title: Case C-92/10 P: Appeal brought on 17 February 2010 by Media-Saturn-Holding GmbH against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2009 in Case T-476/08 Media-Saturn-Holding GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/27

         Appeal brought on 17 February 2010 by Media-Saturn-Holding GmbH against the judgment of the General Court (Fourth Chamber) delivered on 15 December 2009 in Case T-476/08 Media-Saturn-Holding GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-92/10 P)
   2010/C 113/42
   Language of the case: German

      Parties

      Appellant: Media-Saturn-Holding GmbH (represented by C.-R. Haarmann and E. Warnke, lawyers)

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

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the judgment of the General Court of the European Union of 15 December 2009 in Case T-476/08;

               —

               annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 28 August 2008 in Case R 591/2008-4;

               —

               order the appellant to pay the costs of the proceedings before the Board of Appeal, the General Court of the European Union and the Court of Justice.

      Pleas in law and main arguments

   The present appeal is brought against the judgment of the General Court which dismissed the action brought by the appellant for annulment of the Decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market of 28 August 2008 rejecting its application for registration of the figurative mark ‘BEST BUY’. The appellant claims that the General Court erred in law and was incorrect in its interpretation of the absolute ground for refusal of registration in respect of trade marks which are devoid of any distinctive character laid down in Article 7(1)(b) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark. The appeal consists of three parts.
   First, the appellant claims that the General Court unlawfully inferred absence of distinctiveness from the assessment of a mark other than the one actually applied for. Its assessment of distinctiveness was carried out in relation to a sign which contains the correctly written word element ‘BEST BUY’ and which was the subject of another set of proceedings before that court. In contrast to that other sign, in the mark applied for by the appellant the arrangement of the prominent letter ‘B’, which forms the first letter of both the words ‘BEST’ and ‘BUY’, means that an alleged word element ‘BEST BUY’ is formed only after a pause for thought. Since the additional distinctiveness of that mark stemming from the unusual and incorrect manner in which it is written has a sufficient minimum of distinctiveness, the General Court ought not to have relied on an earlier decision relating to a sign in which that specific feature was lacking.
   Second, the General Court failed to have regard to the principle that the question whether or not a complex mark has distinctive character must depend on an assessment of the mark as a whole. No such overall assessment was carried out in the judgment under appeal. The General Court assessed whether each individual element was capable on its own of conferring distinctiveness on that sign, a question which was then automatically answered in the negative if in that court’s view the element was not distinctive in itself. An overall assessment of the mark, from which it could not be excluded that the sum of elements ineligible on their own for protection would result in a mark eligible for protection when viewed as a whole, was not carried out.
   Third, the Court used an excessively strict criterion in its assessment of distinctiveness. It held that it was sufficient that the mark be perceived ‘principally’ as an advertising slogan in order for the refusal of registration laid down in Article 7(1)(b) of Regulation No 40/94 to apply. However, that approach constitutes a failure to have regard to the legal principles of Article 7(1)(b) of Regulation No 40/94, as applied in concrete terms by the Court of Justice. The laudatory connotation of a word mark does not mean that it cannot be appropriate for the purposes of guaranteeing to consumers the origin of the goods or services which it covers. It is entirely possible that such a mark can be perceived by the relevant public both as an advertising slogan and as an indication of commercial origin. In that regard, the General Court ought at least to have provided reasons why this was not however the case in respect of the mark applied for.


title: Case C-236/99: Action brought on 23 June 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
C 246/16              EN                     Official Journal of the European Communities                                      28.8.1999
    ii) does Article 59, in any and if so what circumstances,           Action brought on 23 June 1999 by the Commission
        permit the refusal of an application under Article 45           of the European Communities against the Kingdom of
        of the Agreement made by someone whose initial                                                 Belgium
        entry into that Member State was otherwise unlawful?
                                                                                (Case C-236/99)
4. If the answer to the second question is ‘yes’, does Article                                    (1999/C 246/33)
    45 and/or Article 59 of the Agreement permit the appli-
    cation of a provision of national law under which the
    competent national authorities may require a Bulgarian              An action against the Kingdom of Belgium was brought before
    national seeking to exercise rights as a self-employed              the Court of Justice of the European Communities on 23 June
    person to demonstrate                                               1999 by the Commission of the European Communities,
                                                                        represented by Gregorio Valero Jordana, of its Legal Service,
                                                                        and Olivier Couvert-Castéra, a national civil servant on
                                                                        secondment to that Service, acting as Agents, with an address
    a) that this share of the profits of the business (disre-           for service in Luxembourg at the office of Carlos Gómez de la
        garding any alternative source of support) will be              Cruz, Wagner Centre, Kirchberg.
        sufficient to maintain and accommodate himself and
        any dependants without recourse to employment (as               The Commission of the European Communities claims that
        opposed to self-employment) or to public funds, and             the Court should:
                                                                        — declare that, by communicating to it a programme for the
    b) that until his business provides him with such an                     implementation of Council Directive 91/271/EEC of 21
        income (disregarding any alternative source of support)              May 1991 concerning urban waste-water treatment (1)
        he will have sufficient additional funds to maintain and             which is not in conformity with that directive as regards
        accommodate himself and any dependants without                       the Brussels-Capital Region, the Kingdom of Belgium has
        recourse to employment (as opposed to self-                          failed to fulfil its obligations under that directive and, in
        employment) or to public funds?                                      particular, under Article 17 thereof;
                                                                        — order the Kingdom of Belgium to pay the costs.
5. If the answer to the preceding questions is that a Bulgarian
    national who is an illegal entrant may rely upon directly           Pleas in law and main arguments
    effective rights of establishment under the Agreement,
    then
                                                                        The Belgian authorities were required, in accordance with
                                                                        Article 3 of the directive, to ensure that the Brussels-Capital
                                                                        Region was provided with a system for the collection of urban
    a) what factors, under such an Agreement, should the                waste water by 31 December 1998 at the latest. In addition,
        national court take into account in determining                 the Belgian authorities were required, whether as regards
        whether any breach by the competent authorities of              fulfilment of the obligations imposed in Article 5(2) of the
        that person’s directly effective rights was sufficiently        directive or as regards eligibility under Article 5(4) thereof, to
        serious to give rise to a right to reparation in damages        ensure that, before being discharged into the River Senne,
        against the Member State concerned; and, in particular,         the water in question underwent secondary treatment and
                                                                        additional treatment in respect of its nitrogen and phosphorus
                                                                        content. That treatment system was required to be set up by
                                                                        31 December 1998 at the latest. The Belgian authorities
    b) in the state of Community law at the relevant time (i.e.,        propose to discharge the above-mentioned obligations by
        when the decisions of August/September 1996 to                  constructing two waste water treatment plants in the Brussels-
        refuse the Applicant’s application for leave to remain          Capital Region, located to the north and to the south
        as a self-employed person, and/or the decision to               of Brussels respectively. However, it is apparent from the
        detain the Applicant, were taken), did the approach             implementation programme sent by the Kingdom of Belgium
        adopted by the competent national authorities consti-           to the Commission on 3 July 1996 that the plant to the north
        tute a ‘grave and manifest disregard’ of a superior rule        of the city will not be operational by the date provided for by
        of law?                                                         the directive, namely 31 December 1998 and that it will not
                                                                        become operational until five years later, that is to say, in
                                                                        2003. As to the plant to the south of Brussels, this should be
                                                                        completed sooner, but not before a date after that laid down
                                                                        by the directive. Moreover, several waste water collecting
(1) OJ 1994 L 358, p. 1.                                                systems to the north and south will not be operational by the
                                                                        date prescribed.
                                                                        (1) OJ L 135 of 30.5.1991, p. 40.


title: Case C-362/07: Reference for a preliminary ruling from the Tribunal d'instance du VII ème arrondissement de Paris (France), lodged on 2 August 2007 — Kip Europe SA, KIP UK Ltd, Caretrex Logistiek BV, Utax GmbH v Administration des douanes — Direction générale des douanes et droits indirects

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/21

         Reference for a preliminary ruling from the Tribunal d'instance du VIIème arrondissement de Paris (France), lodged on 2 August 2007 — Kip Europe SA, KIP UK Ltd, Caretrex Logistiek BV, Utax GmbH v Administration des douanes — Direction générale des douanes et droits indirects
   (Case C-362/07)
   (2007/C 269/42)
   Language of the case: French
   Referring court
   Tribunal d'instance du VIIème arrondissement de Paris
   Parties to the main proceedings

      Applicants: Kip Europe SA, Kip UK Ltd, Caretrex Logistiek BV, Utax GmbH

      Defendant: Administration des douanes — Direction générale des douanes et droits indirects
   Questions referred

               1.

               Does the copy function of a multifunction apparatus of the kind described in these proceedings, designed to operate through a direct connection or a network with one or more computers, but capable, as regards the copying function only, of operating autonomously, constitute a 'specific function other than data processing' within the meaning of Note 5(E) to Chapter 84 of the Combined Nomenclature?

               2.

               In the event of an affirmative answer to the first question, does the existence of that specific function, which is expressly acknowledged not to give the product its essential character, mean that classification in Chapter 84, pursuant to Note 5(E), is to be excluded, despite the existence of printing and scanner functions associated with data processing?

               3.

               If that is the case, and in relation to equipment made up of three materially distinct modules (printer, scanner and computer), should the classification not be made on the basis of General Rule 3(b)?

               4.

               More generally, on a correct interpretation of the Harmonised System and of the Combined Nomenclature, must printers of the kind described in this procedure be classified under heading 8471 60 or 9009 12 00?

               5.

               Is it not the case that Commission Regulation (EC) No 400/2006 of 8 March 2006 (1) is invalid, in particular because it is contrary to the Harmonised System, to the Combined Nomenclature and to Rules 1 and 3(b) of the General Rules for the Interpretation of the Harmonised System and the Combined Nomenclature, in so far as it relies on the concept of a ‘function that gives the apparatus its essential character’ and its effect would be to classify printers of the kind described under heading 9009 12 00?

      (1)  Commission Regulation (EC) No 400/2006 of 8 March 2006 concerning the classification of certain goods in the Combined Nomenclature (OJ 2006 L 70, p. 9).


title: Case T-265/01: Action brought on 22 October 2001 by Confederación Empresarial Vasca against Commission of the European Communities

text:
5.1.2002               EN                     Official Journal of the European Communities                                          C 3/41
Pleas in law and main arguments                                          Pleas in law and main arguments
The appointing authority applied Article 46 of the Staff                 The applicant is challenging Commission Decision
Regulations and did not evaluate the applicant’s professional            C(2001)1759 final of 11 July 2001 in so far as it characterises
experience in order to establish whether it would be possible            as State aid incompatible with the common market the tax
for Article 31(2) of the Staff Regulations to be applied in order        reductions under Articles 52 to 56 of the Ley Foral (Regional
to appoint him in Grade A 4 instead of Grade A 5.                        Law) 24/1996 del impuesto sobre sociedades (Regional Law
                                                                         on corporation tax) of 30 December 1996 (Boletı́n Oficial de
                                                                         Navarra No 159 of 31 December 1996) which provide for a
                                                                         reduction of 50 % on the aforementioned tax for undertakings
The appointing authority should have calculated, on the basis
                                                                         which take up business in the Autonomous Community of
of the second paragraph of Article 32(2), his additional
professional experience and placed him at Step 2, and should             Navarra after the entry into force of that Law, provided they
                                                                         invest a minimum of PTA 100 million (EUR 601 012) and
have granted him additional seniority of 5,5 months at Step 2.
                                                                         create more than 10 new jobs.
Deficient statement of reasons.                                          The pleas in law and main arguments on which the applicant
                                                                         relies are similar to those put forward in Case T-225/01.
Action brought on 22 October 2001 by Confederación
Empresarial Vasca against Commission of the European                     Action brought on 22 October 2001 by Confederación
                          Communities                                    Empresarial Vasca against Commission of the European
                                                                                Communities
                         (Case T-265/01)
                                                                                (Case T-266/01)
                          (2002/C 3/70)
                                                                                (2002/C 3/71)
                  (Language of the case: Spanish)
                                                                                (Language of the case: Spanish)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               An action against the Commission of the European Communi-
European Communities on 22 October 2001 by Confedera-                    ties was brought before the Court of First Instance of the
ción Empresarial Vasca, whose registered office is at Bilbao            European Communities on 22 October 2001 by Confedera-
(Spain, represented by Marcos Araujo Boyd, lawyer.                       ción Empresarial Vasca, whose registered office is at Bilbao
                                                                         (Spain, represented by Marcos Araujo Boyd, lawyer.
The applicant claims that the Court should:
                                                                         The applicant claims that the Court should:
—     annul the decision of the defendant of 11 July 2001 on             —     annul the decision of the defendant of 11 July 2001 on
      the system of State aid applied by Spain to undertakings                 the system of State aid applied by Spain to undertakings
      in Alava in the shape of a tax credit of 45 % of the cost                in Vizcaya in the shape of a tax credit of 45 % of the cost
      of the investment;                                                       of the investment;
—     in the alternative, annul Articles 3 and 4 of the decision         —     in the alternative, annul Articles 3 and 4 of the decision
      of the defendant of 11 July 2001 on the system of State                  of the defendant of 11 July 2001 on the system of State
      aid applied by Spain to undertakings in Alava in the                     aid applied by Spain to undertakings in Vizcaya in the
      shape of a tax credit of 45 % of the cost of the investment,             shape of a tax credit of 45 % of the cost of the investment,
      inasmuch as the obligation to recover the amounts not                    inasmuch as the obligation to recover the amounts
      levied by the Alava regional revenue authorities pursuant                not levied by the Vizcaya regional revenue authorities
      to the disputed fiscal legislation is unjustified;                       pursuant to the disputed fiscal legislation is unjustified;
—     order the Commission to pay the costs.                             —     order the Commission to pay the costs.


title: ORDER OF THE COURT (Fourth Chamber) of 24 April 1996 in Case C-87/95 P: Cassa Nazionale di Previdenza ed Assistenza a favore degli Avvocati e Procuratori (CNPAAP) v. Council of the European Union (Action for annulment - Regulation (EC) No 3604/93 specifying definitions for the application of the prohibition of privileged access referred to in Article 104a of the Treaty - Admissibility - Appeal clearly unfounded)

text:
  22. 6 . 96          I EN I                Official Journal of the European Communities                                No C 180/17
  composed of G. Hirsch ( Rapporteur ), President of the               2 . The appellant shall bear the costs.
  Chamber, G. F. Mancini and F. A. Schockweiler, Judges; N.
  Fennelly, Advocate-General; R. Grass, Registrar, made an
  order on 14 March 1996 , the operative part of which is as           (!) OJ No C 159 , 24 . 6 . 1995
  follows :
  1 . The appeal is dismissed as manifestly inadmissible.
  2 . Mr Del Plato is ordered to pay the costs of these
        proceedings.
                                                                                ORDER OF THE COURT
  0 ) OJ No C 87, 8 . 4 . 1995 .                                                               of 25 March 1996
                                                                       in Case C-137/95 P: Vereniging van Samenwerkende
                                                                       Prijsregelende Organisaties in de Bouwnijverheid and
                                                                         Others v. Commission of the European Communities ( 1 )
                                                                        (Appeal — Competition — Decisions of associations of
                                                                        undertakings — Exemption — Appraisal of the gravity of
                                                                             the infringements — Appeal manifestly unfounded)
                                                                                ( 96/C 180/35 )
                    ORDER OF THE COURT
                         ( Fourth Chamber)
                                                                                (Language of the case: Dutch)
                          of 24 April 1996
  in Case C-87/95 P: Cassa Nazionale di Previdenza ed
  Assistenza a favore degli Avvocati e Procuratori ( CNPAAP)            (Provisional translation; the definitive translation will be
               v. Council of the European Union ( ! )                             published in the European Court Reports)
   (Action for annulment — Regulation (EC) No 3604/93
   specifying definitions for the application of the prohibition
   ofprivileged access referred to in Article 104a ofthe Treaty         In Case C-137/95 P : Vereniging van Samenwerkende
          — Admissibility — Appeal clearly unfounded)                   Prijsregelende Organisaties in de Bouwnijverheid and
                            ( 96/C 180/34 )                             Others ( represented by L. H. van Lennep and E. H. Pijnacker
                                                                        Hordijk ) — appeal against the judgment of the Court of
                                                                        First Instance of the European Communities of 21 February
                   (Language of the case: Italian)                      1995 , Case T-29/92 SPO and Others v. Commission [ 1995 ]
                                                                        ECR 11-289 , seeking to have that judgment set aside, the
                                                                        other party to the proceedings being the Commission of the
   (Provisional translation; the definitive translation will be         European Communities ( Agent: B. J. Drijber, assisted by P.
            published in the European Court Reports)                    Glazener, Avocat) — the Court, composed of G. C.
                                                                        Rodriguez Iglesias, President, C. N. Kakouris, D. A. O.
                                                                        Edward, J. -P. Puissochet and G. Hirsch ( Presidents of
   In Case C-87/95 P : Cassa Nazionale di Previdenza ed                 Chambers ), G. F. Mancini, F. A. Schockweiler, J. C.
   Assistenza a favore degli Avvocati e Procuratori ( CNPAAP )          Moitinho de Almeida, P. J. G. Kapteyn, C. Gulmann, J. L.
   ( represented by Pietro Adonino, Mario Sanino, Maurizio de           Murray, P. Jann ( Rapporteur ), H. Ragnemalm, L. Sevón
   Stefano and Alberto Colabianchi ) — appeal against the               and M. Wathelet, Judges; M. B. Elmer, Advocate-General;
   order of the Court of First Instance of the European                 R. Grass, Registrar, made an order on 25 March 1996 , the
   Communities (Third Chamber ) of 11 January 1995 in Case              operative part of which is as follows :
   T-l 16/94 Cassa Nazionale di Previdenza ed Assistenza a
   favore degli Avvocati e Procuratori v. Council of the
   European Union [ 1995 ] ECR II- 1 , seeking to have that              1 . The appeal is dismissed.
   order set aside, the other party to the proceedings being
   Council of the European Union ( Agents: Rüdiger Bandilla
   and Antonio Lucidi ) — the Court ( Fourth Chamber ),                  1 . The applicants are ordered, jointly and severally, to pay
„ composed of C. N. Kakouris, President of the Chamber, P. J.                 the costs .
   G. Kapteyn and J. L. Murray ( Rapporteur), Judges; A. La
   Pergola, Advocate-General; R. Grass, Registrar, made an
   order on 24 April 1996 , the operative part of which is as            (<) OJ No C 189 , 22 . 7 . 1995 .
   follows :
    1 . The appeal is dismissed.


title: Case C-75/00 P: Appeal brought on 2 March 2000 by Acciaierie di Bolzano SpA against the judgment delivered on 16 December 1999 by the Fifth Chamber, Extended Composition, of the Court of First Instance of the European Communities in Case T-158/96 between Acciaierie di Bolzano SpA and Commission of the European Communities

text:
C 149/20                EN                    Official Journal of the European Communities                                   27.5.2000
— order Ireland to pay the costs.                                        1998 without Ireland having enacted the provisions necessary
                                                                         to comply with the directive referred to in the conclusions of
                                                                         the Commission.
Pleas in law and main arguments
                                                                         (1) OJ L 333, 04.12.1997, p. 1.
Article 249 EC (ex Article 189 of the EC Treaty) under which             (2) Council Directive 76/769/EEC of 27 July 1976 (OJ L 262,
a directive shall be binding as to the result to be achieved,                27.09.76, p. 201).
upon each Member State, carries by implication an obligation
on the Member States to observe the period for compliance
laid down in the directive. That period expired on 1 August
1998 without Ireland having enacted the provisions necessary
to comply with the directive referred to in the conclusions of
the Commission.
                                                                         Reference for a preliminary ruling by the Verwaltungsge-
( 1) OJ L 140, 12.05.1998, p. 10.                                        richtshof by order of that court of 17 February 2000 in
(2) Council Directive 93/43/EEC of 14 June 1993 on the hygiene of        the case of DEVELOP Baudurchführungs- und Stadt-
     foodstuffs (OJ L 175, 19.07.1993, p. 1.                             entwicklungs GmbH against Finanzlandesdirektion für
                                                                                Wien, Niederösterreich und Burgenland
                                                                                (Case C-71/00)
                                                                                (2000/C 149/34)
Action brought on 29 February 2000 by the Commission                     Reference has been made to the Court of Justice of the
         of the European Communities against Ireland                     European Communities by order of the Verwaltungsgerichts-
                                                                         hof (Higher Administrative Court) of 17 February 2000,
                            (Case C-69/00)                               received at the Court Registry on 2 March 2000, for a
                                                                         preliminary ruling in the case of DEVELOP Baudurchführungs-
                                                                         und Stadtentwicklungs GmbH v Finanzlandesdirektion für
                           (2000/C 149/33)                               Wien, Niederösterreich und Burgenland on the following
                                                                         question:
An action against Ireland was brought before the Court of
Justice of the European Communities on 29 February 2000 by               Do payments which an acquirer of dividend rights in a capital
the Commission of the European Communities, represented                  company makes not on its own behalf but on behalf of its
by Mr Michael Shotter, a member of its Legal Service, acting as          parent company constitute a ‘contribution of assets of any
agent, with an address for service at the office of Mr Carlos            kind’ within the meaning of Article 4(1)(d) of Council Directive
Gómez de la Cruz, a member of its Legal Service, at the                 69/335/EEC (1) of 17 July 1969 concerning indirect taxes on
Wagner Centre, Kirchberg, Luxembourg.                                    the raising of capital?
The Applicant claims that the Court should:                              (1) OJ 1969 L 249, p. 25.
— declare that by failing to adopt the laws, regulations
      or administrative provisions necessary to comply with
      Directive 97/56/EC (1) of the European Parliament and of
      the Council of 20 October 1997 amending for the 16th
      time Directive 76/769/EEC on the approximation of the
      laws, regulations and administrative provisions of the
      Member States relating to restrictions on the marketing and        Appeal brought on 2 March 2000 by Acciaierie di Bolzano
      use of certain dangerous substances and preparations (2) or,       SpA against the judgment delivered on 16 December
      in any event, by failing to inform the Commission of those         1999 by the Fifth Chamber, Extended Composition, of
      measures, Ireland has failed to fulfil its obligations under       the Court of First Instance of the European Communities
      that Directive; and                                                in Case T-158/96 between Acciaierie di Bolzano SpA and
                                                                                Commission of the European Communities
— order Ireland to pay the costs.
                                                                                (Case C-75/00 P)
Pleas in law and main arguments                                                                  (2000/C 149/35)
Article 249 EC (ex Article 189 of the EC Treaty) under which             An appeal against the judgment delivered on 16 December
a directive shall be binding as to the result to be achieved,            1999 by the Fifth Chamber, Extended Composition, of the
upon each Member State, carries by implication an obligation             Court of First Instance of the European Communities in Case
on the Member States to observe the period for compliance                T-158/96 between Acciaierie di Bolzano SpA and Commission
laid down in the directive. That period expired on 4 December            of the European Communities (Italian Republic and Falck SpA,
 ---pagebreak--- 27.5.2000              EN                     Official Journal of the European Communities                                      C 149/21
interveners) was brought before the Court of Justice of the              — Breach of the rule of law which makes the incompatibility
European Communities on 2 March 2000 by Acciaierie di                         of ECSC aid dependent on changes in competitive con-
Bolzano SpA, represented by Bruno Nascimbene, with an                         ditions. Absence of reasons regarding validity and compati-
address for service at 36, Rue de Wiltz, Luxembourg.                          bility of the aid;
                                                                         — Breach of the procedural rules governing inter partes
The appellant claims that the Court should:                                   proceedings, to the detriment of the appellant’s interests.
1. Set aside the judgment of the Court of First Instance of
    the European Communities in Case T-158/96 between                    (1) OJ 1996 L 274, p. 30.
    Acciaierie di Bolzano SpA and Commission of the Euro-
    pean Communities (Italian Republic and Falck SpA, inter-
    veners);
2. By so doing, annul Commission Decision 96/617/ECSC of
    17 July 1996 concerning aid granted by the Autonomous
    Province of Bolzano (Italy) to Acciaierie di BoIzano (1).
                                                                         Action brought on 2 March 2000 by the Commission of
In the alternative                                                         the European Communities against the Italian Republic
3. In the event that the Court of Justice should decide that it                                    (Case C-78/00)
    cannot make a decision as to the status of the measure, set
    aside the judgment of the Court of First Instance and refer
    the case to another sitting of the Court of First Instance,                                   (2000/C 149/36)
    indicating the points of law upheld in the present appeal.
                                                                         An action against the Italian Republic was brought before the
4. Make any other decisions it may deem necessary.                       Court of Justice of the European Communities on 2 March
                                                                         2000 by the Commission of the European Communities,
5. Order the Commission to pay the costs, including those                represented by Enrico Traversa, Legal Adviser, acting as Agent,
    incurred at first instance.                                          with an address for service in Luxembourg at the office of
                                                                         Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
Pleas and main arguments                                                 The applicant claims that the Court should:
                                                                         a) Declare that, by providing that, in the case of a category of
The contested judgment should be set aside on the following                   taxpayer whose tax situation for 1992 shows a credit
grounds:                                                                      balance, such persons be belatedly issued with Government
                                                                              bonds (titoli di Stato) rather than VAT refunds, the Italian
— Failure to declare that the rights of the defence had                       Republic has failed to fulfil its obligations under Articles
    been infringed by the administrative decision and the                     17 and 18 of Sixth Council Directive 77/388/EEC of
    inconsistency of the decision at issue;                                   17 May 1977 on the harmonisation of the laws of the
                                                                              Member States relating to turnover taxes (1);
— Breach of the prohibition on making decisions containing
                                                                         b) Order the Italian Republic to pay the costs of the proceed-
    sanctions and of the principle of proportionality; absence/
    inadequacy/inconsistency of the reasons stated in that                    ings.
    respect;
— Invalid calculation of the interest and inadequate reasons             Pleas in law and main arguments
    stated in that respect;
                                                                         According to the Commission, the Italian State has failed to
— Breach of rules on limitation periods. Absence and inad-               fulfil its obligation to issue VAT refunds to taxpayers whose
    equacy of reasons in that respect;                                   tax balance for the 1992 tax year shows a credit situation in
                                                                         excess of 100 million as a result of intra-Community trans-
                                                                         actions accounting for more than 10 % of their total taxable
— Breach of the prohibition on applying Community rules                  transactions for that year. The Italian State has thereby
    retroactively. Failure to state reasons in that respect;             deprived that category of person of the normal exercise of the
                                                                         right to a refund, a right which constitutes an ‘essential
— Breach of the legal expectations held by Acciaierie di                 element’ of the entire common system of value added tax and
    Bolzano that it would not have to repay the aid and of the           restriction of which constitutes a serious infringement of
    principles of good faith and cooperation;                            Article 17 of the Sixth Directive.


title: Case C-119/00: Action brought on 29 March 2000 by the Commission of the European Communities against the Grand-Duchy of Luxembourg

text:
10.6.2000                 EN                   Official Journal of the European Communities                                       C 163/15
2. Does the fact that that institution responsible for the social         Pleas in law and main arguments
     security of self-employed workers of a Member State of
     the EC applied Article 95a(5) of Regulation (EEC) No
                                                                          The pleas in law and main arguments raised are similar to
     1408/71 in the situation described in the first question
     constitute, in the circumstances in which it was applied, a          those set out in Case C-105/00 (2); the implementation period
                                                                          set by the directive expired on 30 December 1998.
     serious infringement of Community law within the mean-
     ing of the case-law of the CJEC where that institution has
     already infringed Regulation (EEC) No 1408/71 (Articles
                                                                          (1) OJ L 202 of 30.7.1997, p. 60.
     12 and 46), as stated in the judgment of the CJEC of                 (2) See p. 10 of this Official Journal.
     2 August 1993 in a similar case and the social security
     institution recognises that fact in the proceedings and the
     court hearing the case has given a ruling to that effect by
     judgment of 10 February 1999 and where, following
     correspondence between the Commission of the European
     Communities and the Member State, the Minister respon-
     sible for the national social security institution asked the
     latter to regularise the situation of the migrant worker and
     that institution acceded to that request by applying the             Action brought on 29 March 2000 by the Commission of
     abovementioned Article 95a(5)?                                        the European Communities against the French Republic
(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on                                    (Case C-120/00)
    the application of social security schemes to employed persons
    and their families moving within the Community (OJ English
    special edition, 1971 (II) p. 416).                                                              (2000/C 163/26)
                                                                          An action against the French Republic was brought before the
                                                                          Court of Justice of the European Communities on 29 March
                                                                          2000 by the Commission of the European Communities,
                                                                          represented by Karen Banks, Legal Adviser, acting as Agent,
                                                                          with an address for service in Luxembourg at the office of
                                                                          Carlos Gómez de la Cruz, of the Commission’s Legal Service,
Action brought on 29 March 2000 by the Commission of                      Wagner Centre, Kirchberg.
the European Communities against the Grand-Duchy of
                             Luxembourg
                                                                          The Commission of the European Communities claims that
                                                                          the Court should:
                           (Case C-119/00)
                                                                          — Declare that, by failing to adopt the laws, regulations
                           (2000/C 163/25)                                     and administrative provisions necessary to comply with
                                                                               Directive 97/36/EC of the European Parliament and of the
                                                                               Council of 30 June 1997 amending Council Directive
An action against the Grand-Duchy of Luxembourg was
                                                                               89/552/EEC on the coordination of certain provisions laid
brought before the Court of Justice of the European Communi-
                                                                               down by law, regulation or administrative action in
ties on 29 March 2000 by the Commission of the European
                                                                               Member States concerning the pursuit of television broad-
Communities, represented by Karen Banks, Legal Adviser,
                                                                               casting activities (1) and/or by failing to inform the Com-
acting as Agent, with an address for service in Luxembourg at
                                                                               mission thereof, the French Republic has failed to fulfil its
the office of Carlos Gómez de la Cruz, of the Commission’s
                                                                               obligations under that directive;
Legal Service, Wagner Centre, Kirchberg.
                                                                          — Order the French Republic to pay the costs.
The Commission of the European Communities claims that
the Court should:
                                                                          Pleas in law and main arguments
— Declare that, by failing to adopt the laws, regulations
     and administrative provisions necessary to comply with
     Directive 97/36/EC of the European Parliament and of the             The pleas in law and main arguments raised are similar to
     Council of 30 June 1997 amending Council Directive                   those set out in Case C-119/00 (2); the implementation period
     89/552/EEC on the coordination of certain provisions laid            set by the directive expired on 30 December 1998.
     down by law, regulation or administrative action in
     Member States concerning the pursuit of television broad-
     casting activities (1) and/or by failing to inform the Com-          (1) OJ L 202 of 30.7.1997, p. 60.
     mission thereof, the Grand-Duchy of Luxembourg has                   (2) See p. 15 of this Official Journal.
     failed to fulfil its obligations under that directive;
— Order the Grand-Duchy of Luxembourg to pay the costs.


title: Case T-312/15: Judgment of the General Court of 13 May 2016 — Market Watch v EUIPO — Glaxo Group (MITOCHRON) (EU trade mark — Opposition proceedings — Application for EU word mark MITOCHRON — Earlier national word mark MIVACRON — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation No 207/2009)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/19

         Judgment of the General Court of 13 May 2016 — Market Watch v EUIPO — Glaxo Group (MITOCHRON)
   (Case T-312/15) (1)

   ((EU trade mark - Opposition proceedings - Application for EU word mark MITOCHRON - Earlier national word mark MIVACRON - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation No 207/2009))
   (2016/C 232/25)
   Language of the case: English

      Parties

      Applicant: Market Watch Franchise & Consulting, Inc. (Freeport, Bahamas) (represented by: J. Korab, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: S. Bonne, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Glaxo Group Ltd (Brentford, United Kingdom) (represented by S. Malynicz, Barrister, and A. Smith, Solicitor)

      Re:

   Action brought against the decision of the Second Board of Appeal of EUIPO of 20 March 2015 (Case R 507/2014-2), relating to opposition proceedings between Glaxo Group Ltd and Market Watch Franchise & Consulting, Inc.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Market Watch Franchise & Consulting, Inc. to pay the costs.

      (1)  OJ C 270, 17.8.2015.


title: Case C-634/15: Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (Austria) lodged on 30 November 2015 — Susanne Sokoll-Seebacher and Manfred Naderhirn

text:
               5.9.2016

               EN

               Official Journal of the European Union

               C 326/7

         Request for a preliminary ruling from the Landesverwaltungsgericht Oberösterreich (Austria) lodged on 30 November 2015 — Susanne Sokoll-Seebacher and Manfred Naderhirn
   (Case C-634/15)
   (2016/C 326/12)
   Language of the case: German

      Referring court

   Landesverwaltungsgericht Oberösterreich

      Parties to the main proceedings

      Applicants: Susanne Sokoll-Seebacher, Manfred Naderhirn

      Intervening parties: Agnes Hemetsberger, Mag. Jungwirth und Mag. Fabian OHG and Others
   By the order of 30 June 2016, the Court (Eighth Chamber) orders:
   The judgment of 13 February 2014 in Sokoll-Seebacher (C-367/12, EU:C:2014:68) must be read as meaning that the criterion relating to a strict limit on the number of ‘persons who continue to be served’, laid down by the national legislation at issue in the main proceedings, is not to be applied, for the purposes of determining the existence of a need to open a new pharmacy, in a general manner, in every specific situation which will be the subject of an assessment.


title: Judgment of the Court (Fifth Chamber) of 23 October 2003 In Joined Cases C-4/02 and C-5/02 (Reference for a preliminary ruling from the Verwaltungsgericht Frankfurt am Main): Hilde Schönheit v Stadt Frankfurt am Main and between Silvia Becker v Land Hessen (Social policy — Equal pay for men and women — Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC and of Directive 86/378/EEC or Directive 79/7/EEC — Meaning of "pay" — Civil service pension scheme — Calculation of the old-age pension for part-time civil servants — Discriminatory treatment as compared with full-time workers — Indirect discrimination based on sex — Conditions governing justification for objective reasons unrelated to any discrimination on grounds of sex — Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) — Temporal effects)

text:
C 304/6                 EN                           Official Journal of the European Union                                               13.12.2003
                 JUDGMENT OF THE COURT                                       Council Directive 97/80/EC of 15 December 1997 on the
                                                                             burden of proof in cases of discrimination based on sex (OJ
                                                                             1998 L 14, p. 6), the Court (Fifth Chamber), composed of:
                          (Fifth Chamber)                                    A. La Pergola (Rapporteur), acting as President of the Fifth
                                                                             Chamber, P. Jann and S. von Bahr, Judges; L.A. Geelhoed,
                                                                             Advocate General; H.A. Rühl, Principal Administrator, for the
                                                                             Registrar, has given a judgment on 23 October 2003, in which
                       of 23 October 2003                                    it has ruled:
In Joined Cases C-4/02 and C-5/02 (Reference for a
preliminary ruling from the Verwaltungsgericht Frankfurt
am Main): Hilde Schönheit v Stadt Frankfurt am Main and
          between Silvia Becker v Land Hessen (1)                            1.    A retirement pension paid under a scheme such as the one
                                                                                established by the Gesetz über die Versorgung der Beamten und
                                                                                Richter in Bund und Ländern of 24 August 1976, in the
(Social policy — Equal pay for men and women — Applica-                            version published on 16 March 1999, falls within the scope of
bility of Article 119 of the EC Treaty (Articles 117 to 120 of                     Article 119 of the EC Treaty (Articles 117 to 120 of the EC
the EC Treaty have been replaced by Articles 136 EC to 143                         Treaty have been replaced by Articles 136 EC to 143 EC) and
EC) and Article 141(1) and (2) EC and of Directive 86/378/                         of Article 141(1) and (2) EC. Those provisions preclude
EEC or Directive 79/7/EEC — Meaning of ‘pay’ — Civil                               legislation, such as that deriving from Paragraph 85 of the
service pension scheme — Calculation of the old-age pension                        abovementioned law in conjunction with the old version of
for part-time civil servants — Discriminatory treatment as                         Paragraph 14 thereof, which may entail a reduction in the
compared with full-time workers — Indirect discrimination                          pension of civil servants who have worked part-time for at least
based on sex — Conditions governing justification for                              a part of their working life, where that category of civil servants
objective reasons unrelated to any discrimination on grounds                       includes a considerably higher number of women than men,
of sex — Protocol concerning Article 119 of the EC Treaty                          unless the legislation is justified by objective factors unrelated to
(now Protocol concerning Article 141 EC) — Temporal                                any discrimination on grounds of sex.
                               effects)
                          (2003/C 304/08)
                                                                             2.    It is for the national court, which has sole jurisdiction to assess
                                                                                the facts and interpret the national legislation, to determine
                                                                                whether and to what extent a legislative provision which,
                   (Language of the case: German)                                  though applying independently of the sex of the worker, actually
                                                                                affects a considerably higher percentage of women than men is
                                                                                justified by objective factors unrelated to any discrimination on
(Provisional translation; the definitive translation will be published             grounds of sex.
                   in the European Court Reports)
                                                                                Restricting public expenditure is not an objective which may be
                                                                                relied on to justify different treatment on grounds of sex.
In Joined Cases C-4/02 and C-5/02: References to the Court
under Article 234 EC by the Verwaltungsgericht Frankfurt am                        The different treatment of men and women may be justified,
Main (Germany) for a preliminary ruling in the proceedings                         depending on the circumstances, by reasons other than those
pending before that court between Hilde Schönheit and Stadt                        put forward at the time when the measure introducing the
Frankfurt am Main (C-4/02), and between Silvia Becker and                          difference in treatment was introduced.
Land Hessen (C-5/02), on the interpretation of Article 119 of
the EC Treaty (Articles 117 to 120 of the EC Treaty have been
replaced by Articles 136 EC to 143 EC), of the Protocol
concerning Article 119 of the EC Treaty, annexed to the EC                         National legislation, such as that deriving from Paragraph 85
Treaty by the Treaty on European Union (now the Protocol                           of the Gesetz über die Versorgung der Beamten und Richter in
concerning Article 141 EC), of Article 141(1) and (2) EC, of                       Bund und Ländern in conjunction with the old version of
Council Directive 79/7/EEC of 19 December 1978 on the                              Paragraph 14 thereof, which has the effect of reducing a
progressive implementation of the principle of equal treatment                     worker’s retirement pension by a proportion greater than that
for men and women in matters of social security (OJ 1979 L 6,                      resulting when his periods of part-time work are taken into
p. 24), of Council Directive 86/378/EEC of 24 July 1986 on                         account cannot be regarded as objectively justified by the fact
the implementation of the principle of equal treatment for                         that the pension is in that case consideration for less work or
men and women in occupational social security schemes (OJ                          on the ground that its aim is to prevent civil servants employed
1986 L 225, p. 40), as amended by Council Directive 96/97/                         on a part-time basis from being placed at an advantage in
EC of 20 December 1996 (OJ 1997 L 46, p. 20), and of                               comparison with those employed on a full-time basis.
 ---pagebreak--- 13.12.2003               EN                          Official Journal of the European Union                                                 C 304/7
3.    Protocol No 2 concerning Article 119 of the Treaty establishing        1.    Articles 1(4)(k) and 6(8) of Council Directive 90/496/EEC of
      the European Community and the Protocol concerning                           24 September 1990 on nutrition labelling for foodstuffs must
      Article 141 EC annexed to the EC Treaty are to be interpreted                be interpreted as meaning that, first, the value of a nutrient
      as precluding the application of Article 119 of the Treaty and               such as vitamin C which is indicated on a foodstuff following
      Article 141(1) and (2) EC respectively to benefits provided                  an analysis of the foodstuff carried out by the manufacturer
      under an occupational social security scheme payable in respect              may correspond to the value of that nutrient in the foodstuff in
      of periods of employment prior to 17 May 1990, subject to the                question at the end of its minimum conservation period and,
      exception for workers or those claiming under them who have                  second, that the determination of the permissible differences
      before that date initiated legal proceedings or raised an                    between the value stated and the value established in the course
      equivalent claim under the applicable national law.                          of an official check is, in the present state of Community law,
                                                                                within the competence of the Member States.
(1) OJ C 109 of 4.5.2002.                                                    2.    Consideration of the third question has not disclosed any factor
                                                                                of such a kind as to affect the validity of Directive 90/496.
                                                                             (1) OJ C 109 of 4.5.2002.
                  JUDGMENT OF THE COURT
                          (Sixth Chamber)
                                                                                JUDGMENT OF THE COURT
                        of 23 October 2003
                                                                                (Fifth Chamber)
in Case C-40/02 (Reference for a preliminary ruling from
the Unabhängiger Verwaltungssenat im Land Niederöster-                                               of 23 October 2003
reich): Margareta Scherndl v Bezirkshauptmannschaft
                            Korneuburg (1)
                                                                             in Case C-109/02: Commission of the European Communi-
                                                                                ties v Federal Republic of Germany (1)
(Directive 90/496/EEC — Nutrition labelling of foodstuffs
— Vitamin content — Declared value — Average value
— Reference date — Permissible differences between the                       (Failure of a Member State to fulfil obligations — Sixth
declared value and the value established in the course of an                 VAT Directive — National legislation providing for a
     official check — Proportionality — Legal certainty)                     reduced rate for musical ensembles and soloists provided the
                                                                                latter organise the concert themselves)
                           (2003/C 304/09)
                                                                                (2003/C 304/10)
                    (Language of the case: German)
                                                                                (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-40/02: Reference to the Court under Article 234 EC
by the Unabhängiger Verwaltungssenat im Land Niederöster-                    In Case C-109/02, Commission of the European Communities
reich (Austria) for a preliminary ruling in the proceedings                  (Agents: E. Traversa and G. Wilms) v Federal Republic of
pending before that court between Margareta Scherndl and                     Germany (Agents: W.-D. Plessing and M. Lumma): Application
Bezirkshauptmannschaft Korneuburg, on the interpretation                     for a declaration that, by applying a reduced rate of value
and validity of Articles 1(4)(k) and 6(8) of Council Directive               added tax to services provided directly to the public by musical
90/496/EEC of 24 September 1990 on nutrition labelling for                   ensembles or for a concert organiser and to services provided
foodstuffs (OJ 1990 L 276, p. 40), the Court (Sixth Chamber),                directly to the public by soloists, but applying the standard
composed of: J.-P. Puissochet, President of the Chamber,                     rate of that tax to the services of soloists working for an
R. Schintgen, V. Skouris, F. Macken and J.N. Cunha Rodrigues                 organiser, the Federal Republic of Germany has failed to fulfil
(Rapporteur), Judges; J. Mischo, Advocate General; R. Grass,                 its obligations under the third subparagraph of Article 12(3)(a)
Registrar, has given a judgment on 23 October 2003, in which                 of the Sixth Council Directive 77/388/EEC of 17 May 1977
it has ruled:                                                                on the harmonisation of the laws of the Member States relating


title: Case C-209/03: Reference for a preliminary ruling by the High Court of Justice (England and Wales), Queen's Bench Division (Administrative Court) by order of that court dated 12 February 2003, in the case of The Queen on the application of Dany Bidar against 1) London Borough of Ealing 2) Secretary of State for Education

text:
19.7.2003                EN                      Official Journal of the European Union                                           C 171/13
same time infringed all three principles upheld by the Court in          which requires all the Member States to introduce into their
regard to the recovery of charges levied by the Member States            respective national systems review procedures full available to
in breach of Community law, that is to say not only the                  those who intend to seek reparation of damage suffered or
principle of equivalence and the maintenance of the effects of           who in any event fear that they may suffer harm as a result of
judgments of the Court declaring a charge incompatible with              a decision taken by the tenders committee for the award of a
Community law but also the principle of effectiveness.                   public procurement contract?
( 1) OJ English Special Edition 1969 II, p. 412.
                                                                         Does that interim relief which may be granted by the national
                                                                         administrative courts constitute infringement of Article 2(1)(a)
                                                                         of the Directive, which requires the Member States to take at
                                                                         the earliest opportunity and by way of interlocutory pro-
                                                                         cedures, interim measures with the aim of correcting the
                                                                         alleged infringement or preventing further damage to the
Reference for a preliminary ruling by the Tribunale                      interests concerned, including measures to suspend or to
Amministrativo Regionale per la Lombardia — Sezione                      ensure the suspension of the procedure for the award of a
Staccata di Brescia by order of that Court of 24 April                   public contract or the implementation of any decision taken
2003 in the case of Società DAC S.p.A. against Azienda                   by the contracting authority?
Ospedaliera ‘Spedali Civili’, Brescia; the third party being
                          Pellegrini S.p.A
                                                                         Finally, does that form of interim relief also constitute breach
                          (Case C-202/03)                                of Article 6(2) TEU which, in providing that the Union must
                                                                         respect fundamental rights, as guaranteed by the European
                          (2003/C 171/18)                                Convention for the Protection of Human Rights and Funda-
                                                                         mental Freedoms, has adopted the principle laid down in
                                                                         Articles 6 and 13 of that Convention that judicial protection
                                                                         must be effective, requiring the Member States to guarantee
Reference has been made to the Court of Justice of the                   that full effectiveness in their respective national legal systems?
European Communities by order of the Tribunale Amministra-
tivo Regionale per la Lombardia - Sezione Staccata di Brescia
(Regional Administrative Court for Lombardy, Brescia Div-
ision) of 24 April 2003, received at the Court Registry on               (1 ) OJ L 395, 30.12.1989, p. 33.
13 May 2003, for a preliminary ruling in the case of
Società DAC S.p.A. against Azienda Ospedaliera ‘Spedali Civili’,
Brescia; the third party being Pellegrini S.p.A. on the following
questions:
Is the judicial protection provided in respect of claims based
on Community law, which may be granted by the national
administrative courts in procurement contract proceedings,
and which differs from that provided in the national legal               Reference for a preliminary ruling by the High Court of
order in respect of rights recognised in disputes between                Justice (England and Wales), Queen’s Bench Division
private persons or in disputes between the latter and the public         (Administrative Court) by order of that court dated
authorities over which the ordinary courts have jurisdiction,            12 February 2003, in the case of The Queen on the
contrary to the principle of cooperation enshrined in                    application of Dany Bidar against 1) London Borough of
Article 10 EC, which, in the absence of any harmonised                              Ealing 2) Secretary of State for Education
procedural system, requires that claims based on Community
law must be afforded the same form of protection as claims
based on national law, rather than relief which is purely                                         (Case C-209/03)
interlocutory and therefore less effective compared to the
protection afforded generally in respect of rights under national
law?                                                                                (2003/C 171/19)
Furthermore, in so far as it does not provide, among the
interim measures available, for the possibility of introducing
an application for interim relief ante causam, seeking an order          Reference has been made to the Court of Justice of the
restraining the authorities forthwith from concluding the                European Communities by an order of the High Court
contract at the end of a. tendering procedure, quite irrespective        of Justice (England and Wales), Queen’s Bench Division
of whether or not an action challenging an act in that                   (Administrative Court), dated 12 February 2003, which was
procedure has already been brought, does Article 21 of Law               received at the Court Registry on 15 May 2003, for a
No 1034 of 6 December 1971, as amended by Law No 205                     preliminary ruling in the case of The Queen on the application
of 21 July 2000, constitute sufficient implementation of                 of Dany Bidar against 1) London Borough of Ealing 2) Secretary
Article 1(3) of Directive 98/665/EEC (1) of 21 December 1989,            of State for Education on the following questions:
 ---pagebreak--- C 171/14              EN                         Official Journal of the European Union                                       19.7.2003
1.   Whether, given the decisions of the Court of Justice of                  erty), to be interpreted as precluding national legislation
     the European Communities in case C-39/86 Lair v                          which prohibits any person from supplying, offering or
     Universität Hannover [1988] ECR 3161, and case C-189/                    agreeing to supply, exposing for supply or possessing for
     97 Brown v Secretary of State for Scotland [1988] ECR                    supply any product made wholly or partly of tobacco
     3205, and developments in the law of the European                        which is either in powder or particulate form or any
     Union, including the adoption of Article 18 EC and                       combination of those forms or is presented in a form
     developments in relation to the competence of the                        resembling a food product and is intended for oral use
     European Union in the field of education, assistance                     other than smoking or chewing?
     with maintenance costs for students attending university
     courses, such assistance being given by way of either
     (a) subsidised loans or (b) grants, continues to fall outside
                                                                         (2) Is Article 8 of Directive 2001/37/EC ( 1) invalid in whole
     the scope of the application of the EC Treaty for the
                                                                              or in part by reason of:
     purposes of Article 12 EC and the prohibition on
     discrimination on grounds of nationality.
2.   If either part of question 1 is answered in the negative,                a.    infringement of the principle of non-discrimination;
     and if assistance with maintenance costs for students in
     the form of grants or loans do now fall within the scope
     of Article 12 EC, what criteria should the national court                b.    Infringement of Article 23 and/or 29 EC;
     apply in determining whether the conditions governing
     eligibility for such assistance are based on objectively
     justifiable considerations not dependent on nationality?
                                                                              c.    infringement of the principle of proportionality;
3.   If either part of question 1 is answered in the negative,
     whether Article 12 EC may be relied upon to claim
     entitlement to assistance with maintenance costs from a                  d.    the inadequacy of Article 95 and/or Article 133 as a
     date prior to the date of the judgment of the Court of                         legal basis;
     Justice in the present case and, if so, whether an exception
     should be made for those who initiated legal proceedings
     before that date?
                                                                              e.    infringement of Article 95(3);
                                                                              f.    misuse of powers;
                                                                              g.    infringement of Article 253 EC and/or the duty to
Reference for a preliminary ruling by the High Court of                             give reasons;
Justice (England and Wales), Queen’s Bench Division
(Administrative Court) by order of that court dated
17 April 2003, in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against                        h.    infringement of the fundamental right to property?
                 Secretary of State for Health
                        (Case C-210/03)                                  (3) In circumstances where:
                        (2003/C 171/20)
                                                                              a.    a national measure implementing Article 8a of
                                                                                Directive 89/622/EEC (2) was adopted in 1992;
Reference has been made to the Court of Justice of the
European Communities by an order of the High Court                            b.    the said national measure was adopted pursuant to
of Justice (England and Wales), Queen’s Bench Division                              powers in domestic law which do not depend on
(Administrative Court), dated 17 April 2003, which was                              the existence of an obligation to implement the
received at the Court Registry on 15 May 2003, for a                                Directive;
preliminary ruling in the case of The Queen on the application
of 1) Swedish Match AB 2) Swedish Match UK Ltd against
Secretary of State for Health on the following questions:                     c.    Directive 89/622/EEC (as subsequently amended by
                                                                                the Act of Accession of Austria, Finland and Sweden)
(1) Are Articles 28-30 EC, applied compatibly with the                              is repealed and replaced by Directive 2001/37/EC,
     general principles of proportionality, non-discrimination                      Article 8 of which re-enacts Article 8a of Directive
     and fundamental rights (in particular the right to prop-                       89/622/EEC; and


title: Case T-151/01: Action brought on 5 July 2001 by Der Grüne Punkt — Duales System Deutschland AG against the Commission of the European Communities

text:
C 289/26                EN                     Official Journal of the European Communities                                    13.10.2001
The applicant argues that the retroactive entry into force of             Pleas in law and main arguments
that regulation, the excessively long derogation which it makes
from the uniform system of exemption from customs duty,
and the unconditional facility which it confers to limit the
maximum amounts that may be imported duty free conflict                   The applicant has since 1991 operated what is at present the
with primary law and the general principles of Community                  only system covering the whole of Germany for the collection
law. In addition, it maintains that the retrospectively-imposed           and recovery of used sales packaging bearing its trade mark
limitation on import duties is not compatible with the principle          ‘Der Grüne Punkt’ (‘Green Dot’). In order to collect this
of the protection of legitimate expectations and the prohibition          packaging, the applicant has provided 32 million households
on retroactive effect.                                                    with collection containers, which also feature that mark.
                                                                          Pursuant to a uniform agreement governing use of that mark,
                                                                          the applicant authorises national and foreign manufacturers
The applicant maintains that it has suffered considerable                 and/or distributors to affix the mark to sales packaging
damage as a result of the illegality described above, for which           included in the applicant’s exemption system. According to
the European Community, represented by the Council, to                    the applicant, the mark ‘Der Grüne Punkt’ indicates, for the
which the conduct giving rise to liability is imputable, must             commercial sector concerned, the goods of manufacturers and
pay compensation pursuant to Article 235 EC in conjunction                distributors which participate in the applicant’s system with
with Article 288(2) EC.                                                   regard to disposal of actual packaging and which have recourse
                                                                          to the applicant’s disposal services. The mark also signals to
                                                                          consumers that they should dispose of packaging actually
(1) Council Regulation (EC) No 2744/98 of 14 December 1998                featuring that mark — but that packaging alone — in the
    amending Regulation (EC) No 355/94 and extending the tempor-          applicant’s collection containers.
    ary derogation applicable to Germany and Austria (OJ 1998
    L 345, p. 9).
(2) Council Directive 91/191/EEC of 27 March 1991 amending
    Directive 69/169/EEC on tax-paid allowances in intra-Community
    travel and as regards a derogation granted to the Kingdom of          The applicant notified the Commission in 1992 of its statutes,
    Denmark and to Ireland relating to the rules governing travellers’    together with a sample copy of the agreements underlying the
    allowances on imports (OJ 1991 L 94, p. 24).                          system and a sample copy of the agreements governing the
                                                                          use of the mark. The Commission stated in 1997 that it would
                                                                          give a positive ruling on all agreements notified to it. In
                                                                          November 1999 a complaint against the applicant was brought
                                                                          before the Commission.
Action brought on 5 July 2001 by Der Grüne Punkt —                        In the contested decision the Commission ruled that the
Duales System Deutschland AG against the Commission                       applicant had, through the agreements governing use of the
                  of the European Communities                             mark, infringed Article 82 EC, and required the applicant to
                                                                          grant licences for use of the mark ‘Der Grüne Punkt’ also on
                                                                          packaging not participating in the applicant’s system but
                          (Case T-151/01)                                 intended for disposal by a competitor, and to that extent to
                                                                          waive payment of licence fees.
                          (2001/C 289/63)
                   (Language of the Case: German)                         In its action, the applicant claims a breach of Article 82 EC,
                                                                          Article 86(2) EC and Article 3 of Regulation No 17.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 July 2001 by Der Grüne Punkt                    The applicant first submits that it has not abused any dominant
— Duales System Deutschland AG, Cologne, represented by                   market position which it may hold. According to the case-law
Wolfgang Deselaers, Bernd Meyring, Eckart Wagner and                      of the Court of Justice, a refusal by the holder of a copyright
Clemens Weidemann, with an address for service in Luxem-                  or design or model patent to grant a licence does not in
bourg.                                                                    principle constitute abuse within the meaning of Article 82 EC.
                                                                          The applicant’s refusal to grant separate licences for use of
                                                                          the mark ‘Der Grüne Punkt’ on packaging participating in
The applicant claims that the Court should:                               competing systems and intended for disposal by way of those
                                                                          systems is therefore not, in its view, abusive. The applicant
—      Annul the defendant’s decision of 20 April 2001                    argues that the contested decision would result in compulsory
       (K(2001) 1106-DE) relating to a proceeding pursuant to             licences for no fees. Any such obligation to grant licences is in
       Article 82 EC (Case COMP D3/34493-DSD);                            principle impermissible, since it would have the effect of
                                                                          reducing a commercial property right to an economic right to
—      Order the defendant to pay the costs of the proceedings.           remuneration.
 ---pagebreak--- 13.10.2001             EN                     Official Journal of the European Communities                                     C 289/27
The applicant contends that the decision means that in future            kamp, residing in Overijse (Belgium), represented by Eric
almost all sales packaging in Germany will bear its mark, with           Boigelot, avocat, with an address for service in Luxembourg.
the result that, together with its disposal partners, the applicant
will bear the costs of the disposal of packaging for which it
will receive no licence fee. Indiscriminate designation of almost        The applicant claims that the Court should:
all packaging in Germany with the mark ‘Der Grüne Punkt’
would, it argues, destroy both the indication-of-origin function
and the appeal function of that mark and thereby jeopardise              —     annul the decision of the appointing authority of 13 Sep-
the efficacy of the applicant’s system. At almost the same time                tember 2000 filling at Grade A 1 the post of Deputy
it would lead to a total dilution of the mark, and the recognised              Director General responsible for coordination of Director-
signal effect of the mark would be destroyed in a very short                   ates C, D and E of the Directorate-General for Agriculture
time. The applicant submits that the total dilution of the mark                (COM/094/00);
would imperil the authorisation of its system and claims
protection against revocation of that authorisation.                     —     set aside the appointment of another person to the post
                                                                               of Deputy Director General responsible for coordination
                                                                               of Directorates C, D and E of the Directorate-General for
                                                                               Agriculture (COM/094/00), which involved in particular
The applicant argues that there is no infringement of Article 82               the rejection of the application which the applicant had
inasmuch as the conditions for the legal exemption under                       submitted for the vacant post;
Article 86(2) EC are satisfied. The applicant submits that it is
entrusted with the operation of a service of general economic
interest and that accordingly the rules governing competition,           —     annul the implied decision rejecting the applicant’s com-
including those of Article 82 EC, apply to it only in so far as                plaint;
their application does not obstruct the performance, under
commercially acceptable conditions, of the particular tasks              —     in any event, order the defendant to pay the costs,
assigned to it. By destroying, in particular, the signal effect of             together with the expenses and fees of counsel consulted
the mark ‘Der Grüne Punkt’, the decision has the effect of                     by the applicant for the purpose of bringing the present
endangering in such a way the functional efficacy of the                       action.
applicant’s system.
The applicant concludes by arguing that there has been a                 Pleas in law and main arguments
breach of Article 3 of Regulation No 17, contending inter alia
that an obligation such as that laid down in Articles 3 and 4
of the contested decision to grant a temporally unlimited                The applicant claims that the Commission took account of the
compulsory licence to use the mark ‘Der Grüne Punkt’ without             nationality of applicants in making the appointment to the
payment of a licence fee is disproportionate and at variance             post of Deputy Director General, thereby infringing Articles 7,
with the case-law of the Court of Justice.                               25, 27, 29 and 45(1) of the Staff Regulations.
                                                                         Action brought on 17 July 2001 by Léon Rappe against
                                                                                the Commission of the European Communities
Action brought on 12 July 2001 by Alexandre Tilgenkamp
  against the Commission of the European Communities
                                                                                (Case T-160/01)
                         (Case T-158/01)
                                                                                (2001/C 289/65)
                         (2001/C 289/64)
                                                                                (Language of the case: French)
                   (Language of the case: French)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 17 July 2001 by Léon Rappe,
An action against the Commission of the European Communi-                residing in Orp-Jauche, Belgium, represented by Jean-Noël
ties was brought before the Court of First Instance of the               Louis and Véronique Peere, Lawyers, with an address for
European Communities on 12 July 2001 by Alexandre Tilgen-                service in Luxembourg.


title: Case C-583/08 P: Appeal brought on 24 December 2008 by Christos Gogos against the judgment delivered by the Court of First Instance (Seventh Chamber) on 15 October 2008 in Case T-66/04 Christos Gogos v Commission of the European Communities

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/39

         Appeal brought on 24 December 2008 by Christos Gogos against the judgment delivered by the Court of First Instance (Seventh Chamber) on 15 October 2008 in Case T-66/04 Christos Gogos v Commission of the European Communities
   (Case C-583/08 P)
   (2009/C 44/67)
   Language of the case: Greek
   Parties

      Appellant: Christos Gogos (represented by: N. Korogiannakis and P. Katsimani, lawyers)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought
   The appellant claims that the Court should:

               —

               set aside the judgment of the Court of First Instance;

               —

               annul the decision placing him in Grade A 7 and the decision of 24 November 2003 rejecting his administrative complaint;

               —

               exercise its unlimited jurisdiction and award compensation totalling EUR 538 121,79 in respect of the economic damage which results from the Commission's unlawful conduct in adopting the harmful decision at issue, and which has been aggravated by the administrative reform for the remainder of his expected life;

               —

               award compensation totalling EUR 50 000 for the long delay in delivery of the judgment at first instance;

               —

               order the defendant to pay the appellant's costs in respect of both the case before the Court of First Instance and the present proceedings.

         Pleas in law and main arguments
   In his appeal against the judgment of 15 October 2008 in Case T-66/04 Christos Gogos v Commission of the European Communities, the appellant Christos Gogos puts forward, first of all, two pleas to substantiate his claim that the judgment of the Court of First Instance should be set aside.
   First, the appellant complains of insufficient and mistaken reasoning in respect of five of the six pleas for annulment which he put forward as applicant.
   Secondly, the appellant submits that the length of the proceedings before the Court of First Instance is not justified by objective reasons. Furthermore, he has been harmed economically and has suffered non-material damage because of that delay.