title: Case C-328/16: Action brought on 1 June 2016 — European Commission v Hellenic Republic

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/13

         Action brought on 1 June 2016 — European Commission v Hellenic Republic
   (Case C-328/16)
   (2016/C 402/16)
   Language of the case: Greek

      Parties

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

      Defendant: Hellenic Republic

      Form of order sought

   The applicant claims that the Court should:

               —

               declare that the Hellenic Republic, by failing to take all measures required for the implementation of the judgment delivered by the Court on 24 June 2004 in Case C-119/02, (1)
                  Commission v Greece, has failed to fulfil its obligations under Article 260(1) TFEU;

               —

               order the Hellenic Republic to pay to the Commission a proposed penalty payment of EUR 34 974 for each day of delay in the implementation of the judgment delivered in Case C-119/02 from the date when the judgment in this case is delivered until the date when the judgment that was delivered in Case C-119/02 has been implemented,

               —

               order the Hellenic Republic to pay a daily lump sum amounting to EUR 3 828 per day from the date of delivery of the judgment in Case C-119/02 until the date when the judgment in this case is delivered or the date when the judgment in Case C-119/02 is implemented, whichever is the earlier,

               —

               order the Hellenic Republic to pay the costs.

      Pleas in law and main arguments

               1.

               In the judgment of 24 June 2004, in Case C-119/02, Commission v Greece, the Court declared that:
               ‘… by not taking the measures necessary for the installation of a collecting system for urban waste water from the area of Thriasio Pedio and not subjecting urban waste water from that area to treatment more stringent than secondary treatment before its discharge into the sensitive area of the Gulf of Eleusina, the Hellenic Republic has failed to fulfil its obligations under the second subparagraph of Article 3(1) and Article 5(2) of Council Directive 91/271/EEC of 21 May 1991
                (2)
               concerning urban waste-water treatment, as amended by Commission Directive 98/15/EC of 27 February 1998.’

               2.

               The Hellenic Republic was obliged to take the necessary measures to ensure that the urban waste-water from the area of Thriasio Pedio (which encompasses the towns of Eleusina, Aspropirgos, Magoula and Mandra) is collected and subjected to treatment in accordance with the second paragraph of Article 3(1) and Article 5(2) of Directive 91/271/ΕEC as amended by Directive 98/15/EC before its discharge into the sensitive area of the Gulf of Eleusina. The system for the collection and treatment of waste-water from the area of Thriasio Pedio ought to have been established by 31 December 1998 at the latest. In addition, by that date the urban waste-water ought to have been subjected to treatment more stringent than secondary treatment (‘tertiary treatment’) before its discharge into sensitive areas.

               3.

               The Hellenic Republic was obliged to ensure the collection and treatment of all the urban waste-water from the area of Thriasio Pedio and its subjection to treatment more stringent than secondary treatment treatment, and also prove that the operation of the waste-water treatment plants was in compliance with the requirements of the directive.

               4.

               Compliance with the judgment of the Court ought to have been achieved by means of completion of various projects:

                           —

                           the creation of an urban waste water treatment centre;

                           —

                           the construction of the ‘main’ conduits (for the urban waste water network) or the ‘basic network’,

                           —

                           the construction of conduits (for the urban waste water network) or ‘the secondary network’,

                           —

                           the connection of the various settlements/industries in the area (the towns of Aspropirgos, Eleusina, Mandra, Magoula) with the urban waste water network, or ‘the tertiary network’.

               5.

               The competent Greek authorities informed the Commission that the greater part of the entire project should have been completed by the end of 2010. The basic network was in the construction stage, the secondary network had been 45 % completed and the tertiary network was under development. The authorities maintained that the urban waste-water treatment centre would be able to collect the urban waste-water from the entire population of the area before the end of 2010.With regard to the main network, it would cover 100 % of the population of the towns of Aspropirgos, Mandra and Magoula and 2/3 of Eleusina (in total around 90 % with respect to the four towns). The remainder of the population would be covered by 30 April 2011.

               6.

               The Commission concluded from the above that, as at 18 July 2011, the judgment of the Court had still not been fully implemented.

               7.

               The Greek authorities, in their reply of 27 November 2012, informed the Commission that the urban waste-water treatment centre had been operational since 27 July 2012 but that the secondary and tertiary network had not yet been completed (postponed until the end of March 2013). With respect to the secondary network, that would almost be completed, with the exception of part of the town of Eleusina (‘Lower Eleusina’) where work had been delayed due to archaeological finds. It is further indicated that currently 24 % of the urban waste water of the Thriasio Pedio agglomeration is collected and subjected to treatment by the urban waste-water treatment centre. The authorities also sent evidence to show (tertiary treatment for the urban waste-water that is collected) that the operation of the plant is lawfully compliant.

               8.

               The Commission considers that notwithstanding the period of 12 years since the date of delivery of the judgment concerned, the Hellenic Republic has still not yet fully implemented it. The waste-water treatment plants have been completed and brought into operation since 27 July 2012, with the capacity for removal of nitrogen, but the Commission emphasises that only a very low percentage (28 %) of the urban waste-water from the area of Thriasio Pedio is currently subject to collection and treatment.

               9.

               In addition, the Commission has not obtained from the competent authorities any timetable with reliable data to permit any assessment of when any realistic progress can be expected. The Commission emphasises that the various deadlines which the Greek authorities have over time made known to the Commission have never been observed. Quite apart from the tertiary network, which connects various settlements and industries in the area, the secondary network (the construction of large conduits) has also not been completed, in that the area of Lower Eleusina in the town of Eleusina is excluded.

               10.

               The Commission states that there is no statistical data to demonstrate that the urban waste-water which has been collected has been subject to treatment more stringent than secondary treatment, with the exception of the reply from the Greek authorities of 27 November 2012. That reply contains data, but that data covers only one period of four months, since the plant had been brought into operation on 27 July 2012. In any event, in order to prove adequate treatment of the collected waste-water the Greek authorities are under an obligation to demonstrate that the operation of the treatment plant has been lawfully compliant for a period of 12 months, recording a percentage of reduction in BOD5 (biochemical oxygen demand) and COD (chemical oxygen demand) which satisfies the requirements of the directive with respect to secondary treatment and, with respect to the tertiary treatment, an adequate percentage of reduction in nitrogen that complies with Table 2 of Annex Ι to the directive. While that data is absent the Commission is not in a position to verify whether the urban waste-water which is now collected is finally subjected to treatment more stringent than secondary treatment, as that is described in Article 4 of the directive.

      (1)  EU:C:2004:385

      (2)
         OJ 1991, L 135, p. 40


title: Case C-39/09 P: Appeal brought on 30 January 2009 by Société des plantations de Mbanga SA (SPM) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 13 November 2008 in Case T-128/05 SPM v Council and Commission

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/11

         Appeal brought on 30 January 2009 by Société des plantations de Mbanga SA (SPM) against the judgment of the Court of First Instance (Eighth Chamber) delivered on 13 November 2008 in Case T-128/05 SPM v Council and Commission
   (Case C-39/09 P)
   2009/C 90/16
   Language of the case: French

      Parties

      Appellant: Société des plantations de Mbanga SA (SPM) (represented by: A. Farache, avocat)

      Other parties to the proceedings: Council of the European Union, Commission of the European Communities

      Form of order sought

   The appellant claims the Court should:

               —

               primarily:

                           —

                           partially set aside the judgment of the Court of First Instance;

                           —

                           order the Commission to pay damages and the costs of the case at first instance and on appeal, including those of the appellant;

               —

               in the alternative:

                           —

                           refer the case back to the Court of First Instance for it to rule again and make a decision as to the amount of damages to be paid.

      Pleas in law and main arguments

   The appellant essentially puts forward two pleas in law in support of its appeal.
   First, it submits that the Court of First Instance erred in law in holding that the Community system for the import of bananas does not manifestly and seriously infringe the principle of maintaining effective competition, a principle which, according to the appellant, is a rule of law intended to confer rights on individuals.
   In this connection the appellant alleges, first, the failure by the Court of First Instance to take into account the objectives of competition in so far as it based its judgment solely on the general objectives pursued specifically in the context of the organisation of the common market in the banana sector. Secondly, the appellant claims that the Court of First Instance incorrectly interpreted the connection between the Community legislation and the anti-competitive practices existing on the banana market in so far as it refused to concede that the Community provisions enable, by means of import licences, the grant of economic advantages to certain privileged operators, whose position on the market is strengthened by the existing rules.
   By its second plea, the appellant pleads the infringement, by the Court of First Instance, of general principles of law and, inter alia, of the principle of sound administration in so far as it held that that principle, in itself, is not a rule of law intended to confer rights on individuals. That principle has been affirmed many times in case-law and has the effect, in the present case, of putting the Commission under an obligation to take into consideration the particular circumstances of the market and of the producers who are not able to obtain the status of operators at the time of the adoption of the Community legislation.


title: Case C-5/17: Reference for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 6 January 2017 — Commissioners for Her Majesty’s Revenue and Customs v DPAS Limited

text:
               13.3.2017

               EN

               Official Journal of the European Union

               C 78/15

         Reference for a preliminary ruling from the Upper Tribunal (Tax and Chancery Chamber) (United Kingdom) made on 6 January 2017 — Commissioners for Her Majesty’s Revenue and Customs v DPAS Limited
   (Case C-5/17)
   (2017/C 078/20)
   Language of the case: English

      Referring court

   Upper Tribunal (Tax and Chancery Chamber)

      Parties to the main proceedings

      Applicant: Commissioners for Her Majesty’s Revenue and Customs

      Defendant: DPAS Limited

      Questions referred

   In the light of Article 135(1)(d) of Council Directive 2006/112/EC (1) (the Principal VAT Directive) and the interpretations of that provision given by the Court of Justice in AXA, Bookit II and NEC, the Upper Tribunal (Tax and Chancery Chamber) respectfully refers the following questions to the Court of Justice of the European Union for a preliminary ruling:

               (1)

               Is a service, such as that performed by the taxpayer in the present case, consisting of directing, pursuant to a direct debit mandate, that money is taken by direct debit from a patient’s bank account and passed by the taxpayer, after deduction of the taxpayer’s remuneration, to the patient’s dentist and insurance provider, an exempt supply of transfer or payment services within Article 135(1)(d) of the Principal VAT Directive?
               In particular, do the decisions in Bookit II and NEC lead to the conclusion that the exemption from VAT in Article 135(1)(d) is not applicable to a service, such as that performed by the taxpayer in the present case, which does not involve the taxpayer itself debiting or crediting any accounts over which it has control but which, where a transfer of funds results, is essential to that transfer? Or does the decision in AXA lead to the contrary conclusion?

               (2)

               What are the relevant principles to be applied for determining whether or not a service such as that performed by the taxpayer in the present case falls within the scope of ‘debt collection’ within Article 135(1)(d)? In particular, if (as the Court decided in AXA in relation to the same or a very similar service) such a service would constitute debt collection if provided to the person to whom the payment is due (i.e. the dentists in the present case and in AXA), does that service also constitute debt collection if such a service is provided to the person from whom the payment is due (i.e. the patients in the present case)?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006, L 347, p. 1).


               20.6.2013

               EN

               Official Journal of the European Union

               C 174/10

         Action brought on 13 March 2013 by Bentzen Transport AS against the EFTA Surveillance Authority
   (Case E-2/13)
   2013/C 174/06
   An action against the EFTA Surveillance Authority was brought before the EFTA Court on 13 March 2013 by Bentzen Transport AS, represented by Line Voldstad, Lawyer, Advokatfirma DLA Piper Norway DA, Postboks 1364 Vika, 0114 Oslo, Norway.
   The Applicant requests the EFTA Court to:

               1.

               Annul the EFTA Surveillance Authority Decision of 19 December 2012, Case No 71620, concerning closing a case against Norway commenced following receipt of a complaint against the State in the field of public procurement;

               2.

               Order the EFTA Surveillance Authority to pay the costs of the proceedings.

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

               —

               The Applicant is a local Norwegian company operating in the waste-management business since 1992.

               —

               The basis for the application is the EFTA Surveillance Authority’s Decision in Case No 71620, not to initiate procedure against Norway when requested by the applicant to assess whether the Norwegian Government’s management of a tender process was in compliance with the directives under the EEA Agreement.

         The Applicant claims, inter alia, that:

               —

               the EFTA Surveillance Authority has not assessed whether the awarding of the public contract was in compliance with Directive 2004/18/EC and thus infringed its duty to uphold Article 2 of Directive 2004/18/EC and the fundamental rules of the EEA Agreement applicable to public procurement and asserts that the principle of equal treatment has been violated;

               —

               the EFTA Surveillance Authority infringed its special duty under Article 23 of the Surveillance and Court Agreement to ensure that the regulations in the EEA Agreement relating to public procurement are upheld by the EFTA States; and

               —

               the EFTA Surveillance Authority has infringed its duty to state reasons, cf. Article 16 SCA.


title: Judgment of the Court (Sixth Chamber) of 10 September 2002 in Case C-141/00 (Reference for a preliminary ruling from the Bundesfinanzhof): Ambulanter Pflegedienst Kügler GmbH v Finanzamt für Körperschaften I in Berlin (Article 13(A)(1)(c) and (g) of the Sixth Directive (77/388/EEC) — Exemption of care provided by capital companies — Services closely linked to welfare and social security work supplied by organisations, not being bodies governed by public law, recognised as charitable by the Member State concerned — Direct effect)

text:
C 274/8                 EN                       Official Journal of the European Communities                                          9.11.2002
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                          (Fifth Chamber)
                                                                                of 10 September 2002
                      of 19 September 2002
                                                                            in Case C-141/00 (Reference for a preliminary ruling from
                                                                            the Bundesfinanzhof): Ambulanter Pflegedienst Kügler
in Case C-114/00: Kingdom of Spain v Commission of the
                                                                               GmbH v Finanzamt für Körperschaften I in Berlin ( 1)
                   European Communities ( 1)
                                                                            (Article 13(A)(1)(c) and (g) of the Sixth Directive (77/388/
(State aid — Agriculture — Aid awarded in the form of an                    EEC) — Exemption of care provided by capital companies —
interest-rate rebate for loans lasting less than one year —                 Services closely linked to welfare and social security work
Article 87(1) and (3)(a) and (c) EC — Commission Notice                     supplied by organisations, not being bodies governed by
96/C 44/02 on State aids: subsidised short-term loans in                    public law, recognised as charitable by the Member State
agriculture (crédits de gestion) — Small amount of aid —                                         concerned — Direct effect)
No comments from interested parties — Operating aid —
Aid relating to products subject to a common organisation
of the market — Restrictions on the free movement of goods                                             (2002/C 274/12)
                     — Statement of reasons)
                                                                                (Language of the case: German)
                          (2002/C 274/11)
                                                                            (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   (Language of the case: Spanish)
(Provisional translation; the definitive translation will be published      In Case C-141/00: Reference to the Court under Article 234
                   in the European Court Reports)                           EC by the Bundesfinanzhof (Germany) for a preliminary
                                                                            ruling in the proceedings pending before that court between
                                                                            Ambulanter Pflegedienst Kügler GmbH and Finanzamt für
                                                                            Körperschaften I in Berlin, on the interpretation of
                                                                            Article 13(A)(1)(c) and (g) of the Sixth Council Directive (77/
                                                                            388/EEC) of 17 May 1977 on the harmonisation of the laws
In Case C-114/00, Kingdom of Spain (Agent: S. Ortiz Vaamon-                 of the Member States relating to turnover taxes — Common
de) v Commission of the European Communities (Agent:                        system of value added tax: uniform basis of assessment
D. Triantafyllou): Application for annulment of Commission                  (OJ 1977 L 145, p. 1), the Court (Sixth Chamber), composed
Decision 2000/240/EC of 22 December 1999 concerning an                      of: F. Macken (Rapporteur), President of the Chamber, C. Gul-
aid scheme implemented by Spain to finance operating capital                mann, J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues,
in the agricultural sector in Extremadura (OJ 2000 L 76, p. 16),            Judges; A. Tizzano, Advocate General; H. von Holstein, Deputy
the Court (Fifth Chamber), composed of: P. Jann, President of               Registrar, has given a judgment on 10 September 2002, in
the Chamber, D.A.O. Edward, A. La Pergola, M. Wathelet                      which it has ruled:
and C.W.A. Timmermans (Rapporteur), Judges; F.G. Jacobs,
Advocate General; R. Grass, Registrar, has given a judgment
on 19 September 2002, in which it:                                          1.    The exemption envisaged in Article 13(A)(1)(c) of the Sixth
                                                                                Council Directive (77/388/EEC) of 17 May 1977 on the
                                                                                harmonisation of the laws of the Member States relating to
1.    Dismisses the application;                                                  turnover taxes — Common system of value added tax: uniform
                                                                                basis of assessment is not dependent on the legal form of the
                                                                                taxable person supplying the medical or paramedical services
2.    Orders the Kingdom of Spain to pay the costs.                               referred to in that provision.
                                                                            2.    The exemption envisaged in Article 13(A)(1)(c) of the Sixth
( 1) OJ C 192 of 8.7.2000.                                                        Directive (77/388/EEC) applies to the provision of care of a
                                                                                therapeutic nature by a capital company running an out-patient
                                                                                service under which care, including home care, is provided by
                                                                                qualified nursing staff, to the exclusion of the provision of
                                                                                general care and domestic help.
 ---pagebreak--- 9.11.2002                EN                       Official Journal of the European Communities                                            C 274/9
3.    a)    The provision of general care and domestic help by an            1.    Declares that, by failing to adopt all the measures necessary to
            out-patient care service to persons in a state of physical or          ensure the correct transposition of Articles 4, 7(3), 11, 12(2),
            economic dependence amounts to the supply of services                  18(1) and (3) and 22(1) of Council Directive 86/609/EEC of
            closely linked to welfare and social security work within              24 November 1986 on the approximation of laws, regulations
            the meaning of Article 13(A)(1)(g) of the Sixth Directive              and administrative provisions of the Member States regarding
            (77/388/EEC).                                                          the protection of animals used for experimental and other
                                                                                scientific purposes, the French Republic has failed to fulfil its
      (b) The exemption provided for in Article 13(A)(1)(g) of the                 obligations under that directive;
            Sixth Directive (77/388/EEC) may be relied upon by a
            taxable person before national courts in order to oppose         2.    Orders the French Republic to pay the costs.
            national rules incompatible with that provision. It is for
            the national court to establish, in the light of all relevant    (1 ) OJ C 176 of 24.6.2000.
            factors, whether the taxable person is an organisation
            recognised as charitable within the meaning of the
            aforesaid provision.
( 1) OJ C 176 of 24.6.2000.
                                                                                JUDGMENT OF THE COURT
                                                                                (Sixth Chamber)
                                                                                of 10 September 2002
                                                                             in Case C-172/00 (Reference for a preliminary ruling from
                  JUDGMENT OF THE COURT                                      the Landgericht Köln): Ferring Arzneimittel GmbH v
                                                                                Eurim-Pharm Arzneimittel GmbH ( 1)
                           (Fifth Chamber)
                                                                             (Interpretation of Article 28 EC and Article 30 EC —
                        of 12 September 2002                                 Medicinal products — Withdrawal of parallel import licence
                                                                             in consequence of waiver of the marketing authorisation for
                                                                             the medicinal product of reference by the holder of that
in Case C-152/00: Commission of the European Communi-                                                    authorisation)
                      ties v French Republic ( 1)
                                                                                (2002/C 274/14)
(Failure by a Member State to fulfil its obligations —
      Directive 86/609/EEC — Incomplete transposition)                                           (Language of the case: German)
                           (2002/C 274/13)                                   (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
                                                                             In Case C-172/00: Reference to the Court under Article 234
(Provisional translation; the definitive translation will be published       EC by the Landgericht Köln (Germany) for a preliminary ruling
                    in the European Court Reports)                           in the proceedings pending before that court between Ferring
                                                                             Arzneimittel GmbH and Eurim-Pharm Arzneimittel GmbH,
                                                                             on the interpretation of Article 28 EC and Article 30 EC, the
                                                                             Court (Sixth Chamber), composed of: F. Macken, President of
In Case C-152/00, Commission of the European Communities                     the Chamber, C. Gulmann (Rapporteur), J.-P. Puissochet,
(Agents: L. Ström and J.-F. Pasquier) v French Republic                      V. Skouris and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed,
(Agents: K. Rispal-Bellanger and C. Vasak, and G. de Bergues):               Advocate General; L. Hewlett, Administrator, for the Registrar,
Application for a declaration that, by failing to transpose fully            has given a judgment on 10 September 2002, in which it has
and correctly Council Directive 86/609/EEC of 24 November                    ruled:
1986 on the approximation of laws, regulations and adminis-
trative provisions of the Member States regarding the protec-                1.    Article 28 EC precludes national legislation under which the
tion of animals used for experimental and other scientific                         withdrawal of the marketing authorisation of reference for a
purposes (OJ 1986 L 358, p. 1), and in particular Articles 4, 7,                   medicinal product on application by the holder thereof means
11, 12, 18 and 22 thereof, the French Republic has failed to                       that the parallel import licence for that product automatically
fulfil its obligations under the EC Treaty, the Court (Fifth                       ceases to be valid.
Chamber), composed of: P. Jann, President of the Chamber,
S. von Bahr and A. La Pergola (Rapporteur), Judges; L.A. Geel-               2.    The fact that the new version of the medicinal product has been
hoed, Advocate General; H.A. Rühl, Principal Administrator,                        placed on the market of the Member State of importation alone
for the Registrar, has given a judgment on 12 September 2002,                      or is also found on the market in other Member States does not
in which it:                                                                       alter the answer to the first question.


title: Case T-443/09: Order of the General Court of 28 October 2010 — Agriconsulting Europe v Commission

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/58

         Order of the General Court of 28 October 2010 — Agriconsulting Europe v Commission
   (Case T-443/09) (1)

   ()
   2010/C 346/113
   Language of the case: Italian
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 11, 16.1.2010.


title: Judgment of the Court (Second Chamber) of 14 September 2004 in Case C-276/02: Kingdom of Spain v Commission of the European Communities (State aid — Definition — Non-payment of taxes and social security contributions by an undertaking — Attitude taken by the national authorities following a declaration of suspension of payments)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/8

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 14 September 2004
   in Case C-276/02: Kingdom of Spain v Commission of the European Communities (1)

   (State aid - Definition - Non-payment of taxes and social security contributions by an undertaking - Attitude taken by the national authorities following a declaration of suspension of payments)
   (2004/C 300/16)
   Language of the case: Spanish
   In Case C-276/02: action for annulment under Article 230 EC, brought before the Court on 23 July 2002, between Kingdom of Spain (Agent: S. Ortiz Vaamonde) and Commission of the European Communities (Agents: V. Kreuschitz and J.L. Buendía Sierra) — the Court (Second Chamber), composed of: C.W.A. Timmermans, President of the Chamber, C. Gulmann, J.-P. Puissochet (Rapporteur), J.N. Cunha Rodrigues and F. Macken, Judges; M. Poiares Maduro, Advocate General; R. Grass, Registrar, has given a judgment on 14 September 2004, in which it:

               1.

               Annuls Commission Decision 2002/935/EC of 14 May 2002 on the State aid granted to Grupo de Empresas Álvarez.

               2.

               Orders the Commission of the European Communities to pay the costs.

      (1)  OJ C 219 of 14.9.2002.


title: Judgment of the Court of First Instance 20 March 2002 in Case T-31/99: ABB Asea Brown Boveri Ltd v Commission of the European Communities (Competition — Cartel — District heating pipes — Article 85 of the EC Treaty (now Article 81 EC) — Principle of sound administration — Fine — Guidelines on the method of setting fines — Legitimate expectations)

text:
15.6.2002                 EN                     Official Journal of the European Communities                                         C 144/37
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                 3.    Reduces the fine imposed on the applicant by Article 3(i) of the
                                                                                decision to EUR 300 000;
                                                                            4.    Dismisses the remainder of the application;
                             20 March 2002
                                                                            5.    Orders the applicant to bear its own costs and to pay one third
                                                                                of the costs incurred by the Commission;
in Case T-28/99: Sigma Tecnologie di rivestimento Srl v
        Commission of the European Communities (1)
                                                                            6.    Orders the Commission to bear two thirds of its own costs.
(Competition — Cartel — District heating pipes —                            (1) OJ C 100 of 10.4.1999.
Article 85 of the EC Treaty (now Article 81 EC) — Proof of
          participation in a global agreement — Fine)
                            (2002/C 144/78)
                     (Language of the case: Italian)
                                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                20 March 2002
In Case T-28/99, Sigma Tecnologie di rivestimento Srl, estab-               in Case T-31/99: ABB Asea Brown Boveri Ltd v Com-
lished in Lonato (Italy), represented by A. Pappalardo, M. Pap-                        mission of the European Communities (1)
palardo and M. Merola, lawyers, with an address for service in
Luxembourg, v Commission of the European Communities
(Agents: L. Pignataro and E. Gippini Fournier): Application for             (Competition — Cartel — District heating pipes —
primarily, annulment of Commission Decision 1999/60/EC of                   Article 85 of the EC Treaty (now Article 81 EC) — Principle
21 October 1998 relating to a proceeding under Article 85 of                of sound administration — Fine — Guidelines on the method
the EC Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe                             of setting fines — Legitimate expectations)
Cartel) (OJ 1999 L 24, p. 1) or, in the alternative, reduction of
the fine imposed on the applicant by that decision, the Court
of First Instance (Fourth Chamber), composed of: P. Mengozzi,                                         (2002/C 144/79)
President, V. Tiili and R.M. Moura Ramos, Judges; J. Palacio
González, Administrator, for the Registrar, has given a judg-
ment on 20 March 2002, in which it:                                                              (Language of the case: English)
1.    Annuls Article 1 of Commission Decision 1999/60/EC of
      21 October 1998 relating to a proceeding under Article 85 of          In Case T-31/99, ABB Asea Brown Boveri Ltd, established
      the EC Treaty (Case No IV/3.5/691/E.4: — Pre-Insulated                in Zurich (Switzerland), represented by A. Weitbrecht and
      Pipe Cartel) in so far as it finds that the applicant infringed       S. Völcker, lawyers, with an address for service in Luxembourg,
      Article 85(1) of the Treaty not only by participating in an           v Commission of the European Communities (Agents: P. Oliver
      infringement of that provision in the Italian market but also by      and E. Gippini Fournier): Application for, primarily, annulment
      participating in a cartel covering the whole of the common            of Article 3 of Commission Decision 1999/60/EC of 21 Octo-
      market;                                                               ber 1998 relating to a proceeding under Article 85 of the EC
                                                                            Treaty (Case No IV/35.691/E-4: — Pre-Insulated Pipe Cartel)
                                                                            (OJ 1999 L 24, p. 1) or, in the alternative, reduction of the fine
                                                                            imposed on the applicant by that decision, the Court of
2.    Annuls Article 3(i) of the decision in so far as it imposes on        First Instance (Fourth Chamber), composed of: P. Mengozzi,
      the applicant a fine calculated on the basis of its participation     President, V. Tiili and R. M. Moura Ramos, Judges; G. Herzig,
      in the cartel covering the whole of the common market and in          Administrator, for the Registrar, has given a judgment on
      the light of its intentional continuation of the infringement;        20 March 2002, in which it:
 ---pagebreak--- C 144/38                EN                     Official Journal of the European Communities                                       15.6.2002
1.    Orders that the fine imposed on the applicant by Article 3(a)       1.    Dismisses the application;
      of Commission Decision 1999/60/EC of 21 October 1998
      relating to a proceeding under Article 85 of the EC Treaty
      (Case No IV/35.691/E-4: — Pre-Insulated Pipe Cartel) be             2.    Orders the applicants to bear their own costs and pay those of
      reduced to EUR 65 000 000;                                                the Commission;
2.    Dismisses the remainder of the application;                         3.    Orders the intervener to bear its own costs.
3.    Orders the applicant to bear its own costs and to pay 90 % of
      the costs incurred by the Commission;
                                                                          (1) OJ C 246 of 28.8.1999.
4.    Orders the Commission to pay 10 % of its own costs.
(1) OJ C 121 of 1.5.1999.
                                                                              JUDGMENT OF THE COURT OF FIRST INSTANCE
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                                         20 March 2002
                           21 March 2002
                                                                          in Case T-175/99: UPS Europe SA v Commission of the
                                                                                European Communities (1)
in Case T-131/99: Michael Hamilton Shaw and Timothy
John Falla v Commission of the European Communities (1)
                                                                          (Competition — Abuse of a dominant position — Postal
                                                                          sector — Service in the general economic interest — Use of
(Competition — Beer supply agreements — Individual                        income deriving from a reserved market — Acquisition of
exemption — Article 85(3) of the EC Treaty (now                           joint control of an undertaking active in the non-reserved
                         Article 81(3) EC))                                               market — Statement of reasons)
                          (2002/C 144/80)                                                          (2002/C 144/81)
                    (Language of the case: English)                                          (Language of the case: English)
In Case T-131/99, Michael Hamilton Shaw, residing in Wix-
ford, Alcester, Warwickshire (United Kingdom), and Timothy                In Case T-175/99, UPS Europe SA, established in Brussels
John Falla, residing in Brighton (United Kingdom), represented            (Belgium), represented by T. R. Ottervanger and D. Arts,
by J. H. Maitland-Walker, Solicitor, with an address for service          lawyers, with an address for service in Luxembourg, v Com-
in Luxembourg, v Commission of the European Communities                   mission of the European Communities (Agents: B. Doherty
(Agents: P. Oliver, K. Wiedner and N. Khan), supported by                 and K. Wiedner), supported by Deutsche Post AG, established
Whitbread plc, established in London (United Kingdom),                    in Bonn (Germany), represented by J. Sedemund, lawyer, with
represented by N. Green QC and J. Flynn and M. Lowe,                      an address for service in Luxembourg: Application for the
Solicitors, with an address for service in Luxembourg: Appli-             annulment of Commission Decision SG (99) D/4155 of
cation for annulment of Commission Decision 1999/230/EC                   10 June 1999 rejecting the applicant’s complaint of 8 June
of 24 February 1999 relating to a proceeding pursuant to                  1998 to the extent to which it relates to Article 82 EC and to
Article 85 of the EC Treaty (Case No IV/35.079/F3 —                       the partial acquisition of DHL International Ltd by Deutsche
Whitbread) (OJ 1999 L 88, p. 26), the Court of First Instance             Post AG, the Court of First Instance (Fourth Chamber, Extended
(Third Chamber), composed of: J. Azizi, President, K. Lenaerts            Composition), composed of: P. Mengozzi, President, R. Garcı́a-
and M. Jaeger, Judges; J. Palacio González, Administrator, for           Valdecasas, V. Tiili, R. M. Moura Ramos and J. D. Cooke,
the Registrar, has given a judgment on 21 March 2002, in                  Judges; D. Christensen, Administrator, for the Registrar, has
which it:                                                                 given a judgment on 20 March 2002, in which it:


title: Case T-265/09: Judgment of the General Court of 26 September 2012 — Serrano Aranda v OHIM — Burg Groep (LE LANCIER) (Community trade mark — Opposition proceedings — Application for Community word mark LE LANCIER — Earlier national word and figurative marks EL LANCERO — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Opposition dismissed)

text:
               10.11.2012

               EN

               Official Journal of the European Union

               C 343/12

         Judgment of the General Court of 26 September 2012 — Serrano Aranda v OHIM — Burg Groep (LE LANCIER)
   (Case T-265/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community word mark LE LANCIER - Earlier national word and figurative marks EL LANCERO - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Opposition dismissed)
   2012/C 343/16
   Language of the case: Dutch

      Parties

      Applicant: Enrique Serrano Aranda (Murcia, Spain) (represented: initially by J. Calderón Chavero and T. Villate Consonni, then J. Calderón Chavero, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by W. Verberg and S. Bonne, then S. Bonne, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Burg Groep BV (Bergen, Netherlands)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 27 March 2009 (Case R 366/2008-1), relating to opposition proceedings between Mr Enrique Serrano Aranda and Burg Groep BV.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mr Enrique Serrano Aranda to pay the costs.

      (1)  OJ C 205, 29.8.2009.


title: Case T-115/15 R: Order of the General Court of 6 May 2015 — Deza v ECHA (Interim measures — REACH — Entry of the chemical substance di-(2-ethylhexyl)phthalate (DEHP) in the candidate list — Application for suspension of operation — No urgency)

text:
               29.6.2015

               EN

               Official Journal of the European Union

               C 213/36

         Order of the General Court of 6 May 2015 — Deza v ECHA
   (Case T-115/15 R)
   ((Interim measures - REACH - Entry of the chemical substance di-(2-ethylhexyl)phthalate (DEHP) in the candidate list - Application for suspension of operation - No urgency))
   (2015/C 213/61)
   Language of the case: Czech

      Parties

      Applicant: Deza, a.s. (Valašské Meziřiči, Czech Republic) (represented by: P. Dejl, lawyer)

      Defendant(s): ECHA (represented by: M. Heikkilä, W. Broere and T. Zbihlej, acting as Agents)

      Re:

   Application for the suspension of operation of Decision ED/108/2014 of 12 December 2014 of the Executive Director of the European Chemicals Agency updating, inter alia, the existing entry for the substance di-(2-ethylhexyl)phthalate (DEHP) in the candidate list for eventual inclusion in Annex XIV to Regulation (EC) No 1907/2006 of the European Parliament and of the Council of 18 December 2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH), establishing a European Chemicals Agency, amending Directive 1999/45/EC and repealing Council Regulation (EEC) No 793/93 and Commission Regulation (EC) No 1488/94 as well as Council Directive 76/769/EEC and Commission Directives 91/155/EEC, 93/67/EEC, 93/105/EC and 2000/21/EC (corrected version OJ 2007 L 136, p. 3), as amended.

      Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               The costs are reserved.


title: Case T-149/11: Order of the General Court of 12 October 2011 — GS v Parliament and Council (Action for annulment — Regulation (EU) No 1210/2010 — Right of the Member States to refuse the reimbursement of euro coins unfit for circulation — No direct concern — Inadmissible)

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/32

         Order of the General Court of 12 October 2011 — GS v Parliament and Council
   (Case T-149/11) (1)

   (Action for annulment - Regulation (EU) No 1210/2010 - Right of the Member States to refuse the reimbursement of euro coins unfit for circulation - No direct concern - Inadmissible)
   2011/C 347/55
   Language of the case: German

      Parties

      Applicant: GS Gesellschaft für Umwelt- und Energie-Serviceleistungen mbH (Eigeltingen, Germany) (represented by: J. Schmidt, lawyer)

      Defendants: European Parliament (represented by: U. Rësslein and A. Neergaard, Agents) and Council of the European Union (represented by: J. Monteiro and M. Simm, Agents)

      Re:

   Application for annulment of the second sentence of Article 8(2) of Regulation (EU) No 1210/2010 of the European Parliament and of the Council of 15 December 2010 concerning authentication of euro coins and handling of euro coins unfit for circulation (OJ 2010 L 339, p. 1)

      Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               GS Gesellschaft für Umwelt- und Energie-Serviceleistungen mbH shall bear its own costs and pay those incurred by the European Parliament and by the Council of the European Union.

               3.

               There is no need to adjudicate on the Kingdom of Spain’s application for leave to intervene.

      (1)  OJ C 145, 14.5.2011.


title: Case F-34/06: Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Michail v Commission (Civil service — Officials — Evaluation — Career evaluation report — 2004 evaluation period — Action for annulment — Action for damages)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/30

         Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Michail v Commission
   (Case F-34/06) (1)

   (Civil service - Officials - Evaluation - Career evaluation report - 2004 evaluation period - Action for annulment - Action for damages)
   (2008/C 8/53)
   Language of the case: French
   Parties

      Applicant: Christos Michail (Brussels, Belgium) (represented by: C. Meïdanis)

      Defendant: Commission of the European Communities (represented initially by C. Berardis-Kayser and K. Herrmann, Agents, and later by H. Tserepa-Lacombe, Agent, assisted by E. Bourtzalas, lawyer)
   Re:
   On the one hand, annulment of the applicant's career evaluation report for the 2004 evaluation period and, on the other, a claim for damages.
   Operative part of the judgment
   The Tribunal:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 154 of 1.7.2006, p. 24.


C 188/30               EN                       Official Journal of the European Communities                                      3.7.1999
Pleas in law and main arguments                                            Pleas in law and main arguments
The applicant claims that the Commission is under a duty to                The applicant contests, as he does in Cases T-7/98 (1) and
recognise his personal status under the partnership contract               T-208/98, (2) the defendant’s decision to accept his resignation
lawfully entered into by him in the Netherlands. To the extent             and to bring to an end the employment relationship.
that, under the law of the Netherlands, the institution of
‘registered partnership’ gives rise, for him and his partner, to
rights and obligations which are broadly similar to those                  In support of his application, the applicant claims:
arising under a marriage contract, he submits that his rights
under the Staff Regulations and those of his partner should be             — his resignation is null and void on grounds of mental
determined so as to accord with those conferred on his married                 incapacity. In his view, the resignation was tendered when
colleagues under the Community rules.                                          he was in a state of depression, brought on by, among
                                                                               other factors, the psychological pressures he was under;
In the applicant’s submission, the Commission’s refusal to
recognise his status as a registered partner:                              — that, when an employee who tenders his resignation offers
                                                                               to continue working also during the period of notice, the
— infringes the principle enshrined in Article 4 of the EC                     employment relationship continues to produce its full legal
     Treaty that the institutions are to exercise the powers                   and economic effects until the end of such period.
     conferred on them;
— infringes the principle of the uniform nature of the                     On the latter point, the applicant explains that he was ill from
     personal status of Community nationals;                               28 September 1998 to 6 December 1998, from 8 January
                                                                           1999 to 7 February 1999 and since 15 February 1999, and
— infringes the principles of equal treatment and freedom of               that the period of notice ran from 7 December 1998 (when he
     movement for workers;                                                 returned to work after the first period of sick leave), and that,
                                                                           of the three months to which he was entitled, he had worked
— infringes the right to respect for private life and thus                 for only 38 days, including part of ordinary annual leave.
     Article 8 of the European Convention for the Protection of            Therefore, the applicant was entitled to work for a further
     Human Rights and Fundamental Freedoms; and                            63 days. Accordingly, the letter of 25 February 1999 and the
                                                                           subsequent conduct of the EIB could only be described as
— infringes Articles 27, 62, 71, 72 et seq. and 77 et seq. of              unfair dismissal.
     the Staff Regulations.
                                                                           (1) De Nicola v EIB (OJ 1998 C 94, p. 30).
                                                                           (2) De Nicola v EIB (OJ 1999 C 71, p. 31).
Action brought on 2 May 1999 by Carlo De Nicola against
                   European Investment Bank
                         (Case T-109/99)
                         (1999/C 188/68)                                           Removal from the register of Case T-46/96 (1)
                                                                                (1999/C 188/69)
                    (Language of the case: Italian)
An action against the European Investment Bank was brought                                    (Language of the case: English)
before the Court of First Instance of the European Communities
on 2 May 1999 by Carlo De Nicola, represented by Luigi Isola
of the Rome Bar, with an address for service in Luxembourg at              By order of 8 February 1999 the President of the Fifth
the address of Cesare Berloni, 59 Route de Longwy.                         Chamber, Extended composition, of the Court of First Instance
                                                                           of the European Communities has ordered the removal from
The applicant claims that the Court should:                                the register of Case T-46/96 Whirlpool Sweden AB and
                                                                           Whirlpool SMC Microwave Products Development Ltd v
— annul the letter of 25 February 1999 whereby the EIB                     Council of the European Union.
     dismissed the applicant, together with all connected,
     preceding and subsequent acts;
— order the defendant EIB to pay the costs.                                (1) OJ No C 180 of 22.6.1996.


title: Case C-399/14: Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18 August 2014  — Grüne Liga Sachsen e. V. and Others v Freistaat Sachsen

text:
               15.12.2014

               EN

               Official Journal of the European Union

               C 448/2

         Request for a preliminary ruling from the Bundesverwaltungsgericht (Germany) lodged on 18 August 2014 — Grüne Liga Sachsen e. V. and Others v Freistaat Sachsen
   (Case C-399/14)
   (2014/C 448/02)
   Language of the case: German

      Referring court

   Bundesverwaltungsgericht

      Parties to the main proceedings

      Applicant: Grüne Liga Sachsen e. V. and Others

      Defendant: Freistaat Sachsen

      Intervener: Landeshauptstadt Dresden

      Other party: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht

      Questions referred

               1.

               Is Article 6(2) of Council Directive 92/43/EEC (1) of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (‘the Habitats Directive’) to be interpreted as meaning that a construction project for a bridge which does not directly serve the management of the site and which was authorised before that site was included in the list of sites of Community importance must be the subject of an impact assessment prior to its implementation if the site was included in that list after authorisation was granted but before the project was implemented and only a risk assessment/preliminary assessment was undertaken before the authorisation was granted?

               2.

               If question 1 is answered in the affirmative:
               When undertaking a subsequent review, must the national authority observe the provisions of Article 6(3) and (4) of the Habitats Directive where it wanted to use those provisions as a precautionary basis for the risk assessment/preliminary assessment preceding the grant of the authorisation?

               3.

               If question 1 is answered in the affirmative and question 2 in the negative:
               What requirements should be applied under Article 6(2) of the Habitats Directive to a subsequent review of an authorisation granted for a project and to what date should the review relate?

               4.

               In the context of supplementary proceedings seeking to remedy an error found in a subsequent review under Article 6(2) of the Habitats Directive or in an impact assessment under Article 6(3) of the Habitats Directive, is account to be taken, by appropriate amendments to the review requirements, of the fact that the structure was permitted to be constructed and put into service because the planning decision was immediately enforceable and proceedings for interim measures had been dismissed with final effect? In any event, does that apply to an alternative subsequent review which is necessary in the context of a decision under Article 6(4) of the Habitats Directive?

      (1)  OJ 1992 L 206, p. 7.


title: Case C-56/10 P: Appeal brought on 2 February 2010 by Agencja Wydawnicza Technopol sp. z o.o. against the judgment delivered on 19 November 2009 in Joined Cases T-425/07 and T-426/07 Agencja Wydawnicza Technopol v OHIM (100)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/19

         Appeal brought on 2 February 2010 by Agencja Wydawnicza Technopol sp. z o.o. against the judgment delivered on 19 November 2009 in Joined Cases T-425/07 and T-426/07 Agencja Wydawnicza Technopol v OHIM (100)
   (Case C-56/10 P)
   2010/C 113/29
   Language of the case: Polish

      Parties

      Appellant: Agencja Wydawnicza Technopol sp. z o.o. (represented by: D. Rzążewska, lawyer)

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

      Form of order sought

               —

               set aside the judgment of the Court of First Instance of 19 November 2009 in Joined Cases T-425/07 and T-426/07;

               —

               refer the case back to the General Court;

               —

               order OHIM to pay the costs of the proceedings before the Court of Justice.

      Pleas in law and main arguments

   The appellant pleads that the Court of First Instance infringed Article 38(2) of the Community trade mark regulation (1) by applying incorrect legal criteria when finding that the Board of Appeal was justified in requesting that a statement be submitted disclaiming exclusive rights to the figures 100 and 300.
   The appellant pleads that the Court of First Instance infringed Article 7(1)(c) of the Community trade mark regulation by applying incorrect legal criteria when finding that the elements in respect of which a statement disclaiming exclusive rights was requested to be submitted are descriptive.
   The appellant further pleads that the Court of First Instance infringed Article 7(1)(c), Article 38(2) or Article 76 of the Community trade mark regulation, or all of those provisions, by not taking due account of OHIM’s practice relating to the registration of signs consisting of figures or indicating the content of a publication.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1), replaced by Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (codified version) (OJ 2009 L 78, p. 1).


title: Case T-60/07: Judgment of the Court of First Instance of 12 November 2008 — Spain v Commission (EAGGF — Guarantee Section — Expenditure excluded from Community financing — Fruit and vegetable sector — Environmental protection — Administrative procedure)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/25

         Judgment of the Court of First Instance of 12 November 2008 — Spain v Commission
   (Case T-60/07) (1)

   (EAGGF - Guarantee Section - Expenditure excluded from Community financing - Fruit and vegetable sector - Environmental protection - Administrative procedure)
   (2009/C 6/50)
   Language of the case: Spanish
   Parties

      Applicant: Kingdom of Spain (represented by: M. Muñoz Pérez, lawyer)

      Defendant: Commission of the European Communities (represented by: F. Jimeno Fernández, Agent)
   Re:
   Application for partial annulment of Commission Decision 2006/932/EC of 14 December 2006 excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural and Guarantee Fund (EAGGF) (OJ 2006 L 355, p. 96), in so far as it excludes certain expenditure incurred by the Kingdom of Spain in the fruit and vegetable sector
   Operative part of the judgment
   The Court:

               1.

               Dismisses the application;

               2.

               orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 95, 28.4.2007.


title: Case T-260/00: Order of the General Court of 12 December 2012 — Cooperativa San Marco fra Lavoratori della Piccola Pesca and Others v Commission (Action for annulment — State aid — Reductions in social security contributions for undertakings in Venice and Chioggia — Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

text:
               9.2.2013

               EN

               Official Journal of the European Union

               C 38/22

         Order of the General Court of 12 December 2012 — Cooperativa San Marco fra Lavoratori della Piccola Pesca and Others v Commission
   (Case T-260/00) (1)

   (Action for annulment - State aid - Reductions in social security contributions for undertakings in Venice and Chioggia - Decision declaring the aid scheme incompatible with the common market and imposing the recovery of the aid paid - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)
   2013/C 38/39
   Language of the case: Italian

      Parties

      Applicants: Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl (Venice, Italy); Cooperativa Coopesca — Organizzazione tra Produttori e Lavoratori della Pesca — Chioggia Soc. coop. rl (Chioggia, Italy); Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl (Venice); Cooperativa Pescatori di San Pietro in Volta Soc. coop. rl (Venice); Murazzo — Piccola Società Cooperativa rl (Chioggia); RAM — Società Cooperativa fra Lavoratori della Pesca, Raccoglitori ed Allevatori di Molluschi (Chioggia); Confcooperative — Unione Provinciale di Venezia (Mestre, Italy); and Comitato ‘Venezia Vuole Vivere’ (Marghera, Italy) (represented by: A. Vianello, lawyer)

      Defendant: European Commission (represented by: V. Di Bucci, Agent, and by A. Dal Ferro, lawyer)

      Intervening party in support of the applicants: The Italian Republic (represented: initially by U. Leanza, then by I. Braguglia, then by R. Adam, and finally by I. Bruni, Agents, and by G. Aiello and P. Gentili, avvocati dello Stato)

      Re:

   Application for annulment of Commission Decision 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995 (OJ 2000, L 150, p. 50).

      Operative part of the order

               1.

               The objection of inadmissibility raised by the European Commission is joined to the substance of the case.

               2.

               The action is dismissed as being in part manifestly inadmissible and in part manifestly lacking any foundation in law.

               3.

               Cooperativa San Marco fra Lavoratori della Piccola Pesca — Burano Soc. coop. rl, Cooperativa Coopesca — Organizzazione tra Produttori e Lavoratori della Pesca — Chioggia Soc. coop. rl, Cooperativa tra i Lavoratori della Piccola Pesca di Pellestrina Soc. coop. rl, Cooperativa Pescatori di San Pietro in Volta Soc. coop. rl, Murazzo — Piccola Società Cooperativa rl, RAM — Società Cooperativa fra Lavoratori della Pesca, Raccoglitori ed Allevatori di Molluschi, Confcooperative — Unione Provinciale di Venezia et Comitato ‘Venezia Vuole Vivere’ are ordered to bear their own costs and to pay those incurred by the Commission.

               4.

               The Italian Republic is ordered to bear its own costs.

      (1)  OJ C 355, 9.12.2000.


title: Case C-130/99: Action brought on 15 April 1999 by the Kingdom of Spain against the Commission of the European Communities

text:
17.7.1999             EN                    Official Journal of the European Communities                                        C 204/23
Pleas in law and main arguments                                        The applicant claims that the Court of Justice should:
                                                                       — annul Commission Decisions 99/186/EC (1) and
Breach of Article 10 of Directive 91/676                                   99/187/EC (2) of 3 February 1999 as regards the financial
                                                                           adjustments imposed on the Kingdom of Spain, and
The Italian Republic has not fulfilled the obligation specifically
provided for by Article 10 of Directive 91/676 regarding the           — order the defendant to pay the costs.
preparation and submission to the Commission of a report in
respect of the period between 20 December 1991 and 20
December 1995, that is to say the four years following
notification of the directive, containing the information out-         Contentions and principal arguments adduced in support
lined in Annex V to the directive.
                                                                       The Kingdom of Spain contests:
Breach of Article 5 of Directive 91/676
                                                                       — the Commission decision of 3 February 1999 excluding
Article 5(1) requires Member States to establish action pro-               from Community financing certain expenditure incurred
grammes in respect of designated vulnerable zones within a                 by the Member States (199/186/EC), and
two-year period following the initial designation of such zones
or within one year of each additional designation following            — the Commission decision of 3 February 1999 on the
the four-yearly review of the situation provided for by                    clearance of the accounts presented by the Member States
Article 3(4).                                                              in respect of the expenditure for 1995 of the guarantee
                                                                           section of the European Agricultural Guidance and Guaran-
The Italian authorities have not yet drawn up one or more                  tee Fund (1999/187/EC),
action programme which are complete, consistent, coherent
and directed towards the attainment of the specific objectives         as regards the financial adjustments imposed in the following
of the directive within a four-year period, in breach of the           sectors:
express provisions of Article 5.
Breach of Article 6 of Directive 91/676                                (a) Arable crops
The Commission considers that the Italian Republic has also            — PTE 1 471 398 749 corresponding to 5 % of the expendi-
breached the requirement laid down by Article 6 of the                     ture incurred by the Autonomous Community of Aragon
directive in not monitoring fully and correctly the nitrate                in relation to certain matters relating to on-the-spot checks
concentration in freshwaters for the purpose of identifying                in respect of applications for area-linked aid managed by
contaminated waters with a view to designating vulnerable                  the said Autonomous Community.
zones.
                                                                           The minimum percentage to be achieved for checks,
                                                                           namely checks corresponding to 5 % of the applications
(1) OJ 1991 L 375, 31.12.1991, p. 1.                                       submitted, must be achieved at Member State level, not at
                                                                           provincial level and not at Autonomous Community level,
                                                                           as provided in Article 6(3) of Commission Regulation
                                                                           (EEC) No 3887/92 (3). The Autonomous Community of
                                                                           Aragon carried out adequate checks in accordance with
                                                                           the Community legislation and both the percentage of
                                                                           controls undertaken and the areas checked exceed Com-
                                                                           munity requirements. In fact, a total of 3 024 files (7,4 %
                                                                           of all applications) were checked using a criterion similar
                                                                           to that of tele-detection (at least 80 % of the cultivated area
Action brought on 15 April 1999 by the Kingdom of Spain                    included in the control zone). In terms of area checked, the
against the Commission of the European Communities                         total covered was about 11 500 hectares (8,7 % of the
                                                                           total area for which applications were submitted).
                        (Case C-130/99)
                                                                           The cases of alleged laxity found during in situ inspections
                                                                           carried out by EAGGF inspectors must be assessed in their
                        (1999/C 204/45)                                    proper perspective.
An action against the Commission of the European Communi-              — PTE 215 011 390: the financial adjustment imposed by
ties was brought before the Court of Justice on 15 April 1999              the Commission is based on the fact that Spain did not
by the Kingdom of Spain, represented by Mónica López-Monis               take the necessary steps, either in administrative checks or
Gallego, Abogado del Estado in the State Office for Proceedings            on-the-spot checks, to verify the plausibility of the yield
before the Court of Justice, with an address for service in                forecasts declared and the accuracy of the actual yields
Luxembourg at the Spanish Embassy, 4-6 Boulevard E. Servais.               obtained.
 ---pagebreak--- C 204/24               EN                   Official Journal of the European Communities                                       17.7.1999
    However, Commission Regulation No 334/93 (4) contains              — PTE 5 754 750 215: corresponding to 5 % of the expendi-
    no provision whatsoever imposing a clear, precise and                  ture declared in 1996 for the marketing years up to
    unconditional obligation on the Member States to deter-                1994/1995 in respect of production aid for olive oil and
    mine reference yields for non-food production.                         costs of setting up the olive oil register, as for previous
                                                                           years.
(b) Beef and veal premiums                                                 In both cases, the financial adjustment is based on alleged
                                                                           deficiencies in control procedures and, specifically, delay
                                                                           in action taken to set up the olive oil register and the
— PTE 1 393 983 000 corresponding to 1994 and 1995, as                     central data base.
    a result of a flat-rate adjustment of 2 %, 5 % and 10 % of
    the premiums paid in respect of animals of the bovine
    species, on the basis of the percentage of checks achieved             Spain contests each of the comments made by the EAGGF
    in the various provinces.                                              and cannot accept the assertion that the system for
                                                                           the management of production aid in Spain displays
                                                                           deficiencies which undermine its general effectiveness
                                                                           or key components of the control system. Moreover,
(c) Milk and dairy products                                                monitoring is not an end in itself but a means of avoiding
                                                                           damage. Only if damage is sustained is it logical to
                                                                           withhold from Member States the sums which the latter
— PTE 4 484 785 615 (PTE 3 129 240 958 for an excedence
                                                                           has paid out in advance. Nevertheless, the figures obtained
    of 55 707 tonnes of milk, which amount was increased by                following the compilation by the Olive Oil Agency of
    1 355 544 657 PTE in respect of default interest).                     the corresponding data from the olive oil undertakings
    This is a financial adjustment for 1994, but the amount                operating in the marketing year concerned and of which
    was separated out from the 1994 clearance of accounts                  verification in situ was possible by the joint mission to
    and included in the figures for 1995.                                  Spain carried out by Commission Directorates-General VI
                                                                           and XX from 2 to 4 June 1997 clearly establish that the
    Article 3(4) of Regulation (EC) No 536/93 (5) laying down              aid paid during the marketing year falls short of the total
    provisions on the application of the additional levy in the            oil and spirits produced, which rules out any fraud in that
    milk and milk products sectors gives a direct instruction              sector, eliminates any possibility of risk for the Community
    to the purchaser, and not the Member State, to pay the                 budget and removes the basis for the financial adjustment
    amount due in respect of the levy and the accrued interest.            imposed.
    Therefore, if the State acts with due diligence by seeking
    from the purchaser, in the appropriate manner, through
    both administrative and domestic judicial channels, the
    undertakings required by that provision, the Commission
    cannot ask it to make up for defective fulfilment of
    financial obligations by the purchaser, by virtue of the           (e) Wine
    provisions of Article 8 of Regulation (EEC) No 729/70 (6).
    The Member State’s obligation towards the Community
    consists in diligently requiring the debtors to pay such           — PTE 424 652 236 (adjustment of 2 % of the expenditure
    levies, in accordance with domestic law, and to pay the                declared by Spain in 1995 in respect of definitive abandon-
    same to the Commission. The additional levy system does                ment of wine-growing areas in respect of which no
    not impose on Member States the obligation to pay specific             regularisation measures have been taken) and
    sums, but merely to pay over the amount collected, and
    also any amounts which, through negligence, have not
    been collected. The Commission declines to apply
    Article 8(1), third subparagraph, and (2) of Council Regu-         — PTE 305 986 443 (adjustment corresponding to a regular-
    lation No 729/70, asserting that the sole basis of the                 ised and productive area of 4 338 hectares during the
    Member State’s obligation is Article 15(4) of Regulation               three-year period in which marketing is prohibited).
    (EEC) No 1546/88 (7). On the basis of that assertion, it also
    contends that the rule laid down in the judgment of the                The Commission had known about the action taken by
    Court of Justice of 21 September 1983 in Joined Cases                  Spain in an effort to remedy the irregular situation
    205 to 215/82 Deutsche Milchkontor and Others v                        regarding wine-growing areas without planting rights by
    Germany [1983] ECR 2633 is not applicable.                             transferring rights from abandoned plantations without a
                                                                           grant since 1992. In addition, the proposed reform of the
                                                                           common market organisation in this sector contemplates
                                                                           a regularisation process which is merely a transposition of
(d) Olive oil                                                              the scheme applied in Spain. The adjustment made in
                                                                           respect of wine in the clearance of accounts for 1995 is
— PTE 4 317 179 696 for 1994 and 1995: reflecting a                        not based on any aid granted or embarked upon
    flat-rate adjustment of 5 % of the expenditure for both                improperly but on the Commission’s view that the process
    years in relation to the 1993-94 marketing year and                    for regularisation of the situation of wine-growing areas
    subsequent year and 10 % of the expenditure for 1992-93                without planting rights which is being applied in certain
    and previous years, and the same percentage of the                     Spanish regions did not conform with Community legis-
    expenditure incurred in respect of setting up of the olive             lation. Such action by Spain, even if not in fact consonant
    oil register, and                                                      with Community legislation, bears no relation whatsoever
 ---pagebreak--- 17.7.1999              EN                     Official Journal of the European Communities                                          C 204/25
     to any aid granted, for which reason the Commission has             (4) Commission Regulation (EEC) No 334/93 of 15 February 1993
     no legal basis for taking action, having relied exclusively             laying down detailed implementing rules for the use of land set
     on grounds of expediency and immediacy, in the context                  aside for the provision of materials for the manufacture within
     of clearance of the accounts of the EAGGF Guarantee                     the Community of products not primarily intended for human or
                                                                             animal consumption (OJ L 38 of 16.2.1993, p. 12).
     Section, applying a financial adjustment to the expenditure         (5) Commission Regulation (EEC) No 536/93 of 9 March 1993 laying
     incurred by Spain in the sector in question. The fact is that,          down detailed rules on the application of the additional levy on
     where necessary, it is open to the Commission to challenge              milk and milk products (OJ L 57 of 10.3.1993, p. 12).
     action taken by a Member State by means of an action                (6) Council Regulation (EEC) No 729/70 of 21 April 1970 on the
     before the Court of Justice for failure to fulfil obligations.          financing of the Common Agricultural Policy (OJ, English Special
                                                                             Edition 1970 (1), p. 218).
                                                                         (7) Commission Regulation (EEC) No 1546/88 of 3 June 1988 laying
                                                                             down detailed rules for the application of the additional levy
(f) Flax                                                                     referred to in Article 5c of Regulation (EEC) No 804/68 (OJ L 139
                                                                             of 4.6.1988, p. 12).
— PTE 40 359 739 (aid for fibre flax): for the marketing year            (8) Commission Regulation (EEC) No 1164/89 of 28 April 1989
                                                                             laying down detailed rules concerning the aid for fibre flax and
     to which the adjustment was applied, the Community rules                hemp (OJ L 121, 29.4.1989, p. 4).
     did not expressly mention minimum quantifies of seed,
     but merely referred to the carrying out of normal culti-
     vation work (Article 4(a) of Commission Regulation
     1164/89) (8).
(g) Failure to observe time-limits for payment
— PTE 3 362 203 596 (payments made outside the time-                     Action brought on 16 April 1999 by the Commission
     limits laid clown by the Community legislation): the                of the European Communities against the Portuguese
     Kingdom of Spain considers that, since the requisite                                               Republic
     procedures for accepting or rejecting expenditure have not
     been completed, the normal procedure is to separate the                                        (Case C-131/99)
     sums in question and exclude them from the clearance of
     accounts until a later date.
                                                                                (1999/C 204/46)
     In general, breach of the following principles of Com-
     munity law:                                                         An action against the Portuguese Republic was brought before
                                                                         the Court of Justice on 16 April 1999 by the Commission of
     — the principle of a right to the hearing: this principle           the European Communities, represented by Francisco de Sousa
         has been infringed in relation to all the adjustments           Fialho, of its Legal Service, acting as Agent, with an address for
         contested in the application. It was formally observed,         service in Luxembourg at the office of Carlos Gómez de la
         but in practice the Commission’s replies are confined           Cruz, also of its Legal Service, Wagner Centre, Kirchberg.
         to repetition of the same points, without contradiction
         or rebuttal of the arguments put forward;
                                                                         The applicant claims that the Court of Justice should:
     — lack of evidence of the wrongful action imputed to the
         Member State: the Commission based the adjustments              — Declare that, by not bringing into force or informing the
         either on indicia or suspicions, or on data which had                Commission of all the laws, regulations and administrative
         been rebutted or corrected by the Spanish authorities;               provisions necessary to comply fully with Article 3(1)
                                                                              and Annex I, points 1.3 and 3.2, of Council Directive
     — the principle of sound administration;                                 84/360/EEC (1) of 28 June 1984 on the combating of air
                                                                              pollution from industrial plants, the Portuguese Republic
     — the principle of appropriateness of the penalty: this                  has failed to fulfil its obligations under Article 16 of that
         principle was infringed in particular with regard to                 directive and the third paragraph of Article 189 of the EC
         olive oil production aid. It is not permissible to refuse            Treaty;
         to refund the aid paid in advance merely because
         certain data bases have not been finalised; such action         — Order the Portuguese Republic to pay the costs.
         can only be based on a duly substantiated lack of
         checking which has been detrimental to the Com-
         munity budget;                                                  Contentions and principal arguments adduced in support
     — in the alternative, breach of the principle of pro-
         portionality.                                                   Under the third paragraph of Article 189 (now, after amend-
                                                                         ment, Article 249) of the Treaty, a directive is binding on the
                                                                         Member State to which it is addressed as regards the result to
(1) OJ L 061 of 10 March 1999, p. 34.                                    be achieved. Although the prescribed period expired on 30
(2) OJ L 061 of 10 March 1999, p. 37.                                    June 1987 (see Article 16 of the directive and Article 392 of
(3) Of 23 December 1992 laying down detailed rules for applying          the Accession Treaty), the Portuguese Republic has not yet
    the integrated administration and control system for certain         adopted all the provisions needed to ensure that its domestic
    Community aid schemes (OJ L 391 of 31.12.1992, p. 36).               law fully complies with the directive, since:


title: Case T-641/13: Action brought on 3 December 2013 — Gemeente Bergen op Zoom v Commission

text:
               1.2.2014

               EN

               Official Journal of the European Union

               C 31/18

         Action brought on 3 December 2013 — Gemeente Bergen op Zoom v Commission
   (Case T-641/13)
   2014/C 31/30
   Language of the case: Dutch

      Parties

      Applicant: Gemeente Bergen op Zoom (Bergen op Zoom, Netherlands) (represented by: T. Hovius and R. Pasma, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The applicant contests the Commission’s decision of 2 October 2013, (1) whereby the Commission found that the purchase by the Bergen op Zoom municipality of the industrial premises of Koninklijke Nedalco BV and Nedalco International BV did not constitute State aid within the meaning of Article 107(1) TFEU.
   In support of its action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging breach of Article 107 TFEU and/or Article 108 TFEU in so far as the Commission failed to apply the market economy investor principle or, at least, applied that principle incorrectly, did not rely on the proper facts in that regard and/or did not provide sufficient reasons for the application of that principle.

               2.

               Second plea in law, alleging breach of Article 107 TFEU and/or Article 108 TFEU in so far as the Commission incorrectly assessed the facts and/or the law and committed a manifest error of assessment in concluding that Nedalco had not been granted a (selective) advantage that it could not have acquired in the ordinary course of business.

               3.

               Third plea in law, alleging infringement of the principles relating to the duty of care and the duty to state reasons in so far as the Commission erred in failing to investigate the facts put forward by the municipality and/or to provide sound reasons for the decision.

      (1)  OJ 2013 C 335, p. 1.