title: Case C-545/08: Action brought on 4 December 2008 — Commission of the European Communities v Republic of Poland

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/10

         Action brought on 4 December 2008 — Commission of the European Communities v Republic of Poland
   (Case C-545/08)
   (2009/C 82/18)
   Language of the case: Polish
   Parties

      Applicant: Commission of the European Communities (represented by A. Nijenhuis and K. Mojzesowicz, acting as Agents)

      Defendant: Republic of Poland
   Form of order sought

               —

               declare that, by regulating retail tariffs for broadband access services without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations under Articles 16 and 17 of Directive 2002/22/EC (1) in conjunction with Articles 16 and 27 of Directive 2002/21/EC (2);

               —

               order the Republic of Poland to pay the costs.

         Pleas in law and main arguments
   By regulating retail tariffs for broadband access services without carrying out a prior market analysis, the Republic of Poland has failed to fulfil its obligations under Articles 16 and 17 of Directive 2002/22/EC in conjunction with Articles 16 and 27 of Directive 2002/21/EC.
   First, the obligations imposed on Telekomunikacja Polska by the President of the Urząd Komunikacji Elektronicznej, namely the requirement of submission by the undertaking of retail tariffs for broadband access services for approval by the national regulatory authority and the requirement that the tariffs are determined on the basis of the costs of providing the services, two years after the entry into force in Poland of the binding Community provisions, constitute new obligations and not the maintenance in force of existing obligations.
   Second, the regulatory obligations concerning retail broadband access services imposed on Telekomunikacja Polska by the President of the Urząd Komunikacji Elektronicznej cannot, according to the Commission, be regarded as transitional measures within the meaning of Article 27 of the Framework Directive, since Article 17 of Directive 98/10/EC, mentioned in Article 27, concerns only tariffs for the use of the fixed public telephone network and fixed public telephone services.

      (1)  Directive 2002/22/EC of the European Parliament and of the Council of 7 March 2002 on universal service and users' rights relating to electronic communications networks and services (Universal Service Directive), OJ 2002 L 108, p. 51.

      (2)  Directive 2002/21/EC of the European Parliament and of the Council of 7 March 2002 on a common regulatory framework for electronic communications networks and services (Framework Directive), OJ 2002 L 108, p. 33.


title: Case F-111/15: Judgment of the Civil Service Tribunal (Third Chamber) of 25 May 2016 — GW v Commission (Civil service — Officials — Social security — Reimbursement of medical expenses — Concrete and detailed examination)

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/49

         Judgment of the Civil Service Tribunal (Third Chamber) of 25 May 2016 — GW v Commission
   (Case F-111/15) (1)

   ((Civil service - Officials - Social security - Reimbursement of medical expenses - Concrete and detailed examination))
   (2016/C 251/55)
   Language of the case: French

      Parties

      Applicant: GW (represented by: N. de Montigny and J.-N. Louis, lawyers)

      Defendant: European Commission (represented by: T. S. Bohr and F. Simonetti, acting as Agents)

      Re:

   Application for annulment of the Commission’s decision to refuse the applicant and his spouse reimbursement of the costs concerning three invoices for medical treatment and treatment relating to the cancer from which she is suffering.

      Operative part of the judgment

   The Tribunal:

               1)

               Annuls the European Commission’s decision refusing to consider the costs in itemised accounts Nos 67 and 68 of 7 February 2014 and No 72 of 12 March 2014 relating to Mrs T’s healthcare to be reimbursable;

               2)

               Orders the European Commission to bear its own costs and to pay the costs incurred by GW.

      (1)  OJ C 354 of 26/10/2015, p. 55.


title: Case T-422/03: Order of the General Court of 18 December 2009 — Enviro Tech Europe and Enviro Tech International v Commission

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/48

         Order of the General Court of 18 December 2009 — Enviro Tech Europe and Enviro Tech International v Commission
   (Case T-422/03) (1)

   2010/C 37/69

      Language of the case: English

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

      (1)  OJ C 47, 21.2.2004.


title: Case T-21/09: Action brought on 16 January 2009 — Eurotel SpA v OHIM

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/48

         Action brought on 16 January 2009 — Eurotel SpA v OHIM
   (Case T-21/09)
   (2009/C 69/106)
   Language in which the application was lodged: Italian
   Parties

      Applicant: Eurotel SpA (Milan, Italy) (represented by: F. Paola, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: DVB Project
   Form of order sought

               —

               Annul the decision of the Board of Appeal and, consequently, declare invalid the figurative Community mark ‘DVB’, which is manifestly contrary to the spirit and wording of Article 7(1)(b), (c) and (d) of the Regulation on the Community trade mark;

               —

               Order OHIM to pay the costs.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: figurative mark ‘DVB’ (registration application No 2.75.771), for goods and services in Classes 9 and 38.

      Proprietor of the Community trade mark: DVB Project.

      Applicant for the declaration of invalidity: the applicant.

      Trade mark right of applicant for the declaration: the party seeking a declaration of invalidity is not claiming any trade mark right, but argues that the mark in question is descriptive and generic.

      Decision of the Cancellation Division: application for declaration of invalidity dismissed.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: Infringement of Article 7(1)(b), (c) and (d) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark.


title: Case C-298/11: Order of the President of the Court of 9 July 2012 (reference for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite

text:
               6.10.2012

               EN

               Official Journal of the European Union

               C 303/21

         Order of the President of the Court of 9 July 2012 (reference for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Dobrudzhanska petrolna kompania AD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — gr. Varna, pri Tsentralno upravlenie na Natsionalnata Agentsia po Prihodite
   (Case C-298/11) (1)

   2012/C 303/36
   Language of the case: Bulgarian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 232, 6.8.2011.


title: Case T-521/09: Action brought on 21 December 2009 — Areva T&D v Commission

text:
               27.2.2010

               EN

               Official Journal of the European Union

               C 51/42

         Action brought on 21 December 2009 — Areva T&D v Commission
   (Case T-521/09)
   2010/C 51/78
   Language of the case: French

      Parties

      Applicant: Areva T&D SAS (Paris, France) (represented by: A. Schild and C. Simphal, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision in so far as it concerns Areva T&D SA; and

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The purpose of this action, brought by Areva T&D SAS, is the annulment of European Commission Decision C(2009) 7601 final of 7 October 2009 relating to a proceeding under Article 81 EC (now Article 101 TFEU) and Article 53 EEA — Case COMP/39.129 — Power Transformers.
   The applicant raises four pleas in law in support of its action for annulment.
   The first plea in law concerns the infringement of the obligation to provide reasons laid down in Article 296 TFEU. The applicant takes the view that the Commission has not stated reasons for the delegation of its power to impose sanctions following the imposition of sanctions jointly on Areva T&D SA and the addition of a supplementary condition to the conditions laid down by the Notice of 19 February 2002 for entitlement to immunity from fines.
   By its second plea in law, the applicant alleges that the Commission infringed Article 101(1) TFEU and, specifically, the legal rules on imputability for competition law infringements. According to the applicant, the Commission could not hold Areva T&D SA liable for anti-competitive practices prior to the transfer by Alstom of Alstom T&D SA. At the time of the facts, Alstom T&D SA was not in fact an independent company, but a company controlled by its parent company, Alstom. Consequently, the Commission should have held, in accordance with the principles relating to imputability for infringements in the event of the transfer of a company, that at the time of the facts at issue, only the parent company, in the present case Alstom, could be held liable for the anti-competitive practices prior to the transfer. The applicant is also of the opinion that, by upholding the liability of Areva T&D SA, the Commission infringed the general legal principles of legal certainty and that penalties are personal and must fit the offence.
   By its third plea in law, the applicant submits that the Commission infringed Article 101(1) TFEU and specifically the legal rules applicable to joint and several liability. The applicant maintains that the Commission could not hold Areva T&D SA and Alstom jointly liable for payment of the fine in so far as they no longer, at the date of the decision, formed an economic unit. Lastly, the applicant considers that, by finding Alstom and Areva T&D SA jointly liable, the Commission’s decision infringes two general principles of Union law, namely the principle of equal treatment and the principle of legal certainty.
   By its fourth plea in law, the applicant criticises the Commission for having infringed Article 101(1) TFEU and, specifically, the rules set out in the Commission Notice of 19 February 2002 on immunity from fines and reduction of fines. (1) The applicant also claims that, by refusing Areva T&D SA entitlement to immunity, the Comission infringed the general legal principles of the protection of legitimate expectations and legal certainty.

      (1)  OJ 2002 C 45, p. 3


title: Case T-395/10: Order of the General Court of 12 April 2011 — Stichting Corporate Europe Observatory v Commission (Access to documents — Regulation (EC) No 1049/2001 — Implied refusal of access — Express decision adopted after the action was brought — No need to adjudicate)

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/10

         Order of the General Court of 12 April 2011 — Stichting Corporate Europe Observatory v Commission
   (Case T-395/10) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Implied refusal of access - Express decision adopted after the action was brought - No need to adjudicate)
   2011/C 173/22
   Language of the case: English

      Parties

      Appellant: Stichting Corporate Europe Observatory (Amsterdam, Netherlands) (represented by: S. Crosby, Solicitor, and S. Santoro, lawyer)

      Other party to the proceedings: European Commission (represented by: F. Clotuche-Duvieusart and C. ten Dam, Agents)

      Re:

   Application for annulment of the Commission’s implied decision refusing to grant the applicant access to certain documents concerning the relations between the European Union and India.

      Operative part of the order

               1.

               There is no need to adjudicate on the action.

               2.

               The European Commission shall pay the costs.

      (1)  OJ C 301, 6.11.2010.


title: Case C-164/05: Action brought on 8 April 2005 by the Commission of the European Communities against the French Republic

text:
               14.5.2005

               EN

               Official Journal of the European Union

               C 115/18

         Action brought on 8 April 2005 by the Commission of the European Communities against the French Republic
   (Case C-164/05)
   (2005/C 115/33)
   Language of the case: French
   An action against the French Republic was brought before the Court of Justice of the European Communities on 8 April 2005 by the Commission of the European Communities, represented by D. Maidani and H. Støvlbæk, acting as Agents, with an address for service in Luxembourg.
   The Commission of the European Communities claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001 amending Council Directives 89/48/EEC and 92/51/EEC on the general system for the recognition of professional qualifications and Council Directives 77/452/EEC, 77/453/EEC, 78/686/EEC, 78/687/EEC, 78/1026/EEC, 78/1027/EEC, 80/154/EEC, 80/155/EEC, 85/384/EEC, 85/432/EEC, 85/433/EEC and 93/16/EEC concerning the professions of nurse responsible for general care, dental practitioner, veterinary surgeon, midwife, architect, pharmacist and doctor (1) and, in any event, by failing to communicate them to the Commission, the French Republic has failed to fulfil its obligations under that directive;

               2.

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   The period for transposition of the Directive into national law expired on 1 January 2003.

      (1)  OJ L 206, 31.07.2001, p. 1.


title: Case C-631/13: Request for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 2 December 2013 — Arne Forsgren

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/4

         Request for a preliminary ruling from the Oberster Patent- und Markensenat (Austria) lodged on 2 December 2013 — Arne Forsgren
   (Case C-631/13)
   2014/C 61/06
   Language of the case: German

      Referring court

   Oberster Patent- und Markensenat

      Parties to the main proceedings

      Applicant: Arne Forsgren

      Defendant: Österreichisches Patentamt

      Questions referred

               1.

               Under Article 1(b) and Article 3(a) and (b) of Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, (1) provided that the other conditions are met, may a protection certificate be granted for an active ingredient protected by a basic patent (in this case, Protein D) where that active ingredient is contained in the medicinal product (in this case, Synflorix) as part of a covalent (molecular) bond with other active ingredients but none the less retains its own effect?

               2.

               If Question 1 is answered in the affirmative:

                           2.1

                           Under Article 3(a) and (b) of Regulation (EC) No 469/2009, may a protection certificate be granted for the substance protected by the basic patent (in this case, Protein D) where that substance has a therapeutic effect of its own (in this case, as a vaccine against Haemophilus influenzae bacteria) but the authorisation of the medicinal product does not relate to that effect?

                           2.2

                           Under Article 3(a) and (b) of Regulation (EC) No 469/2009, may a protection certificate be granted for the substance protected by the basic patent (in this case, Protein D) where the authorisation describes that substance as a ‘carrier’ for the actual active ingredients (in this case, Pneumococcal polysaccharides), the carrier, as an adjuvant, enhances the effect of those substances, but that effect is not expressly mentioned in the authorisation of the medicinal product?

      (1)  OJ 2009 L 152, p. 1.


title: Case T-61/15: Action brought on 6 February 2015 — 1&1 Internet v OHIM — Unoe Bank (1e1)

text:
               30.3.2015

               EN

               Official Journal of the European Union

               C 107/36

      Action brought on 6 February 2015 — 1&1 Internet v OHIM — Unoe Bank (1e1)
      (Case T-61/15)
      (2015/C 107/47)
      Language in which the application was lodged: German

         Parties

         Applicant: 1&1 Internet AG (Montabaur, Germany) (represented by: G. Klopp, lawyer)

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

         Other party to the proceedings before the Board of Appeal: Unoe Bank, SA (Madrid, Spain)

         Details of the proceedings before OHIM

         Applicant for the trade mark at issue: Applicant

         Trade mark at issue: Community word mark ‘1e1’ — Application No 11 047 479

         Procedure before OHIM: Opposition proceedings

         Contested decision: Decision of the Fifth Board of Appeal of OHIM of 4 December 2014 in Case R 101/2014-5

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the contested decision relating to opposition proceedings No B 002090507 between 1&1 Internet AG and UNO E Bank;

                  —

                  order OHIM to pay the costs.

         Plea in law

                  —

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


title: ORDER OF THE COURT (Second Chamber) of 17 October 1995 in Case C-62/94 P: Mariette Turner v. Commission of the European Communities (Official - Compulsory reassignment - Non-material damage - Claim for compensation - Appeal manifestly inadmissible and unfounded)

text:
25 . 11 . 95           EN                   Official Journal of the European Communities                                     No C 315/9
     of the judgment by persons who have not brought legal             Action brought on 29 September 1995 by the Commission
     proceedings or made an equivalent claim prior to that             of the European Communities against the Council of the
     date.                                                                                European Union
                                                                                ( Case C-309/95 )
(') OJ No C 202 , 23 . 7. 1994 .                                                                ( 95/C 315/ 17 )
                                                                       An action against the Council of the European Union was
                                                                       brought before the Court of Justice of the European
                                                                       Communities on 29 September 1 995 by the Commission of
                                                                       the European Communities, represented by Gerard Rozet
                                                                       and Jean-Paul Keppenne, acting as Agents, with an address
                                                                       for service in Luxembourg at the office of Carlos Gomez de
                  ORDER OF THE COURT
                                                                       la Cruz, Wagner Centre, Kirchberg.
                       ( Second Chamber)
                                                                       The applicant claims that the Court should :
                      of 17 October 1995                               — annul the Council 's decision of 22 June 1995 on the
in Case C-62/94 P: Mariette Turner v. Commission of the                    granting of exceptional aid to producers of table wine in
                  European Communities ( 1 )                               France ,
(Official — Compulsory reassignment — Non-material
damage — Claim for compensation — Appeal manifestly                    — order the Council to pay the coses .
                 inadmissible and unfounded)
                           ( 95/C 315/ 16 )                            Pleas in law and main arguments adduced in support:
                                                                       — Misapplication of the third subparagraph of Article
                (Language of the case: French)                             93 ( 2 ) of the EC Treaty; abuse of process; lack of
                                                                           competence .
(Provisional translation; the definitive translation will be               The Council is not empowered to take decisions — on
          published in the European Court Reports)                         the basis of the third subparagraph of Article 93 ( 2 )
                                                                           which was extended to certain agriculturl products by a
                                                                           Regulation on the common organization of the relevant
In Case C-62/94 P : Mariette Turner, a former official of the              markets — derogating from provisions which are of
Commission of the European Communities, residing in                        central importance to the machinery for the common
Brussels , represented by Georges Vandersanden, of the                     organization of the market ( COM ), where the effect of
Brussels Bar, with an address for service in Luxembourg at                 those decisions is to impair the proper operation of the
the office of Fiduciaire Myson, 1 Rue Glesener — appeal                    principal mechanisms of the COM . State aid which
against the judgment of the Court of First Instance of the                 causes the purchase price of table wines delivered for
European Communities ( Fifth Chamber ) of 16 December                      preventive distillation to rise to the level of market prices
 1993 in Case T-80/92 Turner v. Commission ( 1993 ) ECR                    not only distorts competition between producers within
11-1465 , seeking to have that judgment set aside, the other               the meaning of Article 92 ( 1 ), but it lends greater support
party to the proceedings being Commission of the European                  to prices than that expressly envisaged by the COM and
Communities ( Agents: Gianluigi Valsesia and Denis                         counters the dissuasive effect expressly mentioned in the
Waelbroeck ) — the Court, composed of: G. Hirsch                           preamble to the basic Regulation, which is necessary to
 ( Rapporteur ), President of the Chamber, G. F. Mancini and               enable production to be controlled, and at the same time
F. A. Schockweiler, Judges; G. Cosmas, Advocate-General;                   makes the Commission 's management task impossible
R. Grass , Registrar, made an order on 17 October 1995 , the               to carry out .
 operative part of which is as follows:
                                                                           If the Council wished to change the common
                                                                           organization of the market in wine in order to obtain the
 1 . The appeal is dismissed.                                              result sought, it should have followed the procedural
                                                                           rules laid down by Article 43 ( 2 ) and ( 3 ) of the EC Treaty
                                                                           which ensure compliance with the institutional balance
 2 . Mrs Turner is ordered to pay the costs of these                       established by the Treaty . Consequently, the contested
     proceedings.                                                          decision is vitiated by lack of competence .
 (') OJ No C 103 , 11 . 4 . 1994 .                                          ( By way of subsidiary pleas )
                                                                        — Absence of 'exceptional circumstances' within the
                                                                            meaning of the third subparagraph of Article 93 ( 2 ) of


C 135/32              EN                    Official Journal of the European Communities                                 13.5.2000
— order the Commission to re-examine the position of the               — Misuse of powers;
    applicant;
                                                                       — Insufficient and contradictory reasoning in the contested
                                                                           decision.
— order the Commission to pay the costs.
Pleas in law and main arguments
                                                                              Removal from the register of Case T-116/99 (1)
The contested decision was taken on the supposition that the
applicant had carried on a large number of external activities                                (2000/C 135/56)
without prior authorisation. The Commission maintains that
those activities had become the applicant’s main occupation,
to the detriment of his work as a Community official.                                    (Language of the case: Finnish)
                                                                       By order of 18 February 2000 the President of the Court of
In support of his claims, the applicant argues:                        First Instance of the European Communities has ordered the
                                                                       removal from the register of Case T-116/99: Ilmailulaitos v
— Infringement and misapplication of Articles 86 and 87 of             Commission of the European Communities.
    the Staff Regulations of Officials, and also of the principle
    of proportionality;                                                (1) OJ C 226 of 7.8.1999.


title: Judgment of the Court of First Instance of 20 March 2001 in Case T-30/99 Bocchi Food Trade International GmbH v Commission of the European Communities (Bananas — Imports from ACP States and third countries — Calculation of annual quantity allocated — Action for damages — Admissibility — Possibility of relying on WTO rules Misuse of powers — General principles of Community law)

text:
2.6.2001               EN                      Official Journal of the European Communities                                     C 161/15
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                   JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 7 February 2001                                                         of 20 March 2001
in Case T-186/98: Compañı́a Internacional de Pesca y                     in Case T-30/99 Bocchi Food Trade International GmbH
Derivados, SA (Inpesca) v Commission of the European                            v Commission of the European Communities (1)
                         Communities (1)
                                                                          (Bananas — Imports from ACP States and third countries
(Fisheries — Community financial aid for the construction                 — Calculation of annual quantity allocated — Action for
of fishing vessels — Regulation (EEC) No 4028/86 —                        damages — Admissibility — Possibility of relying on WTO
Request for reconsideration — Substantial new facts —                     rules Misuse of powers — General principles of Community
     Action for annulment and damages — Inadmissible)                                                    law)
                         (2001/C 161/32)                                                           (2001/C 161/33)
                  (Language of the case: Spanish)                                           (Language of the case: German)
In Case T-186/98: Compañı́a Internacional de Pesca y Deriva-             In Case T-30/99 Bocchi Foad Trade International GmbH,
dos, SA (Inpesca), established in Bermeo (Spain), represented             established in Bergisch Gladbach (Germany), represented by
by M.I. Angulo Fuertes and M.B. Angulo Fuertes, abogadas,                 G. Meier, avocat, against Commission of the European Com-
with an address for service in Luxembourg, against Com-                   munities (Agents: K.-D. Borchardt and H. van Vliet) —
mission of the European Communities (Agents: L. Visaggio                  application for compensation for the loss which the applicant
and J. Guerra Fernández) — application for, first, annulment             has allegedly suffered as a result of the Commission introdu-
of the decision allegedly contained in a letter from the                  cing, under Regulation (EC) No 2362/98 of 28 October 1998
Commission dated 16 September 1998 and, second, an order                  laying down detailed rules for the implementation of Council
that the Commission make good the harm allegedly sustained                Regulation (EEC) No 404/93 regarding imports of bananas
by the applicant — the Court of First Instance (Second                    into the Community (OJ L 293, 1998, p. 32.), provisions
Chamber), composed of: J. Pirrung, President, A. Potocki and              which are alleged to conflict with World Trade Organisation
A.W.H. Meij, Judges; H. Jung, Registrar, has given a judgment             (WTO) rules and certain general principles of Community law
on 7 February 2001, in which it:                                          — the Court of First Instance (Fifth Chamber), composed of
                                                                          P. Lindh, President, R. Garcia-Valdecasas and J.D. Cooke,
                                                                          Judges; J. Palacio Gonzalez, Administrator, for the Registrar,
1.    Declares the ‘further observations’ filed by the applicant on       has given a judgment on 20 March 2001, in which it:
      21 July 1999 inadmissible;
                                                                          1.    Dismisses the action;
2.    Dismisses the application;
                                                                          2.    Orders the applicant to pay its own costs and those of the
3.    Orders the applicant to pay the costs.                                    Commission.
(1) OJ C 20 of 23.1.99.                                                   (1) OJ C 86 of 27.3.99.


title: Case T-47/15: Action brought on 2 February 2015 — Germany v Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/31

         Action brought on 2 February 2015 — Germany v Commission
   (Case T-47/15)
   (2015/C 127/43)
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: T. Henze, K. Petersen and T. Lübbig, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul, in accordance with Article 264 TFEU, the Commission Decision of 25 November 2014 in the procedure State aid SA.33995 (2013) (ex 2013/NN) — Germany — Support for renewable electricity and reduced EEG-surcharge for energy-intensive users, C(2014) 8786 final;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: Manifest errors of assessment in the evaluation of the facts
               The European Commission misunderstood the underlying facts, namely the functioning of the Law for the priority of renewable energy sources, in particular the financial flows system under that law. In addition, the Commission misunderstood the role ‘of the State’ as legislator and as body with responsibility for supervisory authorities and incorrectly deduced a situation of control therefrom.

               2.

               Second plea in law: No ‘favouring’ through the special compensation scheme
               The European Commission erred in law in applying Article 107(1) TFEU by accepting, contrary to the case-law of the Court of Justice, that energy-intensive users had been favoured.

               3.

               Third plea in law: No granting of the alleged favouring by the State or through State resources
               The European Commission also erred in law in applying Article 107(1) TFEU in this respect when it accepted that public authorities had control over the assets of the various private companies participating in the regime of the Law on the priority of renewable energy sources.


title: Case T-215/09: Action brought on 3 June 2009 — Freistaat Sachsen v Commission

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/58

         Action brought on 3 June 2009 — Freistaat Sachsen v Commission
   (Case T-215/09)
   2009/C 180/107
   Language of the case: German

      Parties

      Applicant: Freistaat Sachsen (represented by: U. Soltész und P. Melcher, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul Commission Decision C (2009) 2010 final of 24 March 2009 (NN 4/2009 (ex N 361/2008) — Germany, Dresden Airport) pursuant to the first paragraph of Article 231 EC in so far as the Commission finds that the capital contribution granted by Germany for the reconstruction and extension of the runway at Dresden airport constitutes State aid for the purposes of Article 87(1) EC; and

               —

               order the Commission to pay the applicant’s costs pursuant to Article 87(2) of the Rules of Procedure of the Court of First Instance of the European Communities.

      Pleas in law and main arguments

   The applicant objects to Commission Decision C (2009) 2010 final of 24 March 2009 (NN 4/2009, ex N 361/2008) — Germany, Dresden Airport, by which the Commission approved Germany’s own proposed capital contribution for the reconstruction and extension of the runway at Dresden airport as being a measure compatible with the common market under Article 87(3)(c) EC. It seeks the annulment of the decision in so far as the Commission categorised the measure at issue as State aid.
   In support of its application the applicant submits, first, that, by applying the rules on State aid to the measure at issue in this case, the Commission acted contrary to the division of powers under the EC Treaty and to the principle that the Community can only act within the powers conferred on it enshrined in Article 5(1) EC. State financing of the construction of infrastructure accessible to all potential users under objective and non-discriminatory conditions is a general measure of economic policy which, as such, does not normally fall within the scope of the rules on State aid.
   Second, the applicant objects to the fact that, in relation to the replacement of the old runway by a new one, Flughafen Dresden GmbH was deemed to be an undertaking within the meaning of Article 87(1) EC.
   Furthermore, it is submitted that the Commission failed to take account of the fact that Flughafen Dresden GmbH is a State-owned single purpose vehicle with an organisational structure governed by private law which, accordingly, cannot be deemed to be a recipient of aid in so far as the State provides it with the resources required in order to perform its functions.
   Fourth, the applicant complains that the 2005 guidelines (1) are contrary to primary Community law, being factually inapplicable and inherently contradictory where regional airport operators do not have the status of an undertaking. They were intended to supplement, not replace, the 1994 guidelines. (2) The 2005 guidelines also made the establishment of airports subject to the rules on aid. According to the applicant, in the previous guidelines of 1994 which continue to apply, this activity was expressly excluded from the application of the rules on State aid.
   In the alternative, the applicant submits a fifth plea to the effect that the measure at issue satisfies all the conditions of the judgment in Altmark Trans
       (3) and ultimately, therefore, does not constitute aid.

      (1)  Communication from the Commission — Community Guidelines on financing of airports and start-up aid to airlines departing from regional airports, OJ 2005 C 312, p. 1.

      (2)  Communication from the Commission — Application of Articles 92 and 93 of the EC Treaty and Article 61 of the EEA Agreement to State aids in the aviation sector, OJ 1994 C 350, p. 5.

      (3)  Case C-280/00 Altmark Trans and Regierungspräsidium Magdeburg [2003] ECR I-7747, paragraph 88 et seq.


title: Case T-187/06: Order of the Court of First Instance of 19 November 2008 — Ralf Schräder v OHIM — (SUMCOL 01) (Community plant variety rights — Plant variety SUMCOL 01 — Rejection of the application for a Community plant variety right — Lack of distinctive character of the candidate variety)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/21

         Order of the Court of First Instance of 19 November 2008 — Ralf Schräder v OHIM — (SUMCOL 01)
   (Case T-187/06) (1)

   (Community plant variety rights - Plant variety SUMCOL 01 - Rejection of the application for a Community plant variety right - Lack of distinctive character of the candidate variety)
   (2009/C 6/43)
   Language of the case: German
   Parties

      Applicant: Ralf Schräder (Lüdinghausen — Germany) (represented by: initially by T. Leidereiter, W.-A. Schmidt and I. Memmler, and later by T. Leidereiter and W.-A. Schmidt, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: B. Kiewiet and M. Ekvad, Agents, assisted by G. Schohe, lawyer)
   Re:
   ACTION against the decision of the Board of Appeal of the CPVO of 2 May 2006 (Case A 003/2004), concerning an application for Community plant variety rights in respect of the plant variety SOMCOL 01
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Ralf Schräder to pay the costs.

      (1)  OJ C 212, 2.9.2006.


title: Case C-212/16: Request for a preliminary ruling from the Vergabekammer Südbayern (Germany) lodged on 15 April 2016 — DUK Versorgungswerk eV, Gothaer Pensionskasse AG v BG Klinik für Berufskrankheiten Bad Reichenhall gGmbH

text:
               11.7.2016

               EN

               Official Journal of the European Union

               C 251/8

         Request for a preliminary ruling from the Vergabekammer Südbayern (Germany) lodged on 15 April 2016 — DUK Versorgungswerk eV, Gothaer Pensionskasse AG v BG Klinik für Berufskrankheiten Bad Reichenhall gGmbH
   (Case C-212/16)
   (2016/C 251/11)
   Language of the case: German

      Referring court

   Vergabekammer Südbayern

      Parties to the main proceedings

      Applicants: DUK Versorgungswerk eV, Gothaer Pensionskasse AG

      Defendant: BG Klinik für Berufskrankheiten Bad Reichenhall gGmbH

      Joined parties: Versorgungsanstalt des Bundes und der Länder, VBG Verwaltungs-Berufsgenossenschaft

      Questions referred

               1.

               Is it compatible with ensuring effective judicial protection in accordance with Article 1(3) and Article 2d(1)(a) of Directive 89/665/EEC, (1) as amended by Directive 2007/66/EC, (2) for a person who asserts the ineffectiveness of a contract concluded without prior publication of a contract notice in the Official Journal of the European Union not to be eligible to use the review procedure, despite risk of harm, on the ground that the contracting authority, which, prior to awarding the contract, did not publish a notice in the Official Journal of the European Union and did not follow a proper award procedure, conclusively specifies, by a statement during the review procedure, the service to be provided in such a way that the economic operator bringing proceedings could not provide it?

               2.

                           (a)

                           Does it constitute a material contractual amendment within the meaning of the case-law of the Court of Justice (judgment of 19 June 2008 in Case C-454/06 Pressetext) if a public undertaking hived off from another public undertaking concludes, in the context of transfer of part of a business within the meaning of Directive 2001/23/EC, (3) with the previous provider of occupational pension services to the hiving-off public undertaking, a new contract for the provision of occupational pensions which, for the purpose of safeguarding the rights of the transferred employees to old-age and invalidity benefits under an occupational pension scheme, is in that respect identical with the original contract and the hived-off public undertaking is controlled by the hiving-off public undertaking as sole proprietor?

                     If Question 2(a) must be answered in the affirmative:

                           (b)

                           Is the use of a negotiated procedure without prior publication of a contract notice pursuant to Article 31(1)(b) of Directive 2004/18/EC with only one economic operator (namely, the previous service provider to the hiving-off public undertaking) permissible if the employees of the hiving-off public undertaking become, by way of transfer of a business, employees of the hived-off contracting authority and, in accordance with their contracts of employment transferred unaltered pursuant to Article 3(1) of Directive 2001/23/EC in conjunction with an established in-house practice, would be entitled as against their new employer, under national employment law, to demand that the occupational pension services be provided by the previous service provider with which the prospective entitlements accrued prior to transfer of the business?

                     If Question (b) must be answered in the negative:

                           (c)

                           May a contracting authority which, prior to awarding a contract, did not publish a contact notice in the Official Journal of the European Union and did not follow an award procedure in accordance with Article 28 of Directive 2004/18/EC, exercise its right to specify performance — without infringing the procurement-law principles of competition, transparency and equal treatment — before following a proper award procedure, to the effect that, in specifying an implementation method for the occupational pension provision, it also specifies how the future service provider is to finance itself? May a contracting authority thus predetermine that only services of an unfunded pension scheme may be offered and that funded pension schemes are thus excluded, even though their obligations towards the insured employees may not differ pursuant to national employment law and by virtue of Article 3(1) of Directive 2001/23/EC?

                     If Question 2(c) must be answered in the affirmative:

                           (d)

                           Does this apply before the expiry of the time-limit for the transposition of Directive 2014/24/EU even if that would have the effect that only one economic operator (namely, the previous service provider) was in a position to provide the service, or is a contracting authority which intends to use a negotiated procedure without publication of a contract notice with only one economic operator, pursuant to Article 31(1)(b) of Directive 2004/18/EC, required, when specifying performance, even before the expiry of the time-limit for the transposition of Directive 2014/24/EU, to ascertain that no reasonable alternative or substitute exists and that the absence of competition is not the result of an artificial narrowing down of the parameters of the procurement, as laid down in the second subparagraph of Article 32(2)(b) of Directive 2014/24/EU?

      (1)  Council Directive 89/665/EEC of 21 December 1989 on the coordination of the laws, regulations and administrative provisions relating to the application of review procedures to the award of public supply and public works contracts (OJ 1989 L 395, p. 33).

      (2)  Directive 2007/66/EC of the European Parliament and of the Council of 11 December 2007 amending Council Directives 89/665/EEC and 92/13/EEC with regard to improving the effectiveness of review procedures concerning the award of public contracts (OJ 2007 L 335, p. 31).

      (3)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ 2001 L 82, p. 16).


title: Joined Cases T-166/07 and T-285/07: Judgment of the General Court of 13 September 2010 — Italy v Commission (Rules on the use of languages — Notice of open competitions for the recruitment of administrators and assistants — Publication in three official languages — Amendments — Publication in all the official languages — Choice of the second language from three languages — Regulation No 1 — Articles 27, 28 and 29(1) of the Staff Regulations — Article 1(1) and (2) of Annex III to the Staff Regulations — Obligation to state reasons — Principle of non-discrimination — Misuse of power)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/24

         Judgment of the General Court of 13 September 2010 — Italy v Commission
   (Joined Cases T-166/07 and T-285/07) (1)

   (Rules on the use of languages - Notice of open competitions for the recruitment of administrators and assistants - Publication in three official languages - Amendments - Publication in all the official languages - Choice of the second language from three languages - Regulation No 1 - Articles 27, 28 and 29(1) of the Staff Regulations - Article 1(1) and (2) of Annex III to the Staff Regulations - Obligation to state reasons - Principle of non-discrimination - Misuse of power)
   2010/C 301/38
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (in Case T-166/07 represented by P. Gentili, avvocato dello Stato, and in Case T-285/07, represented initially by P. Gentili and I. Braguglia, Agent, and subsequently by P. Gentili and R. Adam, Agent, and finally by P. Gentili and I. Bruni, Agent)

      Defendant: European Commission (in Case T-166/07, represented initially by J. Currall, H. Krämer and M. Velardo, Agents, and subsequently by J. Currall and I. Baquero Cruz, Agent, assisted by A. Dal Ferro, lawyer, and in Case T-285/07, represented initially by J. Currall and A. Aresu, Agent, and subsequently by J. Currall and I. Baquero Cruz, assisted by A. Dal Ferro)

      Interveners in support of the applicant: Republic of Lithuania (in Case T-166/07 represented by D. Kriaučiūnas, Agent), and Hellenic Republic (in Case T-285/07 represented by S. Vodina and M. Michelogiannaki, Agents)

      Re:

   Application for the annulment of Notice of Open Competition EPSO/AD/94/07 for the drawing up of a reserve list for the recruitment of Administrators (AD 5) in the field of information, communication and the media (OJ 2007 C 45 A, p. 3) and Notice of Open Competition EPSO/AST/37/07 for the drawing up of a reserve list for the recruitment of Assistants (AST 3) in the field of communication and information (OJ 2007 C 45 A, p. 15), and Notice of Open Competition EPSO/AD/95/07 for the drawing up of a reserve list for the recruitment of Administrators (AD 5) in the field of information science (library/documentation) (OJ 2007 C 103 A, p. 7).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the Italian Republic to bear its own costs and to pay those of the European Commission;

               3.

               Orders the Republic of Lithuania and the Hellenic Republic to bear their own costs.

      (1)  OJ C 155, 7.7.2007.


title: Joined Cases T-331/10 RENV and T-416/10 RENV: Judgment of the General Court of 21 May 2015 — Yoshida Metal Industry v OHIM — Pi-Design and Others (Community figurative trade marks representing a surface with black dots) (Community trade mark — Invalidity proceedings — Community figurative trade marks representing a surface with black dots — Absolute ground for refusal — Sign consisting exclusively of the shape of the goods which is necessary to obtain a technical result — Article 7(1)(e)(ii) of Regulation (EC) No 207/2009)

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/6

         Judgment of the General Court of 21 May 2015 — Yoshida Metal Industry v OHIM — Pi-Design and Others (Community figurative trade marks representing a surface with black dots)
   (Joined Cases T-331/10 RENV and T-416/10 RENV) (1)

   ((Community trade mark - Invalidity proceedings - Community figurative trade marks representing a surface with black dots - Absolute ground for refusal - Sign consisting exclusively of the shape of the goods which is necessary to obtain a technical result - Article 7(1)(e)(ii) of Regulation (EC) No 207/2009))
   (2015/C 221/07)
   Language of the case: English

      Parties

      Applicant: Yoshida Metal Industry Co. Ltd (Tsubame-shi, Japan) (represented by: S. Verea, K. Muraro and M. Balestriero, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, Agent)

      Other parties to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Pi-Design AG (Triengen, Switzerland), Bodum France (Neuilly-sur-Seine, France), Bodum Logistics A/S (Billund, Denmark) (represented by: H. Pernez and R. Löhr, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 20 May 2010 (Cases R 1235/2008-1 and R 1237/2008-1), concerning invalidity proceedings between Pi-design AG, Bodum France and Bodum Logistics A/S, on the one hand, and Yoshida Metal Industry Co. Ltd, on the other.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions;

               2.

               Orders Yoshida Metal Industry Co. Ltd to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Pi-Design AG, Bodum France and Bodum Logistics A/S before the General Court and before the Court of Justice.

      (1)  OJ C 274, 9.10.2010.


title: Case T-423/10: Action brought on 16 September 2010 — Redaelli Tecna v Commission

text:
               20.11.2010

               EN

               Official Journal of the European Union

               C 317/36

         Action brought on 16 September 2010 — Redaelli Tecna v Commission
   (Case T-423/10)
   ()
   2010/C 317/65
   Language of the case: Italian

      Parties

      Applicant: Redaelli Tecna SpA (Milan, Italy) (represented by: R. Zaccà, M. Todino and E. Cruellas Sada, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the contested decision in so far as it finds that Redaelli participated in the cartel referred to in the decision throughout the period 1984-1992.

               —

               Annul the contested decision in so far as it rejected Redaelli’s request for leniency and, consequently, grant an appropriate reduction in the amount of the fine, on account of the cooperation given by Redaelli in the Commission’s investigation by means of that request.

               —

               Further reduce, on ground of equity, the fine imposed on Redaelli by way of compensation for the unreasonable length of the procedure.

      Pleas in law and main arguments

   The decision contested in the present case is the same as that in Case T-385/10 ArcellorMittal Wire France and Others v Commission.
   In particular, the applicant submits that:

               —

               The Commission committed a serious infringement of the principle of equal treatment by applying stricter standards only to Redaelli and refusing to grant it leniency, which, conversely, was granted to other undertakings whose requests for leniency contributed little in terms of ‘added value’, and considerably less than the added value contributed by the applicant. In so doing, the Commission also infringed the principle of protection of legitimate expectations because, essentially, it disregarded the applicant’s legitimate expectation that its own request would be assessed in the light of the criteria developed in the Commission’s practice at the time of the request, which were laid down in the 2002 Notice.

               —

               The Commission claimed incorrectly that the parties were involved in the cartel during the period 1984-1992 but has failed to adduce sufficient evidence concerning the existence of the cartel throughout the period in question.

               —

               The unreasonable length of the administrative procedure adversely affected the applicant’s rights of defence, as a result of which it was required to obtain exculpatory evidence after it had ceased to be available, and also had a negative impact on the actual assessment of the applicant’s request for leniency.


title: Case T-124/04: Order of the Court of First Instance of  26 October 2005  — Ouariachi v Commission (Action for damages — Non-contractual liability of the Community — Damage caused by a member of staff in the exercise of his functions — Absence of causal link)

text:
               14.1.2006

               EN

               Official Journal of the European Union

               C 10/21

         Order of the Court of First Instance of 26 October 2005 — Ouariachi v Commission
   (Case T-124/04) (1)

   (Action for damages - Non-contractual liability of the Community - Damage caused by a member of staff in the exercise of his functions - Absence of causal link)
   (2006/C 10/41)
   Language of the case: French
   Parties

      Applicant: Jamal Ouariachi (Rabat, Morocco) (represented by: F. Blanmailland and C. Verbrouck, lawyers)

      Defendant: Commission of the European Communities (represented by: F. Dintilhac and G. Boudot, Agents)
   Application for
   damages to compensate for the loss allegedly suffered by the applicant following the alleged illegal conduct of a member of staff of the Commission delegation in Khartoum (Sudan)
   Operative part of the Order

               1.

               The application is dismissed as being manifestly unfounded.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 118 of 30.4.2004.


title: Case C-314/99: Action brought on 23 August 1999 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
C 299/18               EN                     Official Journal of the European Communities                                    16.10.1999
Reference for a preliminary ruling by the High Court,                    Action brought on 23 August 1999 by the Kingdom of
Dublin, by order of that court of 30 July 1999, in the case              the Netherlands against the Commission of the European
of Gerard Mulligan, Tim O’Sullivan, Tom Power and Hugh                                             Communities
Duncan against the Minister for Agriculture and Food,
               Ireland and the Attorney General
                                                                                (Case C-314/99)
                                                                                (1999/C 299/21)
                         (Case C-313/99)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of Justice of the European
                                                                         Communities on 23 August 1999 by the Kingdom of the
                         (1999/C 299/20)                                 Netherlands, represented by Marc Fierstra, Head of the Euro-
                                                                         pean Law Department, and Nynke Wijmenga, a member of
                                                                         the Legal Service of the European Law Department of the
                                                                         Ministry of Foreign Affairs, The Hague.
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court, Dublin,
                                                                         The applicant claims that the Court should:
of 30 July 1999, which was received at the Court Registry on
18 August 1999, for a preliminary ruling in the case of Gerard
Mulligan, Tim O’Sullivan, Tom Power and Hugh Duncan                      (1) annul Commission Directive 1999/51/EC (1) of 26 May
against the Minister for Agriculture and Food, Ireland and the                1999 adapting to technical progress for the fifth time
Attorney General, on the following questions:                                 Annex I to Council Directive 76/769/EEC (2) on the
                                                                              approximation of the laws, regulations, and administrative
                                                                              provisions of the Member States relating to restrictions on
                                                                              the marketing and use of certain dangerous substances and
1. Is Article 7(1) of Council Regulation No 3950/92 (1) to be                 preparations (tin, PCP and cadmium), in so far as point 3
     interpreted as meaning that a Member State may provide                   in the Annex to Directive 1999/51/EC relates to cadmium;
     that a part of the reference quantity available on a holding
     shall not in the case of sale or lease be transferred with the      (2) order the Commission to pay the costs.
     holding to producers taking it over but shall instead be
     added to the national reserve by means of a ‘claw back’ or
     ‘siphoning off’ or some similar deduction mechanism?                Pleas in law and main arguments
                                                                         1. Misuse of powers.
2. If the answer to 1 above is in the affirmative is the
     procedure chosen by the Member State to make such                        — Point 3 in the Annex to Directive 1999/51/EC does
     provision subject only to principles of national law or is                   not concern an amendment within the meaning of
     the said procedure subject to the fundamental principles                     Article 2a of Directive 76/769/EEC; instead, it concerns
     of Community Law including a principle of legal certainty?                   a specific scheme relating to the use of cadmium in
                                                                                Austria and Sweden in respect of the application of
                                                                                Annex I to Directive 76/769/EEC. The contested
                                                                                addition does not result from any scientific and/or
3. If the answer to 1 above is in the affirmative and the                         technical developments, particularly in the field of
     national procedure is subject to Community Law is a                          substitutes for cadmium.
     national procedure whereby the Member State by Statutory
     Instrument empowers the Competent Authority to make a                    — Point 3 in the Annex to Directive 1999/51/EC provides
     determination of the cases of transfers referred to in                       for a derogation from the application of Directive
     Article 7(1) of Council Regulation No 3950/92 where any                      76/769/EEC and, in particular, of Directive
     part of the Milk Quota is not to be transferred with the                     91/338/EEC (3). The contested derogation concerns a
     holding but added to the national reserve and provides                       provision which is designed to achieve the fundamental
     that such determination be made by administrative notice                     aims of the policy of the Community. Like the
     to be published in a national newspaper contrary to the                      1995 Accession Treaty, which laid down special
     principle of legal certainty in Community Law?                               arrangements with regard to the application of Direc-
                                                                                tive 91/338/EEC to Austria and Sweden until 1 January
                                                                                1999, it provides for an exception to the acquis
                                                                                communautaire. This involves a policy decision which
                                                                                requires a strategy assessment to be carried out.
(1) of 28 December 1992, establishing an additional levy in the milk              The implementation of Directive 76/769/EEC is not
    and milk products sector (OJ L 405, 31.12.1992, p. 1).                        involved. That means that it is the European Parliament
                                                                                and the Council that have the competence to adopt,
                                                                                on a proposal from the Commission, a special position
                                                                                with regard to Austria and Sweden in respect of the
                                                                                period commencing on 1 January 1999, in accordance
                                                                                with Article 95 EC in conjunction with Article 251
                                                                                EC. Consequently, the Commission has exceeded its
                                                                                powers.
 ---pagebreak--- 16.10.1999             EN                   Official Journal of the European Communities                                       C 299/19
2. Infringement of Directive 76/769/EEC and, in particular,            The applicant claims that the Court should:
     of Directive 91/338/EEC: in that it provides, in relation to
     Austria and Sweden, for the power to prohibit the use of
     cadmium otherwise than as provided for in Annex I to              1. Declare that, by failing to adopt within the specified
     Directive 91/338/EEC, Directive 1999/51/EC is based on                 period the measures necessary to comply with Directive
     an incorrect interpretation of Directive 76/769/EEC, as                96/43/EC (1) the Federal Republic of Germany has failed to
     adapted by Directive 91/388/EEC. Directive 76/769/EEC is               fulfil its obligations under the EC Treaty and that directive;
     exclusively concerned with the uses to which cadmium
     may be put as expressly provided for in Annex I thereto.          2. Order the defendant to pay the costs of the proceedings.
     National restrictions on the uses to which cadmium may
     be put which are not provided for in Annex I to Directive
     76/769/EEC are permitted in so far as those restrictions
     are compatible with the EC Treaty, in particular Articles 28      Pleas in law and main arguments
     to 30 thereof.
3. Breach of the principle of legal certainty: Directive               In view of the binding nature of the provisions in Article 249
     1999/51/EC, taken as a whole refers only to the rules             EC, third paragraph, and Article 10 EC, first paragraph,
     applying in Austria and Sweden. Since the Austrian and            Member States are required to implement in their national law
     Swedish rules provide for restrictions on uses of cadmium         a directive addressed to them in such a way that it becomes
     which are not covered by Directive 76/769/EEC, there is a         fully effective when the period set for its implementation
     lack of clarity as to the scope of application of Directive       expires. That period, laid down in Article 4(1) and (2) of the
     76/769/EEC.                                                       Directive, expired on 1 July 1996/1 July 1997, without all
                                                                       the Federal Länder having hitherto adopted the necessary
4. Breach of the requirement to provide a statement of                 provisions.
     reasons: first of all, no reasons are given for the Com-
     mission’s view that the special position of Austria and
     Sweden with regard to the use of cadmium involves an
                                                                       (1) OJ 1996 L 162 of 1.7.1996, p. 1.
     adaptation to technical progress within the meaning of
     Article 2a of Directive 76/769/EEC. Nor are any reasons
     given as to which uses of cadmium are covered by the
     contested derogation. Moreover, no reasons are given as
     to why point 3 in the Annex to Directive 1999/51/EC
     purports to be based on technical progress and the
     existence of less dangerous substitutes. In addition, there
     should have been a statement of the reasons for which the
     Commission has expressly permitted Austria and Sweden,
     but not other Member States such as the Netherlands, to
     apply more rigorous restrictions.                                 Action brought on 26 August 1999 by the Commission
                                                                       of the European Communities against the French Republic
(1) OJ 1999 L 142, p. 22.
(2) OJ 1976 L 262, p. 201.                                                                        (Case C-319/99)
(3) OJ 1991 L 186, p. 59.
                                                                                (1999/C 299/23)
                                                                       An action against the French Republic was brought before the
                                                                       Court of Justice of the European Communities on 26 August
                                                                       1999 by the Commission of the European Communities,
                                                                       represented by Michel Nolin, of its Legal Service, acting as
Action brought on 24 August 1999 by the Commission                     Agent, with an address for service in Luxembourg at the office
of the European Communities against the Federal Repub-                 of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                          lic of Germany
                                                                       The applicant claims that the Court should:
                         (Case C-316/99)
                                                                       (1) declare that, by failing to communicate within the pre-
                         (1999/C 299/22)                                    scribed time-limit the laws, regulations and administrative
                                                                            measures necessary in order to comply with Council
                                                                            Directive 95/47/EC of 24 October 1995 on the use of
An action against the Federal Republic of Germany was                       standards for the transmission of television signals (1),
brought before the Court of Justice of the European Communi-                alternatively by failing to adopt the measures necessary in
ties on 24 August 1999 by the Commission of the European                    order to comply therewith, the French Republic has failed
Communities, represented by Klaus-Dieter Borchardt, of its                  to fulfil its obligations under that directive;
Legal Service, acting as Agent, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, also of
its Legal Service, Wagner Centre C 254, Kirchberg.                     (2) order the French Republic to pay the costs.


title: Case C-433/11: Reference for a preliminary ruling from the Krajský súd v Prešove (Slovak Republic) lodged on 22 August 2011 — SKP v Kveta Polhošová

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/7

         Reference for a preliminary ruling from the Krajský súd v Prešove (Slovak Republic) lodged on 22 August 2011 — SKP v Kveta Polhošová
   (Case C-433/11)
   2011/C 340/12
   Language of the case: Slovak

      Referring court

   Krajský súd v Prešove

      Parties to the main proceedings

      Applicant: SKP

      Defendant: Kveta Polhošová

      Questions referred

               1.

               Are Articles 5 to 9 of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (1) to be interpreted as meaning that the practice whereby a supplier assigns claims against a consumer to an entity in bankruptcy should be regarded as an unfair commercial practice if the consumer has no guarantee of reimbursement of the costs of legal proceedings arising from a consumer contract?

               2.

               If the answer to the preceding question is that the assignment of claims against a consumer to an entity in bankruptcy for recovery purposes is contrary to EU law, in that case:

                           A.

                           Can Article 47 of the Charter of Fundamental Rights of the EU be interpreted in such a way that it is not contravened by a court procedure whereby the court, in order to protect consumers, does not apply the statutory fee concession of the trustee in bankruptcy, and that, in such a case, the court does not infringe the right of the trustee in bankruptcy to judicial protection if it discontinues the proceedings if the fee for the application is not paid?

                           B.

                           Do Articles 6(1) and 7(1) of Council Directive 93/13/EEC on unfair terms in consumer contracts (2) preclude the application of provisions of national law exempting a trustee in bankruptcy from court fees if, in the absence of the unfair commercial practice, the applicant would not be exempt from court fees and the discontinuance of proceedings would prevent the judicial proceedings concerning fulfilment of the unfair term?

      (1)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’); OJ 2005 L 149, p. 22.

      (2)  OJ 1993 L 95, p. 29.


title: Case T-239/12: Judgment of the General Court of 1 July 2014  — Jyoti Ceramic Industries v OHIM — DeguDent (ZIECON) (Community trade mark — Opposition proceedings — Application for Community figurative mark ZIECON — Earlier Community word mark CERCON — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Examination of the facts of its own motion — Article 76 of Regulation No 207/2009)

text:
               25.8.2014

               EN

               Official Journal of the European Union

               C 282/28

         Judgment of the General Court of 1 July 2014 — Jyoti Ceramic Industries v OHIM — DeguDent (ZIECON)
   (Case T-239/12) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark ZIECON - Earlier Community word mark CERCON - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Examination of the facts of its own motion - Article 76 of Regulation No 207/2009))
   2014/C 282/36
   Language of the case: German

      Parties

      Applicant: Jyoti Ceramic Industries PVT. Ltd (Nashik, India) (represented by: R. Egerer, D. Jochim and A. Kolb, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: DeguDent GmbH (Hanau, Germany) (represented by: W. Blau, T. Hertl and P. Winkler, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 2 March 2012 (Case R 2546/2010-1) concerning opposition proceedings between DeguDent GmbH and Jyoti Ceramic Industries PVT. Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Jyoti Ceramic Industries PVT. Ltd to bear its own costs and to pay those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and DeguDent GmbH.

      (1)  OJ C 209, 14.7.2012.


title: Case T-140/01: Action brought on 18 June 2001 by Paul Doyle against Commission of the European Communities

text:
1.9.2001                EN                     Official Journal of the European Communities                                      C 245/27
—     order the Commission, pursuant to Articles 235 and the                    Commission has exceeded the powers granted to it by
      second paragraph of 288 EC, to make good the damage                       the Council to manage the banana Common Market
      caused to the applicants by the wrongful adoption of                      Organisation lawfully in accordance with good adminis-
      either or both Regulation No 896/2001 and Regulation                      trative practice.
      No 1121/2001, and to pay compensatory interest on all
      sums found to be due, such interest to run from the date            —     The Commission has infringed the applicants’ right to
      on which the damage materialised;                                         have their full entitlement to licences respected, and has
                                                                                allowed certain operators to gain inappropriate rights.
—     make any orders which the Court considers necessary
      and in particular, pursuant to Article 65 of the Rules of           (1) OJ L 126 of 8.5.01, p. 6.
      Procedure of the Court of First Instance, to request the            (2) OJ L 153 of 8.6.01, p. 12.
      Commission to provide figures concerning the actual
      licence usage for 1994, 1995, 1996; and
—     order the Commission to pay the costs of the proceedings.
                                                                          Action brought on 18 June 2001 by Paul Doyle against
                                                                                Commission of the European Communities
Pleas in law and main arguments
                                                                                (Case T-140/01)
The present application concerns two regulations:                                                  (2001/C 245/44)
—     Commission Regulation (EC) No 896/2001 of 7 May                                        (Language of the case: French)
      2001 laying down detailed rules for applying Council
      Regulation (EEC) No 404/93 as regards the arrangements
      for importing bananas into the Community (1); and                   An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
                                                                          European Communities on 18 June 2001 by Paul Doyle,
—     Commission Regulation (EC) No 1121/2001 of 7 June                   residing in Brussels, represented by Jean-Noël Louis and
      2001 fixing the adjustment coefficients to be applied to            Véronique Peere, lawyers.
      each traditional operator’s reference quantity under the
      tariff quotas for imports of bananas (2).
                                                                          The applicant claims that the Court should:
                                                                          —     annul the decision of the Commission to limit to
The applicants submit that:                                                     EUR 1 880 .10 the amount transferable to the United
                                                                                Kingdom with effect from October 2000;
—     The method which the Commission has adopted in
      Article 4(1) of Regulation No 896/2001 for calculating              —     order the defendant to pay the costs.
      operator reference quantities is illegal, inasmuch as it
      fixes those quantities by reference to total figures which
      the Commission must know to be substantially incorrect.
                                                                          Pleas in law and main arguments
      In addition, Regulation No 896/2001 precludes the
      correction of reference quantities either by the Com-
      mission itself or by the Member States acting as its agents.        The applicant, an Irish national, has lived for several years in
                                                                          the United Kingdom, having been assigned to a post in
                                                                          Brussels. He challenges the Commission’s decision to limit the
—     Regulation No 1121/2001 fixes the Applicant’s
                                                                          amount transferable to the United Kingdom to 19 % of his net
      entitlement to licences for the second half of 2001 and
                                                                          salary. In support of his application, the applicant alleges
      was adopted on the basis of Article 5 of Regulation
                                                                          infringement of Article 17 of Annex VII to the Staff Regulations
      No 896/2001. As to what is claimed to be the incorrect
                                                                          and invalidity of the general provisions implementing it.
      reference quantities adopted on the basis of Article 4 of
                                                                          According to the applicant, the Commission was required to
      Regulation No 896/2001, an essential element in the
                                                                          transfer a higher rate on account of the regular expenditure
      calculation of the adjustment coefficient, the adjustment
                                                                          which he continues to incur in the United Kingdom and in
      coefficient itself is incorrect and illegal.
                                                                          respect of his dependent children who are pursuing their
                                                                          studies there.
—     In adopting both these Regulations, on the basis of facts
      that the Commission must know to be incorrect, the


title: Case C-49/13: Order of the Court (Third Chamber) of 14 November 2013 (request for a preliminary ruling from the Úřad průmyslového vlastnictví — Czech Republic) — MF 7 a.s. v MAFRA a.s. (Article 267 TFEU — Concept of ‘court or tribunal’  — Proceedings intended to lead to a decision of a judicial nature — Independence — Clear lack of jurisdiction of the Court)

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/8

         Order of the Court (Third Chamber) of 14 November 2013 (request for a preliminary ruling from the Úřad průmyslového vlastnictví — Czech Republic) — MF 7 a.s. v MAFRA a.s.
   (Case C-49/13) (1)

   ((Article 267 TFEU - Concept of ‘court or tribunal’ - Proceedings intended to lead to a decision of a judicial nature - Independence - Clear lack of jurisdiction of the Court))
   2014/C 102/10
   Language of the case: Czech

      Referring court

   Úřad průmyslového vlastnictví

      Parties to the main proceedings

      Applicant: MF 7 a.s.

      Defendant: MAFRA a.s.

      Re:

   Request for a preliminary ruling — Úřad průmyslového vlastnictví — Interpretation of Article 3(2)(d) of Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25) — Criteria for the assessment of bad faith — Influence of circumstances which occurred after the application for registration was filed on the assessment of the good faith of the applicant — Consent by the proprietor of the trade mark to conduct which might limit its exclusive rights — Contracts concluded between the proprietor of the earlier trade mark and the applicant for the later trade mark not governing intellectual property rights — Tolerance of the contested trade mark by the proprietor of an earlier trade mark for a prolonged period.

      Operative part of the order

   The Court of Justice of the European Union clearly has no jurisdiction to answer the questions referred by the Úřad průmyslového vlastnictví (Czech Republic) in its decision of 22 January 2013.

      (1)  OJ C 141, 18.5.2013.


title: Case C-442/16: Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 8 August 2016 — Florea Gusa v Minister for Social Protection, Attorney General

text:
               17.10.2016

               EN

               Official Journal of the European Union

               C 383/6

         Reference for a preliminary ruling from the Court of Appeal (Ireland) made on 8 August 2016 — Florea Gusa v Minister for Social Protection, Attorney General
   (Case C-442/16)
   (2016/C 383/07)
   Language of the case: English

      Referring court

   Court of Appeal

      Parties to the main proceedings

      Applicant: Florea Gusa

      Defendants: Minister for Social Protection, Attorney General

      Questions referred

               1.

               Does an EU citizen who (1) is a national of another Member State; (2) has lawfully resided in and worked as a self employed person in a host Member State for approximately four years; (3) has ceased his work or economic activity by reason of absence of work and (4) has registered as a jobseeker with the relevant employment office retain the status of self employed person pursuant to Article 7(1)(a) whether pursuant to Article 7(3)(b) of Directive 2004/38/EC (1) or otherwise.

               2.

               If not, does he retain the right to reside in the host Member State not having satisfied the criteria in Article 7(1) (b) or (c) of Directive 2004/38/EC or is he only protected from expulsion pursuant to Article 14(4) (b) of Directive 2004/38/EC.

               3.

               If not, in relation to such a person is a refusal of a jobseeker’s allowance (which is a non-contributory special benefit within the meaning of Article 70 of Regulation 883/2004/EC (2)) by reason of a failure to establish a right to reside in the host Member State compatible with EU law, and in particular Article 4 of Regulation 883/2004/EC.

      (1)  Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC OJ 2004 L 158, p. 77

      (2)  Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ 2004L 166, p. 1


title: Judgment of the Court of First Instance of 13 January 2004 in Case T-158/99: Thermenhotel Stoiser Franz Gesellschaft mbH & Co. KG and Others v Commission of the European Communities (State aid — Aid for regional purposes — Validity of lawyer's signature on the application — Standing — Statement of reasons — Compatibility with the common market — Prohibition of discrimination — Right of establishment of the national competitors of the aid recipient — Protection of the environment — Misuse of powers)

text:
C 85/22                EN                           Official Journal of the European Union                                              3.4.2004
                                                         COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                      of 11 December 2003                                                          of 13 January 2004
                                                                            in Case T-158/99: Thermenhotel Stoiser Franz Gesell-
in Case T-61/99: Adriatica di Navigazione SpA v Com-
                                                                            schaft mbH & Co. KG and Others v Commission of the
          mission of the European Communities (1)
                                                                                European Communities (1)
(Competition — Article 85(1) of the EC Treaty (now                          (State aid — Aid for regional purposes — Validity of
Article 81(1) EC) — Definition of the relevant market —                     lawyer’s signature on the application — Standing — State-
Statement of reasons — Price-fixing agreement — Proof of                    ment of reasons — Compatibility with the common market
participation in the agreement — Proof that a participant                   — Prohibition of discrimination — Right of establishment
distanced himself from the agreement — Principle of non-                    of the national competitors of the aid recipient — Protection
      discrimination — Fines — Criteria for assessment)                                of the environment — Misuse of powers)
                          (2004/C 85/41)                                                              (2004/C 85/42)
                    (Language of the case: Italian)                                           (Language of the case: German)
                                                                            In Case T-158/99, Thermenhotel Stoiser Franz Gesellschaft
In case T-61/99: Adriatica di Navigazione SpA, established in               mbH & Co. KG, VierJahreszeiten Hotel-Betriebsgesellschaft
Venice (Italy), represented by U. Feraro, M. Siragusa and                   mbH & Co. KG, Thermenhotel Kowald, Thermalhotel Leitner
F. M. Moretti, lawyers, with an address for service in Luxem-               GesmbH, established in Loipersdorf (Austria), represented
bourg, against Commission of the European Communities                       by G. Eisenberger, lawyer, with an address for service in
(Agents: R. Lyal and L. Pignataro) — application for annulment              Luxembourg, v Commission of the European Communities
of Commission Decision 1999/271/EC of 9 December 1998                       (Agents: V. Kreuschitz and J. Macdonald Flett), supported
relating to a proceeding pursuant to Article 85 of the EC                   by Republic of Austria (Agents: W. Okresek, H. Dossi,
Treaty (IV/34.466 — Greek Ferries) (OJ 1999 L 109, p. 24) —                 C. Pesendorfer and T. Kramler): Application for annulment of
the Court of First Instance (Fifth Chamber), composed of                    Commission Decision SG(99) D/1523 of 3 February 1999
J. D. Cooke, President, R. García-Valdecasas and P. Lindh,                  declaring State aid in connection with a hotel project in
Judges; J. Plingers, Administrator, acting for the Registrar, has           Loipersdorf (Austria) compatible with the common market, the
given a judgment on 11 December 2003, in which it:                          Court of First Instance (First Chamber, Extended Composition),
                                                                            composed of: B. Vesterdorf, President, J. Azizi, M. Jaeger,
                                                                            H. Legal and M. E. Martins Ribeiro, Judges; D. Christensen,
1.    Sets the fine imposed on Adriatica di Navigazione SpA at              Administrator, for the Registrar, has given a judgment on
      EUR 245 000;                                                          13 January 2004, in which it:
2.    Dismisses the remainder of the application;                           1.    Dismisses the application;
3.    Orders Adriatica di Navigazione SpA to bear its own costs and         2.    Orders the applicants to pay the Commission’s costs;
      to pay three quarters of those incurred by the Commission and
      orders the Commission to bear one quarter of its own costs.
                                                                            3.    Orders the Republic of Austria to bear its own costs.
(1) OJ C 160 of 5.6.1999.                                                   (1) OJ C 299 of 16.10.1999.


title: Case C-422/12 P: Order of the Court (Third Chamber) of 30 January 2014 — Industrias Alen SA de CV v The Clorox Company, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Article 181 of the Rules of Procedure — Community trade mark — Opposition proceedings — Application for Community word mark CLORALEX — Earlier national word mark CLOROX — Likelihood of confusion — Regulation (EC) No 207/2009 — Article 8(1)(b) — Cross-appeal — Article 176 of the Rules of Procedure — Requirement to introduce the cross-appeal by a separate document)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/16

         Order of the Court (Third Chamber) of 30 January 2014 — Industrias Alen SA de CV v The Clorox Company, Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-422/12 P) (1)

   ((Appeal - Article 181 of the Rules of Procedure - Community trade mark - Opposition proceedings - Application for Community word mark CLORALEX - Earlier national word mark CLOROX - Likelihood of confusion - Regulation (EC) No 207/2009 - Article 8(1)(b) - Cross-appeal - Article 176 of the Rules of Procedure - Requirement to introduce the cross-appeal by a separate document))
   2014/C 112/18
   Language of the case: Spanish

      Parties

      Appellant: Industrias Alen SA de CV (represented by: A. Padial Martinez, abogada)

      Other parties to the proceedings: The Clorox Company (represented by: S. Malynicz, Barrister), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, acting as Agent)

      Re:

   Appeal brought against the judgment of the General Court (Fourth Chamber) of 10 July 2012 in Case T-135/11 Clorox v OHIM — Industrias Alen (CLORALEX), by which that court annulled the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 16 December 2010 (Case R 521/2009-4).

      Operative part of the order

               1.

               The main appeal and the cross-appeal are dismissed.

               2.

               Industrias Alen SA de CV is ordered to bear its own costs and to pay the costs incurred by The Clorox Company.

               3.

               The Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) is to bear its own costs.

      (1)  OJ C 379, 8.12.2012.