title: Action brought on 4 June 1997 by the Commission of the European Communities against the Portuguese Republic (Case C-214/97)

text:
26 . 7. 97              EN                  Official Journal of the European Communities                                  No C 228/9
legislation of that Member State, where the company does               — by not providing for limit values for emissions for the
not itself carry on any business but it is desired to set up                 discharge of certain substances by industrial plant not
the subsidiary in order to carry on the entire business in                   listed under heading A of Annex II to the Directive,
the country in which the subsidiary is established, and
where, instead of incorporating a company in the latter                — by not transposing Article 3 ( 5 ) of the Directive
Member State, that procedure must be regarded as having                      concerning the reference method of analysis to be used
been employed in order to avoid paying in company                            in determining the presence of the substances referred
capital of not less than Dkr 200 000 ( at present Dkr                        to in Article 2 ( a ),
125 000 )?
                                                                       — by not transposing point 5 of heading A of Annex I to
                                                                             the Directive on the monitoring procedure to be
                                                                              instituted to check whether the discharges of the
                                                                             substances referred to in Article 2 ( a ) comply with the
                                                                             emission standards,
Action brought on 4 June 1997 by the Commission of the
  European Communities against the Portuguese Republic                 — by not drawing up any specific programme to avoid or
                          ( Case C-213/97 )                                  eliminate pollution arising from the sources of
                            ( 97/C 228/18 )                                   significant discharges which are specifically mentioned
                                                                              in Annex II,
An action against the Portuguese Republic was brought                  the defendant did not bring national law into line with the
before the Court of Justice of the European Communities                Directive, so that its transposition must be considered to
on 4 June 1997 by the Commission of the European                       be erroneous and incomplete .
Communities, represented by Francisco de Sousa Fialho,
of its Legal Service, acting as Agent, with an address for             O OJNoL 181 , 4 . 7. 1986 , p. 16 .
service in Luxembourg at the office of Carlos Gomez de la              ( 2 ) OJ No L 158 , 25 . 6 . 1988 , p . 35 .
Cruz, Wagner Centre, Kirchberg.                                        ( 3 ) OJ No L 129, 18 . 5 . 1976 , p . 23 .
The applicant claims that the Court should :
— declare that, by failing to adopt all the laws,
      regulations or administrative provisions necessary to            Action brought on 4 June 1997 by the Commission of the
      comply fully and properly with Council Directive 86/                 European Communities against the Portuguese Republic
      280/EEC (') of 12 June 1986, as amended by Council                                           ( Case C-214/97)
      Directive 88/347/EEC (2 ) of 16 June 1988 , on limit
      values and quality objectives for discharges of certain                                        ( 97/C 228/19 )
      dangerous substances included in List I of the Annex
      to Directive 76/464/EEC (3 ), the Portuguese Republic            An action against the Portuguese Republic was brought
      has failed to fulfil its obligations under the third             before the Court of Justice of the European Communities
      paragraph of Article 189 of the EC Treaty and                    on 4 June 1997 by the Commission of the European
      Articles 7 and 2 of Directives 86/280/EEC and 88/347/            Communities, represented by Francisco de Sousa Fialho,
      EEC respectively,                                                of its Legal Service, acting as Agent, with an address for
                                                                       service in Luxembourg at the office of Carlos Gomez de la
— declare, in the alternative, that, by failing forthwith to           Cruz, Wagner Centre, Kirchberg.
      inform the       Commission      of such measures,      the
      Portuguese Republic failed to fulfil its obligations             The applicant claims that the Court should:
      under those provisions,
                                                                       — declare that, by failing to adopt and bring into force
— order the Portuguese Republic to pay the costs.                             within the prescribed period the laws, regulations or
                                                                              administrative provisions necessary to comply with
                                                                              Council Directive 75/440/EEC of 16 June 1975
 Pleas in law and main arguments adduced in support:
                                                                              concerning the quality required of surface water
                                                                              intended for the abstraction of drinking water in the
 The Commission finds that the Portuguese Republic has                        Member States ( ! ), inasmuch as it did not draw up a
 failed to fulfil its obligations inasmuch as :                               systematic plan of action including a timetable for the
                                                                              improvement of surface water, the Portuguese
 — by providing, by virtue of Article 44 ( 3 ) of Decree                      Republic has failed to fulfil its obligations under the
      Law No 74/90, that the competent authorities for the                    third paragraph of Article 189 of the EC Treaty and
      granting of authorizations may fix emission standards                   the provisions of Directive 75/440/EEC,
      which are less stringent than those set out under
      heading A of the Annexes to the Directive and by not             — declare, in the alternative, that, by failing forthwith to
      providing for any mandatory review of such                               inform the Commission of such measures, the
      authorizations ( infringement of Article 3 ( 3 ) of the                  Portuguese Republic failed to fulfil its obligations
      Directive ),                                                             under those provisions,
 ---pagebreak--- No C 228/ 10            EN                   Official Journal of the European Communities                                         26 . 7. 97
— order the Portuguese Republic to pay the costs.                       1 . Is Article 13 ( A) ( 1 ) of the Sixth Directive (') to be
                                                                             interpreted as meaning that two natural persons ( i.e.
Pleas in law and main arguments adduced in support:                          individuals) who carry on business in common as
                                                                             partners        cannot         claim     exemption        under
Under the third paragraph of Article 189 of the EC Treaty,                   subparagraph ( b ) in the circumstances summarized in
a directive is to be binding, as to the result to be achieved,               the schedule to these questions and on the assumptions
upon each Member State to which it is addressed. Under                       that :
Article 395 and Annex XXXVI of the Act concerning the
conditions of accession of the Portuguese Republic to the                    ( i ) the business consists of medical care and closely
                                                                                related activities:
European Communities, Directive 75/440/EEC is
applicable in Portugal as from 1 January 1989; the period                           and
for the entry into force of the necessary provisions of
domestic law thus expired on that date . Despite the                         ( ii ) they are 'duly recognized' and their activities are
prescribed periods having expired, the Portuguese                                   of a similar nature to those provided by ' hospitals'
Republic has nevertheless failed to adopt a systematic plan                         and/or     'centres     for   medical  treatment        or
of action including a timetable for the improvement of                              diagnosis '?
surface water, especially that falling within category A3 .
(') OJ No L 194, 25 . 7 . 1975 , p . 26 .
                                                                             In particular, are            the  partners  excluded      from
                                                                             exemption because :
                                                                             ( a ) they do not constitute a ' body' governed by public
                                                                                law;
                                                                              ( b ) their activities are not undertaken under social
Reference for a preliminary ruling by the Tribunale Civile                          conditions comparable to those applicable to
di Bologna, Sezione Lavoro, by order of that court of                               bodies governed by public law ?
16 April 1997 in the case of Barbara Bellone against
                          Yokohama SpA
                                                                        2 . Is Article 13 (A) ( 1 ) of the Sixth Directive to be
                         ( Case C-215 /97 )
                                                                             interpreted as meaning that two natural persons
                            ( 97/C 228/20 )                                   ( i.e. individuals ) who carry on business in common
                                                                              as partners cannot claim exemption under
Reference has been made to the Court of Justice of the                        subparagraph (g) in the circumstances summarized in
European Communities by order of the Tribunale Civile di                      the schedule to these questions and on the assumption
Bologna, Sezione Lavoro ( District Civil Court of Bologna,                    that the services they supply are 'closely linked to
Employment Division ) of 16 April 1997, received at the                       welfare and social security work, including those
 Court Registry on 9 June 1997, for a preliminary ruling in                   supplied by old people's homes'?
the case of Barbara Bellone v. Yokohame SpA on the
following question:                                                     (') Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                            harmonization of the laws of the Member States relating to
                                                                            turnover taxes — Common system of value added tax :
Is Directive 86/653/EEC (') compatible with Articles 2 and                  uniform basis of assessment ( OJ No L 145 , 13 . 6 . 1977 , p. 1 ).
 9 of Italian Law No 204 of 3 May 1985 , which make the
 validity of agency contracts conditional upon commercial
 agents being entered in the appropriate register ?
 (') OJ No L 382 , 31 . 12 . 198 , p . 17 .
                                                                        Appeal brought on 9 June 1997 by the Council of the
                                                                        European Union against the judgment delivered on
                                                                         16 April 1997 by the First Chamber of the Court of First
                                                                        Instance of the European Communities in Case T-80/96
                                                                         between Ana Maria Fernandes Leite Mateus and Council
 Reference for a preliminary ruling by the VAT and Duties
 Tribunal, Belfast, by direction of that court of 4 June                                         of the European Union
 1997, in the case of Jennifer Gregg and Mervyn Gregg                                              ( Case C-218/97 P )
      against the Commissioners of Customs and Excise                                                 ( 97/C 228/22 )
                          ( Case C-216/97)
                             ( 97/C 228/21 )
                                                                         An appeal against the judgment delivered on 16 April
                                                                         1997 by the First Chamber of the Court of First Instance
 Reference has been made to the Court of Justice of the                  of the European Communities in Case T-80/96 between
 European Communities by direction of the VAT and                        Ana Maria Fernandes Leite Mateus and Council of the
 Duties Tribunal, Belfast, of 4 June 1997, which was                     European Union was brought before the Court of Justice
 received at the Court Registry on 9 June 1997, for a                    of the European Communities on 9 June 1997 by the
 preliminary ruling in the case of Jennifer Gregg and                    Council of the European Union, represented by Amadeu
 Mervyn Gregg against the Commissioners of Customs and                   Lopes Sabino, Diego Canga Fano and Therese Blanchet, of
 Excise , on the following questions :                                   its Legal Servie, with an address for service in


title: Case C-190/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 5 April 2016 — Werner Fries v Lufthansa CityLine GmbH

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/5

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 5 April 2016 — Werner Fries v Lufthansa CityLine GmbH
   (Case C-190/16)
   (2016/C 222/06)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Werner Fries

      Defendant: Lufthansa CityLine GmbH

      Questions referred

               1.

               Is FCL.065(b) in Annex I to Regulation (EU) No 1178/2011 (1) compatible with the prohibition of discrimination on grounds of age under Article 21(1) of the Charter of Fundamental Rights of the European Union (‘the Charter’)?

               2.

               Is FCL.065(b) in Annex I to Regulation (EU) No 1178/2011 compatible with Article 15(1) of the Charter, according to which everyone has the right to engage in work and to pursue a freely chosen or accepted occupation?

               3.

               If the first and second questions are answered in the affirmative:

                           (a)

                           Are so-called ferry flights operated by an air carrier transporting no passengers and no cargo or mail also covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) or the definition of that term in FCL.010 in Annex I to Regulation (EU) No 1178/2011?

                           (b)

                           Are training and the conducting of exams in which a pilot over the age of 65 remains in the cockpit of the aircraft as a non-flying crew member covered by the term ‘commercial air transport’ within the meaning of FCL.065(b) or the definition of that term in FCL.010 in Annex I to Regulation (EU) No 1178/2011?

      (1)  Commission Regulation (EU) No 1178/2011 of 3 November 2011 laying down technical requirements and administrative procedures related to civil aviation aircrew pursuant to Regulation (EC) No 216/2008 of the European Parliament and of the Council (OJ 2011 L 311, p. 1).


title: Case C-282/01: Action brought on 17 July 2001 by the Commission of the European Communities against the Portuguese Republic

text:
C 245/18              EN                      Official Journal of the European Communities                                          1.9.2001
Under Article 12(4) the Member States are to establish a                 The applicant claims that the Court should:
system to monitor the incidental capture and killing of the
animal species listed in Annex IV(a). The Swedish legislation            —     Declare that, by failing to adopt and bring into force
does not cover all the species listed in Annex IV(a).                          within the prescribed period the laws, regulations and
                                                                               administrative provisions necessary to comply with
                                                                               Council Directive 98/18/EC (1) of 17 March 1998 on
Under Article 15 Member States are required to prohibit the                    safety rules and standards for passenger ships, the Portu-
use of methods and forms of capture etc listed in Annex VI of                  guese Republic has failed to fulfil its obligations under
the species listed in Annex Va, and in cases where, in                         the third paragraph of Article 249 of the EC Treaty and
accordance with Article 16, derogations are applied, of the                    Article 14 of Directive 98/18/EC;
species listed in Annex IVa. The right to derogate from the
prohibition in Article 15 is limited to the situations listed in         —     in the alternative, declare that, by failing to communicate
Article 16. Under Swedish law, however, the government and                     such measures to the Commission, the Portuguese Repub-
authorities have a right to investigate freely in certain cases                lic failed to fulfil its obligations under the same provisions;
where derogations are to be granted from the rules on                          and
prohibition laid down by Article 15.
                                                                         —     Order the Portuguese Republic to pay the costs.
Article 16(1) lists the situations in which it is possible to
derogate from the rules in Articles 12 to 14 and 15(a) and (b).          Pleas in law and main arguments
A general condition for allowing a derogation is that there is
no satisfactory alternative and that the derogation is not
detrimental to the maintenance of the populations of the                 The mandatory nature of the provisions of the third paragraph
species concerned at a favourable conservation status in their           of Article 249 requires Member States to adopt the measures
natural range. In addition, one of the reasons in Article 12(1)(a)       necessary to transpose directives addressed to them into their
to (e) must obtain. For reasons of legal certainty it is necessary       domestic law. Despite the expiry of that period, which is laid
that the situations and requirements set out in a rule on                down in Article 14(1) of Directive 98/18/EC, and despite the
derogation such as Article 16 be transposed verbatim into                specific notification requirement provided for in Article 4(2)
national rules or that there be a direct reference to the directive.     of the directive, the Portuguese Republic has not brought into
Under the Swedish legislation the government can allow                   force the necessary provisions and, in any event, has not
derogations on the basis of various considerations. The                  communicated them to the Commission.
Swedish rules on derogation therefore do not conform to
Article 16 and nor do they refer to those provisions in the
directive.                                                               (1) OJ 1998 L 144, p. 1.
(1) OJ L 206, 22.7.1992, p. 7.
(2) OJ L 305, 8.11.1997, p. 42.
                                                                         Action brought on 19 July 2001 by the Commission of
                                                                          the European Communities against the French Republic
                                                                                (Case C-286/01)
                                                                                (2001/C 245/32)
Action brought on 17 July 2001 by the Commission
of the European Communities against the Portuguese                       An action against the French Republic was brought before the
                             Republic                                    Court of Justice of the European Communities on 19 July
                                                                         2001 by the Commission of the European Communities,
                                                                         represented by P. Nemitz and B. Mongin, acting as Agents.
                         (Case C-282/01)
                                                                         The applicant claims that the Court should:
                        (2001/C 245/31)
                                                                         —     Declare that, by failing to adopt and bring into force
                                                                               within the prescribed period the laws, regulations and
An action against the Portuguese Republic was brought before                   administrative provisions necessary to comply with
the Court of Justice of the European Communities on 17 July                    Directive 98/10/EC (1), and in particular Article 6(3) and
2001 by the Commission of the European Communities,                            (4) and Articles 10, 21 and 26, the French Republic has
represented by Bernard Mongin and Francisco de Sousa Fialho,                   failed to fulfil its obligations under Article 32 of that
acting as Agents.                                                              directive and Article 249 of the EC Treaty; and


title: JUDGMENT OF THE COURT (Second Chamber) of 6 April 1995 in Case C-299/93: Ernst Bauer v. Commission of the European Communities (Arbitration clause - Residential tenancy agreement - Determination of the rent - Termination - Restitution of damage)

text:
3 . 6 . 95              EN 1                 Official Journal of the European Communities                               No C 137/3
Democratic Republic of Algeria, signed in Algiers on                    1 . dismisses the appeals;
26 April 1976 and approved on behalfofthe Community by
Council Regulation (EEC) No 2210/78 of 26 September
1978, must be interpreted as precluding a Member State                  2 . orders Radio Telefis Eireann (RTE) and Independent
from refusing to grant a benefit such as the supplementary                  Television Publications Ltd (ITP) to pay the costs of the
allowance from the FNS, which is provided for under its                     appeals lodged by them;
legislation for its own nationals who are resident in that
State, to the widow ofan Algerian worker, who is resident in
that Member State and is the recipient of a survivor 's                 3 . orders Intellectual Property Owners Inc. (IPO) to bear
pension there, on the ground that she is of Algerian                        its own costs and to pay those incurred by the
                                                                            Commission due to its intervention.
nationality.
                                                                        (M OJ No C 307, 27. 11 . 1991 .
(M OJ No C 120 , 30 . 4 . 1994 .
( 2 ) OJ No L 263 , 27 . 9 . 1978 , p . 1 .
                                                                                JUDGMENT OF THE COURT
                                                                                ( Second Chamber )
                                                                                of 6 April 1995
                                                                        in Case C-299/93 : Ernst Bauer v. Commission of the
                JUDGMENT OF THE COURT
                                                                                European Communities (*)
                          of 6 April 1996
                                                                        (Arbitration clause — Residential tenancy agreement —
in Joined Cases C-241/91 P and C-242/91 P: Radio Telefis                Determination of the rent — Termination — Restitution of
Eireann ( RTE ) and Independent Television Publications Ltd                                         damage)
    ( ITP) v. Commission of the European Communities C )
                                                                                95/C 137/06
 (Competition — Abuse of a dominant position —
                                Copyright)
                             ( 95/C 137/05 )                                           (Language of the case: Italian)
                                                                        (Provisional translation; the definitive translation will be
                 (Language of the case: English)                                 published in the European Court Reports)
In Joined Cases C 241/91 P and C 242/91 P : Radio Telefis               In Case C-299/93 : Ernst Bauer ( Agent: Giorgio Gozzi )
Eireann ( RTE ), a public authority having its office in Dublin         v. Commission of the European Communities (Agents :
 ( Agents : W. Alexander and G. van der Wal ) and                       Gianluigi Valsesia and Alberto Dal Ferro ) — application for
Independent Television Publications Ltd ( ITP ), a company              a declaration that the request for surrender of tenanted
incorporated under English law and having its registered                residential premises and the increase in the rent payable for
office in London (Agents : M. J. Reynolds and R. Strivens ),            those premises were unlawful, and for compensation for the
supported by Intellectual Property Owners Inc . ( IPO ),                additional rent paid on the basis of that increase and for
having its registered office in Washington DC, United States            material and non-material damage incurred as a result of the
of America ( Agents : D. R. Barrett and G. I. F. Leigh ) —              early surrender of the premises — the Court ( Second
appeals against two judgments of the Court of First Instance            Chamber ), composed of F. A. Schockweiler, President of the
of the European Communities ( Second Chamber ) of 10 July               Chamber, G. F. Mancini ( Rapporteur ) and G. Hirsch,
 1991 in Case T-69/89 RTE v. Commission [ 1991 ] ECR                    Judges ; G. Cosmas, Advocate-General; R. Grass, Registrar,
11-485 and in Case T-76/89 ITP v. Commission [ 1991 ] ECR               gave a judgment on 6 April 1995 , the operative part of
                                                                        which is as follows :
11-575 , seeking to have those judgments set aside, the other
party to the proceedings being Commission of the European
Communities ( Agent: Julian Currall ), supported by Magill              1 . the application is dismissed;
TV Guide Ltd , having its registered office in Dublin ( Agent:
Gore & Grimes , Solicitors ) — the Court, composed of G. C.
Rodriguez Iglesias ( Rapporteur ), President, F. A.                     2 . the applicant is ordered to pay the costs.
Schockweiler and P. J. G. Kapteyn ( Presidents of
Chambers ), G. F. Mancini, C. N. Kakouris, J. C. Moitinho
de Almeida and J. L. Murray, Judges ; C. Gulmann,                       (M OJ No C 177, 29 . 6 . 1993 .
Advocate-General; L. Hewlett, Administrator, for the
Registrar, has given a judgment on 6 April 1995 , in which
it :


title: Case C-145/10: Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 22 March 2010 — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/17

         Reference for a preliminary ruling from the Handelsgericht Wien (Austria) lodged on 22 March 2010 — Eva-Maria Painer v Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG
   (Case C-145/10)
   2010/C 148/27
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Eva-Maria Painer

      Defendants: Standard VerlagsGmbH, Axel Springer AG, Süddeutsche Zeitung GmbH, SPIEGEL-Verlag Rudolf AUGSTEIN GmbH & Co KG, Verlag M. DuMont Schauberg Expedition der Kölnischen Zeitung GmbH & Co KG

      Questions referred

               1.

               Is Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1) to be interpreted as meaning that its application and therefore joint legal proceedings are not precluded where actions brought against several defendants for copyright infringements identical in substance are based on differing national legal grounds the essential elements of which are nevertheless identical in substance — such as applies to all European States in proceedings for a prohibitory injunction, not based on fault, in claims for reasonable remuneration for copyright infringements and in claims in damages for unlawful exploitation?

               2.

                           (a)

                           Is Article 5(3)(d) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society, (2) in the light of Article 5(5) of that directive, to be interpreted as meaning that its application is not precluded where a press report quoting a work or other protected matter is not a literary work protected by copyright?

                           (b)

                           Is Article 5(3)(d) of the directive, in the light of Article 5(5) thereof to be interpreted as meaning that its application is not precluded where the name of the author or performer is not attached to the work or other protected matter quoted?

               3.

                           (a)

                           Is Article 5(3)(e) of Directive 2001/29, in the light of Article 5(5) thereof, to be interpreted as meaning that in the interests of criminal justice in the context of public security its application requires a specific, current and express appeal for publication of the image on the part of the security authorities, i.e. that publication of the image must be officially ordered for search purposes, or otherwise an offence is committed?

                           (b)

                           If the answer to question 3a should be in the negative: are the media permitted to rely on Article 5(3)(e) of the directive even if, without such a search request being made by the authorities, they should decide, of their own volition, whether images should be published ‘in the interests of public security’?

                           (c)

                           If the answer to question 3b should be in the affirmative: is it then sufficient for the media to assert after the event that publication of an image served to trace a person or is it always necessary for there to be a specific appeal to readers to assist in a search in the investigation of an offence, which must be directly linked to the publication of the photograph?

               4.

               Are Article 1(1) of Directive 2001/29 in conjunction with Article 5(5) thereof and Article 12 of the Berne Convention for the Protection of Literary and Artistic Works (Paris Act of 24 July 1971), as revised on 28 September 1979, particularly in the light of Article 1 of the First Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) of 20 March 1952 and Article 17 of the Charter of Fundamental Rights of the European Union, (3) to be interpreted as meaning that photographic works and/or photographs, particularly portrait photos, are afforded ‘weaker’ copyright protection or no copyright protection at all against adaptations because, in view of their ‘realistic image’, the degree of formative freedom is too minor?

      (1)  OJ 2001 L 12, p. 1.

      (2)  OJ 2001 L 167, p. 10.

      (3)  OJ 2000 C 364, p. 1.


title: Case C-143/17: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 20 March 2017 — Catia Passeri v Fondazione Teatro dell’Opera di Roma

text:
               31.7.2017

               EN

               Official Journal of the European Union

               C 249/17

         Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 20 March 2017 — Catia Passeri v Fondazione Teatro dell’Opera di Roma
   (Case C-143/17)
   (2017/C 249/26)
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Appellant: Catia Passeri

      Respondent: Fondazione Teatro dell’Opera di Roma

      Question referred

   Are the provisions of national law in Article 3(7) of Decree Law No 64 of 30 April 2010, converted into Law No 100 of 29 June 2010, according to which ‘for workers in the performing arts belonging to the category of dancers, the retirement age is fixed for men and women at the forty-fifth year of chronological age, with the use, for workers to whom the contributory or mixed system applies in full, of the transformation coefficient referred to in Article 1(6) of the Law of 8 August 1995, No 335, relative to the higher age. For the two years following the date of entry into force of this provision, the workers referred to in this paragraph employed on contracts of indefinite duration, who have reached or passed the retirement age, are afforded the option, renewable annually, of remaining in service. This option must be exercised through a formal application to be presented to the ENPALS within two months of the date of entry into force of this provision, or at least three months before pension rights are fully vested, without prejudice to the maximum retirement age of forty-seven years for women and fifty-two for men’, contrary to the principle of non-discrimination on grounds of sex, laid down in Directive 2006/54 (1) and in the Charter of Fundamental Rights of the European Union (Article 21)?

      (1)  Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast) (OJ 2006 L 204, p. 23).


title: Case T-76/08: Judgment of the General Court of 2 February 2012 — EI du Pont de Nemours and Others v Commission (Competition — Agreements, decisions and concerted practices — Market for chloroprene rubber — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Price-fixing — Market-sharing — Imputability of the unlawful conduct — Joint venture — Guidelines on the method of setting fines — Mitigating circumstances — Cooperation)

text:
               17.3.2012

               EN

               Official Journal of the European Union

               C 80/15

         Judgment of the General Court of 2 February 2012 — EI du Pont de Nemours and Others v Commission
   (Case T-76/08) (1)

   (Competition - Agreements, decisions and concerted practices - Market for chloroprene rubber - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Price-fixing - Market-sharing - Imputability of the unlawful conduct - Joint venture - Guidelines on the method of setting fines - Mitigating circumstances - Cooperation)
   2012/C 80/21
   Language of the case: English

      Parties

      Applicants: EI du Pont de Nemours and Company (Wilmington, Delaware, United States); DuPont Performance Elastomers LLC (Wilmington); and DuPont Performance Elastomers SA (Grand-Saconnex, Switzerland) (represented by: J. Boyce and A. Lyle-Smythe, Solicitors)

      Defendant: European Commission (represented: initially by X. Lewis and V. Bottka, subsequently by V. Bottka and V. Di Bucci, and lastly by V. Bottka, S. Noë and A. Biolan, Agents)

      Re:

   APPLICATION for, first, annulment of Articles 1 and 2 of Commission Decision C(2007) 5910 final of 5 December 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/38.629 — Chloroprene Rubber), as amended by Commission Decision C(2008) 2974 final of 23 June 2008, in that they refer to EI du Pont de Nemours and Company and, second, a reduction in the amount of the fine imposed jointly and severally on the applicants by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders EI du Pont de Nemours and Company, DuPont Performance Elastomers LLC and DuPont Performance Elastomers SA to pay the costs.

      (1)  OJ C 116, 9.5.2008.


title: Judgment of the Court (Fifth Chamber) of 16 March 2000 in Joined Cases C-395/96 P and C-396/96 P: Compagnie Maritime Belge Transports SA (C-395/96 P), Compagnie Maritime Belge SA (C-395/96 P) and Dafra-Lines A/S (C-396/96 P) v Commission of the European Communities (Competition — International maritime transport — Liner conferences — Regulation (EEC) No 4056/86 — Article 86 of the EC Treaty (now Article 82 EC) — Collective dominant position — Exclusivity agreement between national authorities and liner conferences — Liner conference insisting on application of the agreement — Fighting ships — Loyalty rebates — Rights of defence — Fines — Assessment criteria)

text:
27.5.2000                EN                     Official Journal of the European Communities                                             C 149/3
Article 3(1) of Decision No 3/80 of the Association Council of             Article 73d(1)(b) of the EC Treaty (now Article 58(1)(b) EC) must
19 September 1998 on the application of the social security schemes        be interpreted as precluding a system of prior authorisation for direct
of the Member States of the European Communities to Turkish                foreign investments which confines itself to defining in general terms
workers and members of their families must be interpreted as not           the affected investments as being investments that are such as to
precluding a Member State from applying to Turkish workers                 represent a threat to public policy and public security, with the result
legislation which, for the purposes of awarding a retirement pension       that the persons concerned are unable to ascertain the specific
and determining the social security number allocated for that purpose,     circumstances in which prior authorisation is required.
takes as the conclusive date of birth the one given in the first
declaration made by the person concerned to a social security authority
in that Member State and allows another date of birth to be taken
                                                                           (1) OJ C 100 of 10.4.1999.
into account only if a document is produced the original of which was
issued before that declaration was made.
(1) OJ C 209 of 4.7.1998 and OJ C 258 of 15.8.1998.
                                                                                JUDGMENT OF THE COURT
                 JUDGMENT OF THE COURT                                                               (Fifth Chamber)
                          of 14 March 2000
                                                                                of 16 March 2000
in Case C-54/99 (reference for a preliminary ruling from
the Conseil d’État, France): Association Église de Scientol-             in Joined Cases C-395/96 P and C-396/96 P: Compagnie
ogie de Paris and Scientology International Reserves                       Maritime Belge Transports SA (C-395/96 P), Compagnie
                 Trust v The Prime Minister (1)                            Maritime Belge SA (C-395/96 P) and Dafra-Lines A/S
                                                                           (C-396/96 P) v Commission of the European Communi-
                                                                                ties (1)
(Free movement of capital — Direct foreign investments —
   Prior authorisation — Public policy and public security)
                                                                           (Competition — International maritime transport — Liner
                                                                           conferences — Regulation (EEC) No 4056/86 — Article 86
                           (2000/C 149/04)
                                                                           of the EC Treaty (now Article 82 EC) — Collective dominant
                                                                           position — Exclusivity agreement between national auth-
                                                                           orities and liner conferences — Liner conference insisting on
                     (Language of the case: French)                        application of the agreement — Fighting ships — Loyalty
                                                                           rebates — Rights of defence — Fines — Assessment criteria)
(Provisional translation; the definitive translation will be published                               (2000/C 149/05)
                    in the European Court Reports)
In Case C-54/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Conseil d’État,                                   (Language of the case: English)
France, for a preliminary ruling in the proceedings pending
before that court between Association Église de Scientologie
de Paris, Scientology International Reserves Trust and The
Prime Minister — on the interpretation of Article 73d(1)(b) of
the EC Treaty (now Article 58(1)(b) EC) — the Court,
composed of: G.C. Rodrı́guez Iglesias, President, J.C. Moitinho            In Joined Cases C-395/96 P and C-396/96 P: Compagnie
de Almeida, D.A.O. Edward, R. Schintgen (Presidents of                     Maritime Belge Transports SA (C-395/96 P), established in
Chambers), P.J.G. Kapteyn, C. Gulmann (Rapporteur), J.-P.                  Antwerp, Belgium, Compagnie Maritime Belge SA (C-395/96
Puissochet, G. Hirsch, H. Ragnemalm, M. Wathelet and V.                    P), established in Antwerp, and Dafra-Lines A/S (C-396/96 P),
Skouris, Judges; A. Saggio, Advocate General; R. Grass, Regis-             established in Copenhagen, Denmark, represented by M. and
trar, has given a judgment on 14 March 2000, in which it has               D. Waelbroeck, of the Brussels Bar, with an address for service
ruled:                                                                     in Luxembourg at the Chambers of E. Arendt, 34 Rue
 ---pagebreak--- C 149/4                EN                     Official Journal of the European Communities                                            27.5.2000
Philippe II — appeal against the judgment of the Court of First                             JUDGMENT OF THE COURT
Instance of the European Communities (Third Chamber,
Extended Composition) of 8 October 1996 in Joined Cases
                                                                                (Sixth Chamber)
T-24/93 to T-26/93 and T-28/93 Compagnie Maritime Belge
Transports and Others v Commission [1996] ECR II-1201,
seeking to have that judgment set aside, the other parties to the                                  of 16 March 2000
proceedings being Commission of the European Communities
(Agent: R. Lyal, assisted by J. Flynn), Grimaldi, established            in Case C-329/97 (reference for a preliminary ruling
in Palermo, Italy, and Cobelfret, established in Antwerp,                from the Bundesverwaltungsgericht): Sezgin Ergat v Stadt
represented by M. Clough, Solicitor, with an address for service                                          Ulm (1)
in Luxembourg at the Chambers of A. May, 31 Grand-Rue,
interveners at first instance, Deutsche Afrika-Linien GmbH &
Co., established in Hamburg, Germany, Nedlloyd Lijnen BV,                (EEC-Turkey Association Agreement — Free movement of
established in Rotterdam, Netherlands, applicants at first               workers — First paragraph of Article 7 of Decision No 1/80
instance — the Court (Fifth Chamber), composed of: D.A.O.                of the Association Council — Member of a Turkish worker’s
Edward (Rapporteur), President of the Chamber, J.C. Moitinho             family — Extension of residence permit — Definition of
de Almeida, L. Sevón, C. Gulmann and P. Jann, Judges;                   legal residence — Application for extension of a temporary
N. Fennelly, Advocate General; H. von Holstein, Deputy                                residence permit lodged after its expiry)
Registrar, for the Registrar, has given a judgment on 16 March
2000, in which it:                                                                                (2000/C 149/06)
                                                                                (Language of the case: German)
1. Sets aside the judgment of the Court of First Instance of
    8 October 1996 in Joined Cases T-24/93 to T-26/93 and
    T-28/93 Compagnie Maritime Belge Transports and Others v
    Commission to the extent that it upheld the fines imposed on         (Provisional translation; the definitive translation will be published
    Compagnie Maritime Belge Transport SA, Compagnie Maritime                                 in the European Court Reports)
    Belge SA and Dafra-Lines A/S;
                                                                         In Case C-329/97: Reference to the Court under Article 177 of
                                                                         the EC Treaty (now Article 234 EC) by the Bundesverwaltungs-
                                                                         gericht, Germany, for a preliminary ruling in the proceedings
2. Annuls Articles 6 and 7 of Commission Decision 93/82/EEC              pending before that court between Sezgin Ergat and Stadt Ulm
    of 23 December 1992 relating to a proceeding pursuant to             — on the interpretation of the first paragraph of Article 7 of
    Articles 85 (IV/32.448 and IV/32.450: Cewal, Cowac and               Decision No 1/80 of the Association Council of 19 September
    Ukwal) and 86 (IV/32.448 and IV/32.450: Cewal) of the EEC            1980 on the development of the Association, adopted by the
    Treaty as regards Compagnie Maritime Belge Transport SA,             Association Council established by the Association Agreement
    Compagnie Maritime Belge SA and Dafra-Lines A/S;                     between the European Economic Community and Turkey
                                                                         — the Court (Sixth Chamber), composed of: R. Schintgen
                                                                         (Rapporteur), President of the Second Chamber, acting as
                                                                         President of the Sixth Chamber, P.J.G. Kapteyn and G. Hirsch,
3. Dismisses the remainder of the appeal;                                Judges; J. Mischo, Advocate General ; H. von Holstein, Deputy
                                                                         Registrar, has given a judgment on 16 March 2000, in which
                                                                         it has ruled:
4. Orders Compagnie Maritime Belge Transport SA, Compagnie
                                                                         A Turkish national, who was authorised to enter a Member State for
    Maritime Belge SA and Dafra-Lines A/S to bear their own
                                                                         the purpose of re-uniting the family of a Turkish worker belonging to
    costs, and to pay three quarters of those of the Commission of
                                                                         the legal labour force of that State, has been legally resident there for
    the European Communities and all those of Grimaldi and
                                                                         more than five years and has been in legal employment of various
    Cobelfret.
                                                                         kinds, with interruptions, does not lose the benefit of the rights
                                                                         conferred on him by the second indent of the first paragraph of Article
                                                                         7 of Decision No 1/80 of 19 September 1980 on the development
                                                                         of the Association, adopted by the Association Council established by
                                                                         the Association Agreement between the EEC and Turkey, and, in
                                                                         particular, the right to extend his residence permit in the host Member
(1) OJ C 54 of 22.2.1997.                                                State, where his residence permit had expired before the date on which
                                                                         he lodged an application to extend it which was refused by the
                                                                         competent national authorities.
                                                                         (1) OJ C 357 of 22.11.1997.


title: Judgment of the Court of First Instance of 11 March 1999 in Case T-137/94: ARBED SA v. Commission of the European Communities (ECSC Treaty - Competition - Agreements between undertakings, decisions by associations of undertakings and concerted practices - Price-fixing - Market sharing - Systems for the exchange of information)

text:
5.6.1999                 EN                        Official Journal of the European Communities                                          C 160/13
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                       JUDGMENT OF THE COURT OF FIRST INSTANCE
                          of 11 March 1999                                                             of 11 March 1999
in Case T-137/94: ARBED SA v. Commission of the                               in Case T-138/94: COCKERILL-SAMBRE SA v. Com-
                    European Communities (1)                                              mission of the European Communities (1)
(ECSC Treaty — Competition — Agreements between                               (ECSC Treaty — Competition — Agreements between
undertakings, decisions by associations of undertakings and                   undertakings, decisions by associations of undertakings and
concerted practices — Price-fixing — Market sharing —                         concerted practices — Price-fixing — Market sharing —
            Systems for the exchange of information)                                      Systems for the exchange of information)
                           (1999/C 160/25)                                                              (1999/C 160/26)
                     (Language of the case: French)                                                (Language of the case: French)
In case T-137/94: ARBED SA, having its registered office in                   In case T-138/94: Cockerill-Sambre SA, having its registered
Luxembourg, represented by Alexandre Vandencasteele, of the                   office in Luxembourg, represented by Alexandre Vandencastee-
Brussels Bar, with an address for service in Luxembourg at the                le, of the Brussels Bar, with an address for service in Luxem-
Chambers of Paul Ehmann, 19, avenue de la Liberté, v.                         bourg at the Chambers of Ernest Arendt, 8-10, rue Mathias
Commission of the European Communities (Agents: initially                     Hardt, v. Commission of the European Communities, (Agents:
Julian Currall and Géraud Sajust de Bergues, and subsequently                 initially Julian Currall and Géraud Sajust de Bergues, and
Jean-Louis Dewost, Julian Currall and Guy Charrier, assisted                  subsequently Jean-Louis Dewost, Julian Currall and Guy Charri-
by Jean-Yves Art) — application, principally, for the annulment               er, assisted by Jean-Yves Art) — application, principally, for
of Commission Decision 94/215/ECSC of 16 February 1994                        the annulment of Commission Decision 94/215/ECSC of
relating to a proceeding pursuant to article 65 of the ECSC                   16 February 1994 relating to a proceeding pursuant to article
Treaty concerning agreements and concerted practices engaged                  65 of the ECSC Treaty concerning agreements and concerted
in by European producers of beams (OJ L 116, 6.5.1994, p. 1)                  practices engaged in by European producers of beams (OJ
— the Court of First Instance (Second Chamber, Extended                       L 116, 6.5.1994, p. 1) — the Court of First Instance
Composition), composed of: C. W. Bellamy, acting as President,                (Second Chamber, Extended Composition), composed of:
A. Potocki and J. Pirrung, Judges; J. Palacio González, Adminis-             C. W. Bellamy, acting as President, A. Potocki and J. Pirrung,
trator, for the Registrar, has given a judgment on 11 March                   Judges; J. Palacio González, Administrator, for the Registrar,
1999, in which it:                                                            has given a judgment on 11 March 1999, in which it:
1. annuls article 1 of Commission Decision 94/215/ECSC of                     1. annuls article 1 of Commission Decision 94/215/ECSC of
     16 February 1994 relating to a proceeding pursuant to article                 16 February 1994 relating to a proceeding pursuant to Article
     65 of the ECSC Treaty concerning agreements and concerted                     65 of the ECSC Treaty concerning agreements and concerted
     practices engaged in by European producers of beams in so far as              practices engaged in by European producers of beams in so far as
     it holds the applicant liable for the participation by its subsidiary         it finds that the applicant participated in an agreement to share
     TradeARBED in an agreement to share the Italian market which                  the Italian market which lasted three months and in price-fixing
     lasted three months,                                                          on the Danish market for the period from 1 July to 3 November
                                                                                1988,
2. fixes the amount of the fine imposed on the applicant by article 4
     of Decision 94/215/ECSC at EUR 10 000 000,                               2. fixes the amount of the fine imposed on the applicant by article 4
                                                                                of Decision 94/215/ECSC at EUR 3 580 000,
3. dismisses the remainder of the action,
                                                                              3. dismisses the remainder of the action,
4. orders the applicant to bear its own costs and to pay four fifths
     of the defendant’s costs. The defendant shall bear one fifth of its      4. orders the applicant to bear its own costs and to pay four fifths
     own costs.                                                                    of the defendant’s costs. The defendant shall bear one fifth of its
                                                                                own costs.
(1) OJ C 146, 28.5.1994.                                                      (1) OJ C 146, 28.5.1994.


               23.2.2008

               EN

               Official Journal of the European Union

               C 51/1

         (2008/C 51/01)
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 37, 9.2.2008

   Past publications

      OJ C 22, 26.1.2008

      OJ C 8, 12.1.2008

      OJ C 315, 22.12.2007

      OJ C 297, 8.12.2007

      OJ C 283, 24.11.2007

      OJ C 269, 10.11.2007

   These texts are available on:

               EUR-Lex: http://eur-lex.europa.eu


title: Case T-76/06: Action brought on  24 February 2006  — Plásticos Españoles (Aspla) v Commission

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/24

         Action brought on 24 February 2006 — Plásticos Españoles (Aspla) v Commission
   (Case T-76/06)
   (2006/C 108/45)
   Language of the case: Spanish
   Parties

      Applicant: Plásticos Españoles S.A. (Aspla) (Torrelavega, Spain) (represented by: E. Garayar and A. García Castillo, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare the present action for annulment admissible;

               —

               annul Decision C(2005) 4634 final, of 30 November 2005, in Case COMP/F/38.354 — Industrial bags, alternatively substantially reduce the amount of the fine imposed on Plásticos Españoles S.A.;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   This action seeks annulment of Decision C(2005) 4634 final, of 30 November 2005, in Case COMP/F/38.354 — Industrial bags. In the contested decision, the Commission declared that the applicant, among other undertakings, had infringed Article 81 EC by having participated, between 1991 and 2002, in agreements and concerted practices in the industrial plastic bag sector in Germany, Belgium, the Netherlands, Luxemburg, Spain and France. For those infringements, the Commission imposed a fine on the applicant jointly and severally with the undertaking Armando Álvarez S.A..
   In support of its claims the applicant puts forward the following pleas:

               —

               error in the assessment of the facts by the Commission in relation to the scale of the applicant's conduct, to the scope of the product markets and geographic markets concerned and the product quotas which serve as a basis for calculating the fines;

               —

               violation of Article 81(1) EC and the principle of legal certainty, on account of incorrect classification of the infringement as ‘single and continuous’ and incorrect determination of the responsibility of the undertakings sanctioned;

               —

               in the alternative, violation of Article 81(1) EC and the principle of legal certainty and equal treatment on account of incorrect classification of the infringement as ‘single and continuous’ with respect to the applicant, incorrect assessment of the applicant's individual liability and discrimination as between itself and the undertaking Stempher B.V. which, according to the Commission, had also participated in the infringement in question;

               —

               infringement of Article 15(2) of Regulation No 17/1962 (1) and the Guidelines on the method of setting of fines on account of manifest error in the calculation of the fine imposed on the applicant and a manifest infringement of the principle of equal treatment and proportionality in determining the amounts.

      (1)  EEC Council: Regulation No 17: First Regulation implementing Articles 85 and 86 of the Treaty (English special edition: Series I Chapter 1959-1962 p. 87)


title: Case C-604/11: Judgment of the Court (Fourth Chamber) of 30 May 2013 (request for a preliminary ruling from the Juzgado de Primera Instancia n °12 de Madrid — Spain) — Genil 48 SL, Comercial Hostelera de Grandes Vinos SL v Bankinter SA, Banco Bilbao Vizcaya Argentaria SA (Directive 2004/39/EC — Markets in financial instruments — Article 19 — Conduct of business obligations when providing investment services to clients — Investment advice — Other investment services — Obligation to assess the suitability or appropriateness of the service to be provided — Contractual consequences of non-compliance with that obligation — Investment service offered as part of a financial product — Interest-rate swap agreements to protect against the risk of variations of interest rates on financial products)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/16

         Judgment of the Court (Fourth Chamber) of 30 May 2013 (request for a preliminary ruling from the Juzgado de Primera Instancia no 12 de Madrid — Spain) — Genil 48 SL, Comercial Hostelera de Grandes Vinos SL v Bankinter SA, Banco Bilbao Vizcaya Argentaria SA
   (Case C-604/11) (1)

   (Directive 2004/39/EC - Markets in financial instruments - Article 19 - Conduct of business obligations when providing investment services to clients - Investment advice - Other investment services - Obligation to assess the suitability or appropriateness of the service to be provided - Contractual consequences of non-compliance with that obligation - Investment service offered as part of a financial product - Interest-rate swap agreements to protect against the risk of variations of interest rates on financial products)
   2013/C 225/25
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 12 de Madrid

      Parties to the main proceedings

      Applicant: Genil 48 SL, Comercial Hostelera de Grandes Vinos SL

      Defendants: Bankinter SA, Banco Bilbao Vizcaya Argentaria SA

      Re:

   Request for a preliminary ruling — Juzgado de Primera Instancia No 12 de Madrid — Interpretation of Arts 4(1), point (4), and 19(4), (5) and (9) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC (OJ 2004 L 145, p. 1) — Interest rate swap arrangements to cover the risk of variations of interest rates on other financial products — Suitability test

      Operative part of the judgment

               1.

               Article 19(9) of Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments amending Council Directives 85/611/EEC and 93/6/EEC and Directive 2000/12/EC of the European Parliament and of the Council and repealing Council Directive 93/22/EEC must be interpreted as meaning, firstly, that an investment service is offered as part of a financial product only when it forms an integral part thereof at the time when that financial product is offered to the client and, secondly, that the provisions of European Union legislation and the common European standards referred to by that provision must enable there to be a risk assessment of clients and/or include information requirements, which also encompass the investment service which forms an integral part of the financial product in question, in order for that service no longer to be subject to the obligations laid down in Article 19.

               2.

               Article 4(1)(4) of Directive 2004/39 must be interpreted as meaning that the offering of a swap agreement to a client in order to cover the risk of variation of interest rates on a financial product for which that client has subscribed constitutes investment advice, as defined in that provision, provided that the recommendation to subscribe to such a swap agreement is made to that client in his capacity as an investor, it is presented as suitable for that person or based on a consideration of the circumstances of that person and it is not made solely through distribution channels or intended for the public.

               3.

               It is for the internal legal order of each Member State to determine the contractual consequences where an investment firm offering an investment service fails to comply with the assessment requirements laid down in Article 19(4) and (5) of Directive 2004/39, subject to observance of the principles of equivalence and effectiveness.

      (1)  OJ C 32, 4.2.2012.


title: Case T-169/10: Judgment of the General Court of 24 May 2012 — Grupo Osborne v OHIM — Industria Licorera Quezalteca (TORO XL) (Community trade mark — Opposition proceedings — Application for Community word mark TORO XL — Early Community figurative mark XL — Relative ground for refusal — Article 8(1)(b) of Regulation No 207/2009 — No likelihood of confusion)

text:
               7.7.2012

               EN

               Official Journal of the European Union

               C 200/12

         Judgment of the General Court of 24 May 2012 — Grupo Osborne v OHIM — Industria Licorera Quezalteca (TORO XL)
   (Case T-169/10) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark TORO XL - Early Community figurative mark XL - Relative ground for refusal - Article 8(1)(b) of Regulation No 207/2009 - No likelihood of confusion)
   2012/C 200/22
   Language of the case: Spanish

      Parties

      Applicant: Grupo Osborne, SA (El Puerto de Santa Maria, Spain) (represented by: J.M. Iglesias Monravá, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Industria Licorera Quezalteca, SA (Quetzal Tenango, Guatemala)

      Re:

   Action brought against the decision of the second Board of Appeal of OHIM of 22 January 2010 (Case R 223/2009-2) concerning opposition proceedings between Industria Licorera Quezalteca, SA and Grupo Osborne, SA.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 22 January 2010 (Case R 223/2009-2).

               2.

               Orders OHIM to pay the costs.

      (1)  OJ C 148, 5.6.2010.


title: Case T-584/15: Action brought on 7 October 2015 — POA/Commission

text:
               7.12.2015

               EN

               Official Journal of the European Union

               C 406/40

         Action brought on 7 October 2015 — POA/Commission
   (Case T-584/15)
   (2015/C 406/41)
   Language of the case: English

      Parties

      Applicant: Pagkyprios organismos ageladotrofon Dimosia Ltd (POA) (Latsia, Cyprus) (represented by: N. Korogiannakis, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Commission to accept the dossier CY/PDO/0005/01243 lodged by the authorities of the Republic of Cyprus as meeting the conditions laid down by Regulation (EU) No 1151/2012 of the European Parliament and of the Council, of 21 November 2012, on quality schemes for agricultural products and foodstuffs (OJ 2012 L 343, p. 1), as provided by Article 50 (1) of this regulation, and to proceed to its publication in the Official Journal of the European Union with reference 2015/C 246/12;

               —

               order the Commission to pay the costs of the applicant.

      Pleas in law and main arguments

   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging a manifest error of assessment of the Commission on the conformity of the application CY/PDO/0005/01243 with Regulation (EU) No 1151/2012

                           —

                           The application CY/PDO/0005/01243 departs from the standard CYS 94 (Part 1 & 2) 1985 concerning the milk content in the ‘Halloumi’ production process.

                           —

                           The application CY/PDO/0005/01243 violates Article 7 of Regulation (EU) No 1151/2012.

               2.

               Second plea in law, alleging that the Commission did not verify the compliance of application CY/PDO/0005/01243 with the procedure laid down by Regulation (EU) No 1151/2012

                           —

                           No reasonable time was given for the right to appeal.

                           —

                           The national authorities failed to scrutinize properly the objection raised by the applicant.


title: Case T-332/09: Action brought on 20 August 2009 — Electrabel v Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/71

         Action brought on 20 August 2009 — Electrabel v Commission
   (Case T-332/09)
   2009/C 267/129
   Language of the case: French

      Parties

      Applicant: Electrabel (represented by: M. Pittie and P. Honoré, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               declare the application admissible and well founded;

               —

               as the main plea, annul Articles 2 and 3 of the contested decision or at least reduce the amount of the fine imposed on the applicant under Article 2 of the contested decision;

               —

               in any event, order the Commission to pay all the costs incurred by the applicant in connection with these proceedings.

      Pleas in law and main arguments

   By the present proceedings, the applicant seeks primarily the annulment of Commission Decision C(2009) 4416 final of 10 June 2009, by which the Commission found that the applicant had infringed Article 7(1) of Regulation No 4064/89 (1) by implementing a concentration having Community dimension before notifying it, and before it was declared compatible with the common market. The applicant seeks, in the alternative, the annulment or at least the reduction of the amount of the fine imposed on it by Article 2 of the contested decision.
   In support of its action the applicant puts forward four pleas:

               —

               incorrect classification of the infringement on account, in particular, of a confusion between the infringement consisting in the failure to notify the Commission and the infringement consisting in the advance implementation of the concentration and, therefore, a contradiction in the reasoning between the classification of the infringement and the substantive assessment of its duration;

               —

               infringement of Articles 3(3) and 14(2) of Regulation No 4064/89 and the guidelines on the definition of concentration, by holding that there was an acquisition of de facto sole control of the Compagnie Nationale du Rhône by Electrabel on 23 December 2003. The applicant claims that the Commission has ignored relevant aspects of the case, in particular, the fact that the Compagnie Nationale du Rhône is a public company; that it has applied the definition of de facto sole control that it has established in its guidelines on the definition of concentration incompletely and erroneously and (iii) has committed several manifest errors of assessment relating, in particular, to the governance bodies of the Compagnie Nationale du Rhône;

               —

               that the Commission's power to impose a fine in this case is time-barred and

               —

               a breach of the principles of proportionality, sound administration and the principle of the protection of legitimate expectations by imposing a fine on the applicant of such a large amount for an infringement which had no effect on competition.

      (1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1; republished in its entirety in OJ 1990 L 257, p. 13, as rectifed).


title: Case T-447/12: Action brought on 10 October 2012 — Visa Europe v Commission

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/26

         Action brought on 10 October 2012 — Visa Europe v Commission
   (Case T-447/12)
   2012/C 379/46
   Language of the case: English

      Parties

      Applicant: Visa Europe Ltd (London, United Kingdom) (represented by: A. Renshaw and J. Aitken, Solicitors)

      Defendant: European Commission

      Form of order sought

   The applicant claim that the Court should:

               —

               Annul the Commission’s decision of 31 July 2012 given in Case COMP/D1/39398 — Visa MIF, insofar as it rejects Visa Europe’s request to modify the debit multilateral interchange fee (MIF) cap made legally binding by the Commission’s decision of 8 December 2010; and

               —

               Order the defendant to pay the costs of the present proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging that

                           —

                           the Commission breached Art. 41 of the Charter of Fundamental Rights of the European Union, Visa Europe’s rights of defence and the principle of sound administration by not providing Visa Europe with the opportunity to effectively make known its views on the relevant facts and on the Commission’s objections regarding the alleged shortcomings in the economic study submitted by Visa Europe before definitively rejecting Visa Europe’s request to modify the MIF cap.

               2.

               Second plea in law, alleging that

                           —

                           the Commission breached Art. 9(2)(a) of Regulation 1/2003 (1), the principle of sound administration and Art. 296 TFEU by not comparing the economic study submitted by Visa Europe with the studies previously used to calculate the MIF cap and by relying on irrelevant considerations when rejecting Visa Europe’s request to modify the MIF cap.

               3.

               Third plea in law, alleging that

                           —

                           the Commission committed a manifest error of assessment. It rejected evidence submitted by Visa Europe on the basis of flawed considerations, as well as on the basis of objections inconsistent with the Commission’s own precedents. Furthermore, the Commission failed to appreciate that its objections, even if they were correct, would nevertheless fail to justify the refusal to modify the MIF cap.

      (1)  Council Regulation No 1/2003 on the implementation of the rules on competition laid down in Articles [101] and [102] of the [TFEU] (OJ L 1, p. 1)


title: Order of the Court (Sixth Chamber) of 7 April 2005 in Case C-160/04 P Gustaaf Van Dyck v Commission of the European Communities (Appeal — Officials — Lists for promotion — Act adversely affecting an official — Preparatory acts)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/20

      ORDER OF THE COURT

   (Sixth Chamber)
   of 7 April 2005
   in Case C-160/04 P Gustaaf Van Dyck v Commission of the European Communities (1)

   (Appeal - Officials - Lists for promotion - Act adversely affecting an official - Preparatory acts)
   (2005/C 182/38)
   Language of the case: Dutch
   In Case C-160/04 P: appeal under Article 56 of the Statute of the Court of Justice, lodged at the Court on 19 March 2004 by Gustaaf Van Dyck, an official of the Commission of the European Communities, residing in Wuustwezel (Belgium) (lawyer: A. Bywater, assisted by W. Mertens), the other party to the proceedings being the Commission of the European Communities (Agents: F. Clotuche-Duvieusart and A. Weimar) — the Court (Sixth Chamber), composed of A. Borg Barthet, President of the Chamber, A. Ó Caoimh and U. Lõhmus (Rapporteur), Judges; P. Léger, Advocate General; R. Grass, Registrar, made an order on 7 April 2005, the operative part of which is as follows:

               1.

               The appeal is dismissed;

               2.

               Mr Van Dyck shall pay the costs.

      (1)  OJ C 106 of 30.4.2004.


title: Case C-462/06: Reference for a preliminary ruling from the Cour de cassation (France) lodged on 20 November 2006 — Glaxosmithkline et Laboratoires Glaxosmithkline v Jean-Pierre Rouard

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/45

         Reference for a preliminary ruling from the Cour de cassation (France) lodged on 20 November 2006 — Glaxosmithkline et Laboratoires Glaxosmithkline v Jean-Pierre Rouard
   (Case C-462/06)
   (2006/C 326/92)
   Language of the case: French
   Referring court
   Cour de cassation
   Parties to the main proceedings

      Appellants: Glaxosmithkline et Laboratoires Glaxosmithkline

      Respondent: Jean-Pierre Rouard
   Question referred
   Does the rule of special jurisdiction stated in Article 6(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (1), by virtue of which a person domiciled in a Member State may be sued ‘where he is one of a number of defendants, in the courts for the place where any of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings’, apply to proceedings brought by an employee before a court of a Member State against two companies belonging to the same group, one of which, being the one which engaged that employee for the group and refused to re-employ him, is domiciled in that Member State and the other, for which the employee last worked in non-Member States and which dismissed him, in another Member State, when that applicant relies on a clause in the employment contract to claim that the two defendants were his co-employers from whom he claims compensation for his dismissal or does the rule in Article 18(1) of the regulation, by virtue of which, in matters relating to individual contracts of employment, jurisdiction is to be determined by Section 5 of Chapter II, exclude the application of Article 6(1), so that each of the two companies must be sued before the courts of the Member State where it is domiciled?

      (1)   OJ 2001 L 12, p. 1.


title: Case T-653/16: Action brought on 19 September 2016 — Malta v Commission

text:
               21.11.2016

               EN

               Official Journal of the European Union

               C 428/18

         Action brought on 19 September 2016 — Malta v Commission
   (Case T-653/16)
   (2016/C 428/20)
   Language of the case: English

      Parties

      Applicant: Republic of Malta (represented by: A. Buhagiar, agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s decision dated 13 July 2016, delivered pursuant to Regulation (EC) No 1049/2001, (1) relating to a request for access to documents registered under the reference GESTDEM 2015/5711;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging a failure to abide by the procedural time-limits stipulated in Regulation No 1049/2001;

               2.

               Second plea in law, alleging the wrongful treatment of a request for access to documents as a fresh application;

               3.

               Third plea in law, alleging the unlawful extension of the scope of the application for access to documents at the confirmatory stage;

               4.

               Fourth plea in law, alleging the inclusion by the defendant in the contested decision of documents for release to a third party whose disclosure would breach Article 113 of Regulation No 1224/2009. (2)

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

      (2)  Council Regulation No 1224/2009 of 20 November 2009 establishing a Community control system for ensuring compliance with the rules of the common fisheries policy, amending Regulations (EC) No 847/96, (EC) No 2371/2002, (EC) No 811/2004, (EC) No 768/2005, (EC) No 2115/2005, (EC) No 2166/2005, (EC) No 388/2006, (EC) No 509/2007, (EC) No 676/2007, (EC) No 1098/2007, (EC) No 1300/2008, (EC) No 1342/2008 and repealing Regulations (EEC) No 2847/93, (EC) No 1627/94 and (EC) No 1966/2006, OJ 2009 L 343, p. 1.


title: Case C-426/01: Reference for a preliminary ruling by the Tribunal d'Instance, Vienne, by judgment of that court of 19 October 2001 in the case of SA Société ACCEA Finances v Christian Giner

text:
C 3/18                EN                    Official Journal of the European Communities                                         5.1.2002
Question 1                                                             Must Directive 87/102/EEC (1) and Directive 90180/EEC (2) be
                                                                       interpreted as having as their sole purpose consumer protec-
When balancing interests prior to deciding an application for          tion or, as aiming, beyond that, at the organization and
interim measures, as required by Article 2(4) of Council               regulation of the single market in credit?
Directive 89/665/EEC of 21 December 1989 (1) on the coordi-
nation of the laws, regulations and administrative provisions
relating to the application of review procedures to the award          Must the obligation to interpret those directives in conformity
of public supply and public works contracts, as amended by             with their purpose, and at least in way protective of consumers,
Directive 92/50/EEC of 18 June 1992(2), is the ‘body respon-           prompt the national court to prefer an interpretation of its law
sible for review procedures’ within the meaning of Article 2(8)        that would allow it to raise, of its own motion, issues of
of Directive 89/665/EEC required to take into account the              irregularity affecting consumer credit agreements, such as a
prospects of success of an application for an unlawful decision        failure to indicate in writing the percentage rate of charge, in
of a contracting authority to be set aside pursuant to                 actions for payment of a debt brought before it by credit
Article 2(1)(b) of that Directive?                                     institutions?
Question 2
                                                                       (1) Council Directive 87/102/EEC of 22 December 1986 for the
                                                                           approximation of the laws, regulations and administrative pro-
When balancing interests prior to deciding an application for              visions of the Member States concerning consumer credit (OJ
interim measures, as required by Article 2(4) of Council                   L 42 of 12.2.1987, p. 48).
Directive 89/665/EEC of 21 December 1989 on the coordi-                (2) Council Directive 90/88/EEC of 22 February 1990 amending
nation of the laws, regulations and administrative provisions              Directive 87/102/EEC for the approximation of the laws, regu-
relating to the application of review procedures to the award              lations and administrative provisions of the Member States
of public supply and public works contracts, as amended by                 concerning consumer credit (OJ L 61, 10.3.1990, p. 14).
Directive 92/50/EEC of 18 June 1992, is the ‘body responsible
for review procedures’ within the meaning of Article 2(8) of
Directive 89/665/EEC entitled to take into account the pros-
pects of success of an application for an unlawful decision of
a contracting authority to be set aside pursuant to
Article 2(1)(b) of that Directive?
(1) OJ 1989 L 395, p. 33.                                              Reference for a preliminary ruling by the Bundessozial-
(2) OJ 1992 L 209, p. 1.                                               gericht by order of that court of 2 August 2001 in the
                                                                       case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti v
                                                                                Bundesanstalt für Arbeit
                                                                                (Case C-427/01)
                                                                                (2002/C 3/28)
Reference for a preliminary ruling by the Tribunal d’In-
stance, Vienne, by judgment of that court of 19 October
2001 in the case of SA Société ACCEA Finances v                        Reference has been made to the Court of Justice of the
                         Christian Giner                               European Communities by order of the Bundessozialgericht
                                                                       (Federal Social Court) of 2 August 2001, received at the Court
                                                                       Registry on 30 October 2001, for a preliminary ruling in the
                         (Case C-426/01)
                                                                       case of Dülger Trans Uluslararasi Tazimacilik Ltd. Sti. v
                                                                       Bundesanstalt für Arbeit (Federal Labour Office) on the follow-
                          (2002/C 3/27)                                ing questions:
                                                                       1.     Is Article 41(1) of the Additional Protocol of 23 Novem-
                                                                              ber 1970 to the Agreement establishing an Association
                                                                              between the European Economic Community and Turkey
Reference has been made to the Court of Justice of the                        to be interpreted as meaning that there is also a restriction
European Communities by judgment of the Tribunal d’Instance                   on the freedom to provide services where a Member State
(District Court), Vienne, of 19 October 2001, received at the                 of the Community abolishes an existing work permit
Court Registry on 29 October 2001 for a preliminary ruling                    exemption for Turkish drivers engaged in international
in the case of SA Société ACCEA Finances v Christian Giner                    haulage who are employed by a (Turkish) employer with
on the following questions:                                                   its seat in Turkey?


title: Case C-483/15: Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 September 2015 — Autorità Garante della Concorrenza e del Mercato v Albini & Pitigliani SpA

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/22

         Request for a preliminary ruling from the Consiglio di Stato (Italy) lodged on 11 September 2015 — Autorità Garante della Concorrenza e del Mercato v Albini & Pitigliani SpA
   (Case C-483/15)
   (2015/C 381/24)
   Language of the case: Italian

      Referring court

   Consiglio di Stato

      Parties to the main proceedings

      Applicant: Autorità Garante della Concorrenza e del Mercato

      Defendant: Albini & Pitigliani SpA

      Question referred

   Does the principle of proportionality, which must guide the process of quantifying fines — as affirmed by Article 49 of the Charter of Fundamental Rights of the European Union — preclude an interpretation of Article 23(2)(a) of Regulation No 1/2003 (1), in the version consolidated by the European Commission through the Guidelines on the method of setting fines (2006/C 201/02), and practice, including national practice, according to which the fine to be applied to undertakings which have breached the prohibition of anti-competitive agreements is to be calculated by applying the circumstances to the basic amount resulting from the calculation of the various factors which have to be taken into account under EU law, and in any event before the reduction to 10 % of turnover, with the risk that the application of the extenuating circumstances to the basic amount may prove entirely unsuitable for having the effect of personalising the fine, the circumstances of which, by contrast, are predetermined by the adjustment of the relevant amount according to the characteristics of the specific case?

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p. 1).


               22.11.2012

               EN

               Official Journal of the European Union

               C 360/6

         Action brought on 19 June 2012 by the EFTA Surveillance Authority against the Kingdom of Norway
   (Case E-6/12)
   2012/C 360/05
   An action against the Kingdom of Norway was brought before the EFTA Court on 19 June 2012 by the EFTA Surveillance Authority, represented by Xavier Lewis and Fiona M. Cloarec, acting as Agents of the EFTA Surveillance Authority, 35 Rue Belliard, 1040 Brussels, Belgium.
   The EFTA Surveillance Authority requests the EFTA Court to declare that:

               1.

               by maintaining in force the administrative practice of not assessing whether a child, living together with another parent outside Norway, is mainly dependent on the parent who is living in Norway and separated from the other parent, the Kingdom of Norway is in breach of Article 1(f)(i), second sentence, in conjunction with Article 76 of the Act referred to at point 1 of Annex VI to the Agreement on the European Economic Area (Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended), as adapted to the EEA Agreement by Protocol 1 thereto;

               2.

               the Kingdom of Norway bears the costs of the proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               Chapter 7 of Regulation (EEC) No 1408/71 regulates the coordination of the grant of family benefits in cross-border cases.

               —

               Article 1(f)(i) of Regulation (EEC) No 1408/71 defines the term ‘member of the family’ as ‘any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided (…); where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person or student, this condition shall be considered satisfied if the person in question is mainly dependant on that person. (…)’.

               —

               The EFTA Surveillance Authority submits that under Article 4(1)(h) of Regulation (EEC) No 1408/71, family benefits are benefits intended to enable one of the parents to devote himself or herself to the raising of a young child and designed to remunerate the service of bringing up a child, to meet other costs of caring for and raising a child and, as the case may be, to mitigate the financial disadvantages entailed in giving up income from an occupational activity.

               —

               The EFTA Surveillance Authority claims that the purpose of Articles 73 and 74 of Regulation (EEC) No 1408/71 is to guarantee the family members of workers, residing in another EEA State, the grant of family benefits provided for by the applicable legislation of the State to which the worker is affiliated.

               —

               The EFTA Surveillance Authority submits that the administrative practice, according to which, in cross-border cases, the Norwegian authorities (namely the Norwegian Labour and Welfare Service, NAV) assesses whether the parent working in Norway has his regular abode with his family in the other EEA State during the periods when he is not working in Norway, and without assessing whether the child is ‘mainly dependant on’ the parent working in Norway — is in breach of Article 1(f)(i), second sentence, in conjunction with Article 76 of Regulation (EEC) No 1408/71.


title: Case F-89/07: Action brought on 6 September 2007 — Kuchta v European Central Bank

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/71

         Action brought on 6 September 2007 — Kuchta v European Central Bank
   (Case F-89/07)
   (2007/C 269/130)
   Language of the case: German
   Parties

      Applicant: Jan Kuchta (Frankfurt am Main, Germany) (represented by: B. Karthaus, lawyer)

      Defendant: European Central Bank
   Form of order sought

               —

               order the defendant to pay the applicant damages in the sum of EUR 1;

               —

               declare that the decision addressed to the applicant concerning the annual salary and bonus review (ASBR) for 2006 of 31 December 2006 is invalid;

               —

               order the defendant to pay the applicant's out-of-court costs.

         Pleas in law and main arguments
   The action concerns an infringement of provisions of data protection law inasmuch as the applicant's staff report for 2006 was forwarded in full to his new superior without his knowledge.
   In addition, the applicant complains of a breach of the principle of equal treatment regarding the annual salary and bonus review (ASBR) procedure and failure to consult the defendant's staff representatives in accordance with the rules when conducting the applicant's ASBR in 2006.


title: Judgment of the Court of Justice (Fourth Chamber) of 16 December 2004 in Case C-358/03 Commission of the European Communities v Republic of Austria (Failure to fulfil obligations — Workers' protection — Health and safety of workers — Manual handling of loads where there is a risk of injury to workers)

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/4

      JUDGMENT OF THE COURT OF JUSTICE

   (Fourth Chamber)
   of 16 December 2004
   in Case C-358/03 Commission of the European Communities v Republic of Austria (1)

   (Failure to fulfil obligations - Workers' protection - Health and safety of workers - Manual handling of loads where there is a risk of injury to workers)
   (2005/C 82/08)
   Language of the Case: German
   In Case C-358/03, concerning an action for failure to fulfil obligations under Article 226 EC, brought on 19 August 2003 by the Commission of the European Communities (Agents: D. Martin and H. Kreppel) against the Republic of Austria (Agent: E. Riedl), the Court of Justice (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, N. Colneric (Rapporteur), and J.N. Cunha Rodrigues, Judges; Advocate General, A. Tizzano; Registrar, R. Grass, gave a judgment on 16 December 2004, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply, in the Land of Carinthia, with Council Directive 90/269/EEC of 29 May 1990 on the minimum health and safety requirements for the manual handling of loads where there is a risk particularly of back injury to workers (fourth individual Directive within the meaning of Article 16(1) of Directive 89/391/EEC), the Republic of Austria has failed to fulfil its obligations under that Directive;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Commission of the European Communities and the Republic of Austria to bear their own costs.

      (1)  OJ C 264 of 01.11.2003