following questions. The
     International Office of Epizootic Diseases: the Commission         French Council of State asks the Court of Justice to rule on the
     disregarded the Code in decisions 98/653/EC and                    following questions:
     99/517/EC. Contrary to Article 3.2.13.8 Portuguese
     exports of meat and meat products are totally prohibited           1. Are the pensions provided by the French retirement
     until 1 February 2000 despite the fact that Portugal, which             pension scheme for civil servants pay within the meaning
     falls within the category of countries with a low incidence             of Article 119 of the Treaty of Rome (now Article 141 of
     of BSE, observed the conditions laid down in                            the Treaty establishing the European Community)?
     Article 3.2.13.8.
                                                                             If so, in the light of the requirements of paragraph 3 of
                                                                             Article 6 of the agreement annexed to Protocol No 14 on
— Breach of essential procedural requirements and of the                     social policy, is the principle of equal pay breached by the
     principle of sound administrative practice: the Standing                provisions of Article L. 12(b) of the civil and military
     Veterinary Committee did not have access to all the                     retirement pensions code?
     relevant and recent information (in particular the ‘draft’
     findings of the mission of the Food and Veterinary Office          2. If Article 119 of the Treaty of Rome is not applicable, do
     (FVO-DG XXIV) of 14 to 18 June 1999 and Portugal’s                      the provisions of Directive 79/7/EEC of 19 December
     comments) which were made available to the Commission                   1978 (1) prevent France from maintaining in force pro-
     and/or should have been made available before the Stand-                visions such as Article L. 12(b) of the civil and military
     ing Veterinary Committee was consulted and before the                   retirement pensions code?
     decision was adopted to extend the period prescribed by
     Article 4 of Decision 98/653/EC.                                   (1) On the progressive implementation of the principle of equal
                                                                            treatment for men and women in matters of social security (OJ
                                                                            1979 L 6 of 10.1.1979, p. 24).
— Breach of the principle of proportionality: extension of the
     period prescribed in Article 4 of Decision 98/653/EC
     exceeds the limits of what is appropriate and necessary in
     view of the grounds and objectives of Decision 98/653/EC,
     regard being had to the situation in Portugal, the level of
     its exports of beef and meat products, and the policy of
     the Commission and the Community vis-à-vis the United
     Kingdom and Switzerland.                                           Reference for a preliminary ruling by the Landesgericht
                                                                        Korneuburg (Austria) by order of that court of 1 Septemb-
                                                                        er 1999 in the case of La Chemise Lacoste S.A. v Coalle
                                                                                FA-93
(1) Commission Decision 99/517/EC of July 1999 amending Decision
    98/653/EC concerning emergency measures made necessary by                                     (Case C-368/99)
    the occurrence of bovine spongiform encephalopathy in Portugal
    — OJ 1999 L 197, p. 45.
 2
                                                                                (1999/C 366/26)
( ) Decision 98/653/EC concerning emergency measures made
    necessary by the occurrence of bovine spongiform encephalopa-
    thy in Portugal — OJ 1998 L 311, p. 23.                             Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Landesgericht
                                                                        (Regional Court) Korneuburg (Austria) of 1 September 1999,
                                                                        received at the Court Registry on 4 October 1999, for a
                                                                        preliminary ruling in the case of La Chemise Lacoste S.A. v
                                                                        Coalle FA-93 on the following question:


title: Case T-255/04: Action brought on 21 June 2004 by Monique Negenman against Commission of the European Communities

text:
               11.9.2004

               EN

               Official Journal of the European Union

               C 228/43

         Action brought on 21 June 2004 by Monique Negenman against Commission of the European Communities
   (Case T-255/04)
   (2004/C 228/98)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 June 2004 by Monique Negenman, residing in Roosendaal (Netherlands), represented by L. Vogel, lawyer.
   The applicant claims that the Court should:

               —

               annul the decision adopted by the appointing authority on 8 March 2004 (and notified on 11 March 2004) rejecting the applicant's complaint of 25 November 2003 against the administrative decisions of 23 October and 30 October 2004 fixing the dates of the beginning and end of the applicant's maternity leave;

               —

               order the defendant to pay compensation of EUR 10 000, with the express reservation that this amount may subsequently be increased, reduced or subject to further clarification;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant in the present case maintains that the appointing authority incorrectly calculated the dates of the beginning and the end of her maternity leave.
   In support of her claims, she alleges that there has been a breach of Article 58 of the Staff Regulations (as worded before 1 May 2004) and of the principle of legitimate expectations, laid down in particular in Article 35 of the Staff Regulations, in that the appointing authority fixed the dates of the beginning and the end of her maternity leave on the basis of the actual date of her confinement, whereas under Article 58 of the Staff Regulations maternity leave starts six weeks before the expected date of confinement as shown in a certificated produced by the official concerned.


title: Case T-292/05: Action brought on 26 July 2005 by Maria Johansen against the Court of Auditors of the European Communities

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/37

         Action brought on 26 July 2005 by Maria Johansen against the Court of Auditors of the European Communities
   (Case T-292/05)
   (2005/C 229/78)
   Language of the case: French
   An action against the Court of Auditors of the European Communities was brought before the Court of First Instance of the European Communities on 26 July 2005 by Maria Johansen, resident in Luxembourg, represented by Stéphane Rodrigues and Alice Jaume, lawyers.
   The applicant claims that the Court should:

               —

               primarily, set aside the decision of the Appointing Authority of 21 April 2005 rejecting the applicant's complaint, adopted together with the Appointment Authority's appointment decision of 27 October 2004, in so far as it fixes her grade, in accordance with Article 12(3) of Annex XIII to the Staff Regulations, and her step in accordance with the current Article 32 of the Staff Regulations;

               —

               set out to the Appointment Authority the effects of the annulment of the contested decisions and, in particular, the regrading of the applicant at grade A*10, step 4, and that with retroactive effect from 1 June 2004, the date on which the appointment decision of 27 October 2004 took effect;

               —

               in the alternative, order the Commission to make good the damage suffered by the applicant as a result of not having been graded in A*10, step 4, from 1 June 2004, the date on which the appointment decision of 27 October 2004 took effect;

               —

               order the defendant to pay the entire costs.

         Pleas in law and main arguments
   The pleas in law and main arguments raised by the applicant are identical to those raised in Case T-58/05 Centeno Mediavilla and Others v Commission
       (1).

      (1)  OJ C 93 of 16.4.2005, p. 38.


title: Case C-88/11 P: Appeal brought on 25 February 2011 by LG Electronics, Inc. against the judgment delivered on 16 December 2010 in Case T-497/09 LG Electronics v OHIM (KOMPRESSOR PLUS)

text:
               16.4.2011

               EN

               Official Journal of the European Union

               C 120/8

         Appeal brought on 25 February 2011 by LG Electronics, Inc. against the judgment delivered on 16 December 2010 in Case T-497/09 LG Electronics v OHIM (KOMPRESSOR PLUS)
   (Case C-88/11 P)
   2011/C 120/14
   Language of the case: French

      Parties

      Appellant: LG Electronics, Inc. (represented by J. Blanchard, lawyer)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM)

      Form of order sought

               —

               declare the appeal admissible;

               —

               set aside the judgment of the Second Chamber of the General Court of 16 December 2010;

               —

               set aside in part the decision of the First Board of Appeal of OHIM of 23 September 2009 in so far as it dismissed in part the appeal brought by LG Electronics against the decision of 5 February 2009 refusing the application for registration of Community trade mark No 007282924 in so far as it designated ‘electric vacuum cleaners’;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

   The appellant pleads an infringement of Article 7(1)(c) of Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark. (1)

   The appellant observes, first, that the General Court relied on new facts, communicated for the first time by OHIM before the Court, which had not been relied on before the Board of Appeal.
   The appellant submits, second, that the General Court erred by distorting the facts and evidence submitted to it, leading to conclude wrongly that vacuum cleaners could be used as compressors.
   Finally, it observes that, since vacuum cleaners do not in any event contain a compressor and cannot be used as compressors, the mark KOMPRESSOR PLUS cannot in any case be regarded as consisting exclusively of signs or indications which may serve, in trade, to designate the kind, quality, quantity, intended purpose, value, geographical origin or the time of production of the goods or of rendering of the services, or other characteristics of the goods or service.

      (1)  OJ 2009 L 78, p. 1.


title: Order of the Court of First Instance of 11 February 2003 in Case T-83/02: Jan Pflugradt v European Central Bank (Staff of the European Central Bank — Formal warning — Measure having an adverse effect — Pre-litigation procedure — Inadmissibility)

text:
C 101/34                EN                           Official Journal of the European Union                                           26.4.2003
(Belgium), represented by M. van Dam, Avocat, against the                    ORDER OF THE PRESIDENT OF THE COURT OF FIRST
Commission of the European Communities (Agents: H. van                                                     INSTANCE
Vliet and W. Wils) — application for the annulment of
Commission Decision SG (2001) D/286098 of 9 February                                                 of 31 January 2003
2001, whereby the Commission rejected the application by
the applicant for exclusion of the boat Arizona from the scope
of Council Regulation (EC) No 718/1999 of 29 March 1999                      in Case T-224/02 R: Miguel Forcat Icardo v Commission
on a Community-fleet capacity policy to promote inland                                        of the European Communities
waterway transport (OJ 1999 L 90, p. 1) — the Court of First
Instance (Third Chamber), composed of K. Lenaerts, President,                (Proceedings for interim measures — Officials — Inadmissi-
J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, has made an                              bility — Urgency — No urgency)
order on 13 December 2002, in which it:
                                                                                (2003/C 101/63)
1)    Declares that there is no further need to adjudicate;
                                                                                (Language of the case: French)
2)    Orders the Commission to pay the costs.
( 1) OJ C 186, 30.6.2001.                                                    In Case T-224/02 R: Miguel Forcat Icardo, an official of
                                                                             the Commission of the European Communities, residing in
                                                                             Brussels, represented by M.A. Lucas, avocat, against Com-
                                                                             mission of the European Communities (Agents: J. Currall and
                                                                             H. Tserepa-Lacombe) — application, essentially, in the first
                                                                             place, for compliance with the Commission’s undertaking to
                                                                             second the applicant to the United Nations Organisation for
       ORDER OF THE COURT OF FIRST INSTANCE                                  Food and Agriculture in Rome and, second, for suspension of
                                                                             the applicant’s staff report of 18 March 2002 covering the
                                                                             period from 1999 to 2001 — the President of the Court of
                       of 11 February 2003                                   First Instance has made an order on 31 January 2003, the
                                                                             operative part of which is as follows:
in Case T-83/02: Jan Pflugradt v European Central Bank (1)
                                                                             1.    The application for interim measures is dismissed.
(Staff of the European Central Bank — Formal warning —
Measure having an adverse effect — Pre-litigation procedure                  2.    The costs are reserved.
                        — Inadmissibility)
                          (2003/C 101/62)
                   (Language of the case: German)
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 3 February 2003
In Case T-83/02: Jan Pflugradt, residing in Frankfurt-am-Main
(Germany), represented by N. Pflüger, Rechtsanwalt, with an
address for service in Luxembourg, against European Central                  in Case T-253/02: Chafiq Ayadi v Council of the European
Bank (Agents: V. Saintot, T. Gilliams and B. Wägenbaur) —                    Union and Commission of the European Communities ( 1)
application for the annulment of the letter of 28 February
2002 by which the European Central Bank informed the                         (Action for annulment — Council Regulation — Action
applicant that a formal-warning procedure was being instituted               brought against the Council and the commission — Partial
against him — the Court of First Instance (Fifth Chamber),                                              inadmissibility)
composed of: R. García-Valdecasas, President, P. Lindh and
J.D. Cooke, Judges; H. Jung, Registrar, has made an order on
                                                                                (2003/C 101/64)
11 February 2003, the operative part of which is as follows:
                                                                                (Language of the case: English)
1.    The application is inadmissible.
2.    Each party shall bear its own costs.
                                                                             In Case T-253/02: Chafiq Ayadi, residing in Dublin, represent-
                                                                             ed by A. Lyon, Solicitor, and S. Cox, Barrister, against Council
( 1) OJ C 118 of 18.5.2002.                                                  of the European Union (Agents: M. Vitsentzatos and M. Bishop)
                                                                             and Commission of the European Communities (Agents:
                                                                             M. Wilderspin and C. Brown) — application for partial


title: Case F-66/08: Action brought on 25 July 2008 — De Smedt and Others v Parliament

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/26

         Action brought on 25 July 2008 — De Smedt and Others v Parliament
   (Case F-66/08)
   (2008/C 247/53)
   Language of the case: French
   Parties

      Applicant: Emile De Smedt (Brussels, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis, É. Marchal, lawyers)

      Defendant: European Parliament
   Subject-matter and description of the proceedings
   Annulment of the individual decisions of the appointing authority refusing to grant the applicants the allowances for shiftwork referred to in Article 56a of the Staff Regulations pursuant to Council Regulation No 1873/2006 of 11 December 2006 amending Regulation No 300/76 determining the categories of officials entitled to allowances for shift work, and the rates and conditions thereof, and those allowances referred to in Article 56b of the Staff Regulations pursuant to Council Regulation No 1945/2006 of 11 December 2006 amending Regulation No 495/77 determining the categories of officials entitled to, and the conditions for and rates of, allowances for regular standby duty.
   Form of order sought

               —

               Annul the individual decisions of the appointing authority refusing to grant the applicants the allowances for shiftwork referred to in Article 56a of the Staff Regulations pursuant to Council Regulation No 1873/2006 of 11 December 2006 amending Regulation No 300/76 determining the categories of officials entitled to allowances for shift work, and the rates and conditions thereof;

               —

               Annul the individual decisions of the appointing authority refusing to grant the applicants the allowances referred to in Article 56b of the Staff Regulations pursuant to Council Regulation No 1945/2006 of 11 December 2006 amending Regulation No 495/77 determining the categories of officials entitled to, and the conditions for and rates of, allowances for regular standby duty;

               —

               Order the European Parliament to pay the costs.


title: Case C-546/09: Judgment of the Court (Fifth Chamber) of 31 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia (Customs Code — Customs duties — Customs debt on importation — Interest on arrears — Period for the collection of interest on arrears — Compensatory interest)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/7

         Judgment of the Court (Fifth Chamber) of 31 March 2011 (reference for a preliminary ruling from the Varhoven administrativen sad — Bulgaria) — Aurubis Balgaria AD v Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia
   (Case C-546/09) (1)

   (Customs Code - Customs duties - Customs debt on importation - Interest on arrears - Period for the collection of interest on arrears - Compensatory interest)
   2011/C 152/12
   Language of the case: Bulgarian

      Referring court

   Varhoven administrativen sad

      Parties to the main proceedings

      Applicant: Aurubis Balgaria AD

      Defendant: Nachalnik na Mitnitsa Stolichna, formerly Nachalnik na Mitnitsa Sofia

      Re:

   Reference for a preliminary ruling — Varhoven Administrativen Sad — Interpretation of Articles 214(3), 222(1)(a) and 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation (EEC) No 2913/92 (OJ 1993 L 253, p. 1) — Charging by the national authorities of interest on arrears in respect of the amount of additional customs duties, for the period which follows the initial entry of customs duties in the accounts — Charging of compensatory interest in respect of the period from the date of the customs declaration until the subsequent entry in the accounts of the amount payable — Possibility of an increase, when customs debts are subsequently entered in the accounts, equal to the amount of interest on arrears calculated from the date on which the debt is incurred until the date of subsequent entry in the accounts

      Operative part of the judgment

               1.

               Article 232(1)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code, as amended by Council Regulation (EC) No 1791/2006 of 20 November 2006, must be interpreted as meaning that interest on arrears in relation to customs duties still to be recovered may be charged under that provision only in respect of the period falling after the deadline by which those duties were to be paid.

               2.

               In the absence of corresponding provisions in Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Regulation No 2913/92, as amended by Commission Regulation (EC) No 214/2007 of 28 February 2007, Article 214(3) of Regulation No 2913/92, as amended by Regulation No 1791/2006, must be interpreted as meaning that national authorities may not, on the basis of that provision, charge the person owing the customs debt compensatory interest in respect of the period between the date of the original customs declaration and the date of the subsequent entry in the accounts.

               3.

               The general principles of EU law and, in particular, the principle of the legality of criminal offences and penalties preclude national authorities from applying, to a customs offence, a penalty for which no express provision is made under the national legislation.

      (1)  OJ C 80, 27.3.2010.


title: Case C-212/99: Action brought on 4 June 1999 by the Commission of the European Communities against the Italian Republic

text:
7.8.1999                EN                       Official Journal of the European Communities                                      C 226/21
3. Must the fees paid for such services be calculated in the                    — C(1999)544, which withdraws the assistance granted
     light of the cost involved in providing the service?                            to Floreurop - Productos Florestais Lda by Commission
                                                                                Decision C(96)2211 of 13 September 1996 concern-
4. Are such costs those incurred in taking the action and in                         ing the grant of an EAGGF, Guarantee Section, contri-
     maintaining the facilities necessary for taking it?                             bution under Council Regulation (EEC) No 4256/88
                                                                                for project No 94.PT.06.015, entitled ‘Demonstration
                                                                                Project to accelerate agricultural diversification in
5. May the criterion of the economic benefit which the user                          Madeira by introducing products intended for the
     obtains from the action taken be applied in calculating the                     uharmaceutical industry (tea tree oil)’
     amount payable for such action?
                                                                                to the extent to which they are addressed to the Portuguese
                                                                                Republic;
(1) OJ, English Special Edition, 1969 (II), p. 412.
                                                                            — Order the Commission to pay the costs.
                                                                            Pleas and principal arguments
                                                                            — Breach of the obligation to state reasons (Article 253 EC);
                                                                            — Infringement of Article 23(1) third indent and Article 24
Action brought on 1 June 1999 by the Portuguese                                 of Regulation (EEC) No 4253/88 (2) in that, on a correct
Republic against the Commission of the European Com-                            interpretation and application of those provisions to the
                              munities                                          projects in question, only the beneficiary undertakings
                                                                                should be responsible for repaying the amounts received:
                                                                                the assistance in question was granted and controlled
                          (Case C-208/99)                                       directly and solely by the European Commission without
                                                                                any involvement of the national management and moni-
                                                                                toring bodies. Nor can the fact that the national authorities
                          (1999/C 226/34)                                       simply accompanied the Commission inspectors be regard-
                                                                                ed as participation in the control process. The Member
                                                                                State cannot be held responsible for irregularities arising
An action against the Commission of the European Communi-                       in the implementation of such projects nor can it be the
ties was brought before the Court of Justice on 1 June 1999                     addressee of decisions requiring the recovery of funds used
by the Portuguese Republic, represented by Luı́s Fernandes,                     improperly.
Angelo Seiça Neves and Paula Fragão, acting as Agents, with
an address for service in Luxembourg at the Portuguese
Embassy, 33 Allée Scheffer, Luxembourg.                                     (1) OJ L 374 of 31.12.1988, p. 25.
                                                                            (2) OJ L 394 of 31.12.1988, p. 14.
The applicant claims that the Court of Justice should:
— Uphold this application and therefore annul the following
     decisions:
     — C(1999)543, which withdraws the assistance granted
         to Belgravia Lda b, Commission Decision C(93)3403
         of 26 November 1993 concerning the grant of an
         EAGGF, Guarantee Section, contribution under                       Action brought on 4 June 1999 by the Commission of the
         Council Regulation (EEC) No 4256/88 (1) for project                    European Communities against the Italian Republic
         No 93.PT.06.023, entitled ‘Demonstration Project for
         introduction of the cultivation of sea kale’,                                              (Case C-212/99)
     — C(1999)545, which withdraws the assistance granted                                           (1999/C 226/35)
         to Ordinal-Gestão de Investimentos Lda by Com-
         mission Decision C(93)1606 of 21 June 1993 concern-
         ing the grant of an EAGGF, Guarantee Section, contri-              An action against the Italian Republic was brought before the
         bution under Council Regulation (EEC) No 4256/88                   Court of Justice of the European Communities on 4 June 1999
         for project No 93.PT.06.002, entitled ‘Pilot and Dem-              by the Commission of the European Communities, represented
         onstration Project for turning to account three Mediter-           by Pieter Jan Kuijper and Enrico Traversa, Legal Advisers acting
         ranean plants (fennel, balm and parsley) through the               as Agents, with an address for service in Luxembourg at the
         extraction of essential oils for the agro-food industry’,          office of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
 ---pagebreak--- C 226/22                 EN                     Official Journal of the European Communities                                       7.8.1999
The applicant claims that the Court should:                                Question 2
— Declare that, in view of the administrative and contractual              In so far as the national administrative customs procedure
     practice established by various public universities, which            provides, as the only measure (applied automatically, as
     entails a failure to respect the vested rights of former              indicated above) to be taken by the national customs auth-
     university language assistants who are not of Italian mother          orities, for recourse to the overdue-clearance procedure, the
     tongue, whereas such recognition is guaranteed for the                sole object of which is to ensure sale of the goods, may it not
     majority of other national workers, the Italian Republic              be regarded as a disproportionate measure infringing taxpayers’
     has failed to fulfil its obligations under Article 39 (ex Article     rights of defence and classifiable as an obstacle to the
     48) of the Treaty establishing the European Community;                free movement of goods, particularly since, being applied
                                                                           automatically, that measure may take effect forthwith, that is
— Order the Italian Republic to pay the costs.                             to say on the first day following the end of the statutory
                                                                           storage period, without the importer of the goods even being
                                                                           warned or advised?
Pleas in law and main arguments
                                                                           Question 3
It appears from the information provided by the Italian
authorities that the infringement of Article 48 of the EC Treaty           By immediately putting up the goods for ‘sale’ in the circum-
(now, after amendment, Article 39 EC), which the Commission                stances described above, does the national customs adminis-
described in detail in its letter under Article 169 (now Article           trative procedure infringe Article 6(3) of the Community
226) of 9 Jul, 1998 and in its reasoned opinion of 28 January              Customs Code?
1999, has not been cured.
In the case of six of the nine universities listed in the above            Question 4
letter and opinion, the Italian Government has failed to provide
the Commission with adequate documentary evidence to show                  Does the national customs administrative procedure, by not
that, for financial and social security purposes, the seniority            making any notification compulsory in the overdue-clearance
acquired by university foreign language assistants before the              procedure, as provided for in Article 638 et seq. of the Customs
entry into force of Law No 236/1995 has been recognised.                   Regulations, infringe Article 243 of the Community Customs
                                                                           Code?
                                                                           Question 5
                                                                           In the event that the overdue-clearance charge provided for in
                                                                           Article 638 et seq. of the Customs Regulations falls to be
                                                                           classified as a procedural administrative penalty (the view
Reference for a preliminary ruling by the Tribunal Fiscal                  taken in the national case-law), is that charge subject to VAT?
Aduaneiro do Porto by order of that court of 11 May
1999, in the case of José Teodoro de Andrade and the
               Director da Alfândega de Leixões                           Question 6
                            (Case C-213/99)                                If the hypothesis outlined in the Question 5 (that the charge
                                                                           constitutes an administrative penalty) is accepted, may the fact
                                                                           that that charge is levied on an ad valorem (objective) basis, but
                            (1999/C 226/36)                                without any reference to fault on the part of the agent or to
                                                                           charges actually borne by the customs authorities in respect of
Reference has been made to the Court of Justice of the                     measures relating to precautionary supervision, warehousing
European Communities by an order of the Tribunal Fiscal                    and other matters, be regarded as constituting an infringement
Aduaneiro do Porto (Customs Court, Oporto) of 11 May 1999,                 of the principle of proportionality?
which was received at the Court Registry on 4 June 1999, for
a preliminary ruling in the case of José Teodoro de Andrade
                                                                           Question 7
and the Director da Alfândega de Leixões, on the following
questions:
                                                                           If it were accepted, on the contrary, that the said charge is not
                                                                           in the nature of a penalty but in fact represents remuneration
                                                                           for services provided by the customs authorities, would the
Question 1                                                                 levying of VAT be justified?
Is the national administrative customs procedure, in so far as
                                                                           (1) Council Regulation (EEC No 2913/92 of 12 October 1992
it means that, automatically and without prior notice, goods                    establishing the Community Customs Code, OJ L 302 of
remaining uncleared beyond the statutory periods are to be                      19.10.1992, p. 1.
subject to the overdue-clearance procedure (sale), compatible
with Article 53 of the Customs Code (1), in particular Article
53(1)?


title: Case C-392/99: Action brought on 13 October 1999 by the Commission of the European Communities against the Portuguese Republic

text:
5.2.2000                EN                      Official Journal of the European Communities                                            C 34/9
I. Sáenz-Cortabarrı́a Fernández and Morales Isasi, of the Viz-           (1) The appeal is dismissed.
caya Bar, with an address for service in Luxembourg at the
Chambers of G. Harles, 8-10 Rue Mathias — against the order                (2) N is to pay the costs.
of the Court of First Instance of the European Communities
(Second Chamber) in Case T-136/95, Infrisa v Commission,
[1998] ECR II-3301, seeking to have that order set aside, the              (1) OJ C 71 of 13.3.1999.
other party to the proceedings being: Commission of the
European Communities (Agent: J. Guerra Fernández) — the
Court (First Chamber) composed of L. Sevón (Rapporteur),
President of the Chamber, P. Jann and M. Wathelet, Judges,
Advocat General: F.G. Jacobs, Registrar: R. Grass has made an
order on 14 October 1999 in which it:
1. Dismisses the appeal;                                                   Action brought on 13 October 1999 by the Commission
                                                                           of the European Communities against the Portuguese
2. Orders Industria del Frio Auxiliar Conserera SA (Infrisa) to pay                                      Republic
     the costs.
                                                                                (Case C-392/99)
( 1) OJ C 20 of 23.1.1999.
                                                                                (2000/C 34/17)
                                                                           An action against the Portuguese Republic was brought
                                                                           before the Court of Justice of the European Communities
                                                                           on 13 October 1999 by the Commission of the European
                                                                           Communities, represented by Lena Ström and António Caeiros,
                    ORDER OF THE COURT                                     acting as Agents, with an address for service in Luxembourg at
                                                                           the office of Carlos Gómez de la Cruz, of its Legal Service,
                         (Third Chamber)                                   Wagner Centre, Kirchberg.
                       of 19 October 1999                                  The applicant claims that the Court should:
in Case C-21/99 P: N v Commission of the European                          (a) Declare that:
                          Communities (1)
                                                                               — by failing to adopt the provisions by which the
(Appeal — Former officials — Staff report — Interest in                            competent authority, before granting a permit to the
            bringing proceedings — Inadmissibility)                                undertakings which regenerate waste oils or use waste
                                                                                oils as fuel, may satisfy itself that all appropriate health
                          (2000/C 34/16)                                           protection measures in the field of regeneration of
                                                                                waste oils have been taken, including use of the best
                                                                                technology available, where the cost is not excessive,
                    (Language of the case: French)                                 in the field of regeneration of waste oils and the use of
                                                                                waste oils as fuel;
(Provisional translation; the definitive translation will be published         — by failing to ensure that the residues from the combus-
                   in the European Court Reports)                                  tion of waste oils are disposed of in accordance with
                                                                                Article 9 of Directive 78/319/EEC (1) and, from 27 June
In Case C-21/99 P: N, a former official of the Commission of                       1995, in accordance with Article 9 of Directive
the European Communities, residing in Brussels (Belgium),                          75/442/EEC (2), which, as amended by Directive 91/
represented by G. Sakellaropoulos, of the Athens Bar, with an                      156/EEC (3) and pursuant to Directive 91/689/EEC (4),
address for service in Luxembourg at the Chambers of A. May,                       replaced Article 9 of Directive 78/319/EEC;
31 Grand-Rue — appeal against the order of the Court of First
Instance of the European Communities (Fifth Chamber) of                        — by failing to provide for regular inspections of the
30 November 1998 in Case T-97/94 N v Commission [1998]                             undertakings regenerating waste oils or which use
ECR-SC I-A-621 and II-1879, seeking to have that order set                         waste oils as fuel and for the examination of trends in
aside and applying for the grant of the form of order sought                       the state of technical development and/or of the
by the appellant in the proceedings at first instance, the other                   environment with a view to revising, where necessary,
party to the proceedings being the Commission of the                               permits granted to such undertakings;
European Communities (Agents: G. Valsesia and F. Duvieusart-
Clotuche) — the Court (Third Chamber), composed of:                            — by failing to convey to the Commission information
J.C. Moitinho de Almeida, President of Chamber, C. Gulmann                         concerning its technical expertise and the experience
(Rapporteur) and J.-P. Puissochet, Judges; F.G. Jacobs, Advocate                   gained and results obtained through the application of
General; R. Grass, Registrar, has made an order on 19 October                      measures taken pursuant to Directive 75/439/EEC (5),
1999, the operative part of which is as follows:                                   as amended by Directive 87/101/EEC(6),
 ---pagebreak--- C 34/10                 EN                    Official Journal of the European Communities                                           5.2.2000
the Portuguese Republic has failed to fulfil its obligations                  nationals of a non-member country if such persons have
under Articles 6(2), 8(2)(a), 13 and 17 of Directive 75/439/EEC               no right of free movement under the Treaty of 25 March
as amended by Council Directive 87/101/EEC and under the                      1957 establishing the European Community, as amended
first paragraph of Article 10 and the third paragraph of                      by the Treaty of 7 February 1992 on European Union?
Article 249 of the EC Treaty;
                                                                         2. If the answer to Question 1 is in the affirmative:
(b) Order the Portuguese Republic to pay the costs.
                                                                              If a person living with a employed person, who is a
                                                                              recognised refugee, in a cohabitation relationship similar
Pleas in law and main arguments                                               to marriage and who looks after and raises the couple’s
                                                                              child also to be regarded as a member of the family
                                                                              within the meaning of Article 1(f)(i) of Regulation (EEC)
The mandatory nature of the provisions of the third paragraph
                                                                              No 1408/71?
of Article 249 and the first paragraph of Article 10 of the EC
Treaty requires Member States to adopt the measures necessary
                                                                         3. If the answer to Question 1 is in the affirmative:
to transpose directives addressed to them into their domestic
law before the expiry of the period prescribed for doing so and
                                                                              Does Regulation (EEC) No 1408/71 also apply in the case
forthwith to inform the Commission thereof. That period,
                                                                              where a refugee has travelled directly to a Member State
which is laid down in Article 2 of Directive 87/101/EEC,
                                                                              from a non-member country and has not moved within
expired on 1 January 1990 without Portugal having so far
                                                                              the Community?
brought into force the abovementioned provisions.
                                                                         4. If the answers to Questions 1 and 3 are in the affirmative,
(1) Council Directive 78/319/EEC of 20 March 1978 on toxic and                but Question 2 falls to be answered in the negative:
    dangerous waste (OJ 1978 L 84, p. 43).
(2) Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975            Do provisions of Community law preclude national rules
    L 194, p. 39).                                                            under which, even in the event of recognition as a refugee,
(3) Council Directive 91/156/EEC of 18 March 1991 amending                    entitlement to family benefits cannot exist retroactively
    Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).                      but arises only once a residence permit has been issued?
(4) Council Directive 91/689/EEC of 12 December 1991 on hazard-
    ous waste (OJ 1991 L 377, p. 20).
(5) Council Directive 75/439/EEC of 16 June 1975 on the disposal         (1) JO L 149 of 5.7.1971, p. 2 ; OJ, English Special Edition 1971 (II),
    of waste oils (OJ 1975 L 194, p. 23).                                    p. 416.
(6) Council Directive 87/101/EEC of 22 December 1986 amending
    Directive 75/439/EEC on the disposal of waste oils (OJ 1987 L
    42, p. 43).
                                                                         Reference for a preliminary ruling by the Bundessozial-
                                                                         gericht by order of that Court of 5 August 1999 in the
                                                                         case of Akhtar Seyed Abbasy against Landeskreditbank
Reference for a preliminary ruling by the Bundessozial-                                 Baden-Württemberg-Förderbank
gericht by order of 5 August 1999 in the case of Vetharani-
gam Pathminidevi v Landeskreditbank Baden-Württem-
                                                                                (Case C-425/99)
                         berg-Förderbank
                                                                                (2000/C 34/19)
                         (Case C-407/99)
                                                                         Reference has been made to the Court of Justice of the
                          (2000/C 34/18)
                                                                         European Communities by order of the Bundessocialgericht
                                                                         (Federal Social Court) of 5 August 1999, received at the Court
Reference has been made to the Court of Justice of the                   registry on 3 November 1999, for a preliminary ruling in
European Communities by order of 5 August 1999 from the                  the case of Akhtar Seyed Abbasy against Landeskreditbank
Bundessozialgericht (Federal Social Court), which was received           Baden-Württemberg-Förderbank, on the following question:
at the Court Registry on 25 October 1999, for a preliminary
ruling in the case of Vetharanigam Pathminidevi v Landeskre-             1. Is Regulation (EEC) No 1408/71 (1) of the Council of
ditbank Baden-Württemberg-Förderbank on the following                         14 June 1971 on the application of social security schemes
questions:                                                                    to employed persons and their families moving within the
                                                                              Community applicable to refugees and members of their
1. Does Council Regulation (EEC) No 1408/71 (1) of 14 June                    family who are nationals of a third country if they do not
     1971 on the application of social security schemes to                    enjoy the right of freedom of movement under the Treaty
     employed persons, to self-employed persons and to mem-                   establishing the European Communities of 25 March
     bers of their families moving within the Community apply                 1957, as amended by the Treaty on European Union of
     to refugees and to members of their families who are                     7 February 1992?


title: Case C-609/13 P: Judgment of the Court (First Chamber) of 26 January 2017 — Duravit AG, Duravit SA, Duravit BeLux SPRL/BVBA v European Commission, Council of the European Union (Appeal — Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Coordination of selling prices and exchange of sensitive business information — Regulation (EC) No 1/2003 — Article 31 — Obligation to state reasons)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/2

         Judgment of the Court (First Chamber) of 26 January 2017 — Duravit AG, Duravit SA, Duravit BeLux SPRL/BVBA v European Commission, Council of the European Union
   (Case C-609/13 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria - Coordination of selling prices and exchange of sensitive business information - Regulation (EC) No 1/2003 - Article 31 - Obligation to state reasons))
   (2017/C 104/03)
   Language of the case: German

      Parties

      Appellants: Duravit AG, Duravit SA, Duravit BeLux SPRL/BVBA (represented by: U. Soltész and C. von Köckritz, Rechtsanwälte)

      Other parties to the proceedings: European Commission (represented by: F. Castillo de la Torre and L. Malferrari, acting as Agents, and by A. Böhlke, Rechtsanwalt), Council of the European Union

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Duravit AG, Duravit SA and Duravit BeLux SPRL/BVBA to pay the costs.

      (1)  OJ C 71, 8.3.2014.


title: Case T-30/14: Action brought on 13 January 2014 — Laverana v OHIM (BIO — INGRÉDIENTS VÉGÉTAUX — PROPRE FABRICATION)

text:
               22.3.2014

               EN

               Official Journal of the European Union

               C 85/22

         Action brought on 13 January 2014 — Laverana v OHIM (BIO — INGRÉDIENTS VÉGÉTAUX — PROPRE FABRICATION)
   (Case T-30/14)
   2014/C 85/39
   Language of the case: German

      Parties

      Applicant: Laverana GmbH & Co. KG (Wennigsen, Germany) (represented by J. Wachinger und M. Zöbisch, lawyers)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 November 2013 in Case R 1749/2013-4 and authorise the publication of the application for registration of the Community trade mark No 11 642 527 for goods and services in Classes 3, 5 and 35;

               —

               in the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 November 2013 in Case R 1749/2013-4 and refer the case back to the Office so that it adopts a new decision;

               —

               in the alternative, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 11 November 2013 in Case R 1749/2013-4;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: The figurative mark in black and white, including the word elements ‘BIO — INGRÉDIENTS VÉGÉTAUX — PROPRE FABRICATION’ for goods and services in Classes 3, 5 an 35 — application for registration of Community trade mark No 11 642 527

      Decision of the Examiner: Refused the application in part

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.