title: Action brought on 4 November 1997 by the Commission of the European Communities against the Hellenic Republic (Case C-377/97)

text:
C 7/8                 EN                 Official Journal of the European Communities                                 10. 1. 98
Reference for a preliminary ruling by the Bayerische                of 16 September 1997, received at the Court Registry on
Verwaltungsgerichtshof by order of that court of                    4 November 1997, for a preliminary ruling in the case of
20 October 1997 in the case of Anton Feyrer against                 Bezirksregierung Lüneburg (Lüneburg District Authority)
Landkreis Rottal-Inn (also party: Landesanwaltschaft                v. Karl-Heinz Wettwer on the following question
       Bayern as representative of the public interest)             concering Regulation (EEC) No 805/68 (1) as amended by
                        (Case C-374/97)                             Regulation (EEC) No 571/89 (2) and Regulations (EEC)
                                                                    No 572/89 (3) and (EEC) No 719/89 (4):
                           (98/C 7/16)
                                                                    Is entitlement to a beef and veal producers' special
Reference has been made to the Court of Justice of the
                                                                    premium for the year 1991 transferred to a producer to
European Communities by order of the Bayerische
                                                                    whom, during the compulsory stock holding period, the
Verwaltungsgerichtshof (Bavarian Administrative Court)
                                                                    applicant transferred his agricultural holding by way of
of 20 October 1997, received at the Court Registry on
                                                                    anticipated succession and who carried out the prescribed
3 November 1997, for a preliminary ruling in the case of
                                                                    holding and fattening of the bovine animals in question?
Anton Feyrer v. Landkreis Rottal-Inn, represented by the
Landrat (also party: Landesanwaltschaft Bayern as
representative of the public interest) on the following             (1 ) OJ, English Special Edition 1968 (I) p. 187.
questions:                                                          (2 ) OJ L 61, 4. 3. 1989, p. 43.
                                                                    (3 ) OJ L 63, 7. 3. 1989, p. 1.
                                                                    (4 ) OJ L 79, 21. 3. 1989, p. 9.
1. Can an individual oppose the collection of fees higher
    than the standard amounts listed in point 1 of the
    Annex relating to Article 2 (1) of Council Directive
    85/73/EEC (1) as amended by Council Directive 93/
    118/EC (2) where the Member State has not
    transposed Directive 93/118/EC into national law
    within the prescribed period?                                   Action brought on 4 November 1997 by the Commission
                                                                    of the European Communities against the Hellenic
2. Can a Member State collect fees higher than the                                                Republic
    standard amounts in reliance in point 4 (b) of the
    Annex relating to Article 2 (1) of Council Directive                                     (Case C-377/97)
    85/73/EEC as amended by Directive 93/118/EC                                                 (98/C 7/18)
    provided that the fees levied do not exceed the actual
    costs, no further conditions being imposed?
                                                                    An action against the Hellenic Republic was brought
3. Is the authorization given to Member States under                before the Court of Justice of the European Communities
    Article 2 (3) of Council Directive 85/73/EEC as                 on 4 November 1997 by the Commission of the European
    amended by Directive 93/118/EEC to collect an                   Communities, represented by Maria Kondou-Durande, of
    amount exceeding the Community fees dependent on                its Legal Service, with an address for service in
    the total fee collected in the Member State as a whole          Luxembourg at the office of Carlos Gómez de la Cruz, of
    and the actual inspection costs in the Member State as          its Legal Service, Wagner Centre, Kirchberg.
    a whole or is it sufficient, when the Member State has
    delegated authorization to collect the fees to the local
    authorities, that the total fee collected by the local          The applicant claims that the Court should:
    authority is not greater than the actual inspection
    costs of that authority?
                                                                    Ð declare that, by not adopting within the prescribed
(1) OJ L 32, 5. 2. 1985, p. 14.                                          period the laws, regulations and administrative
(2) OJ L 340, 31. 12. 1993, p. 15.                                       provisions necessary to implement Council Directive
                                                                         93/120/EC (1) of 22 December 1993 amending
                                                                         Directive 90/539/EEC (2) on animal health conditions
                                                                         governing intra-Community trade in and imports from
                                                                         third countries of poultry and hatching eggs, the
                                                                         Hellenic Republic has failed to fulfil its obligations
Reference      for    a      preliminary  ruling    by    the            under the Treaty and that Directive,
Bundesverwaltungsgericht by order of that court of
16 September 1997 in the case of Bezirksregierung
           Lüneburg against Karl-Heinz Wettwer                      Ð order the Hellenic Republic to pay the costs.
                        (Case C-376/97)
                           (98/C 7/17)                              Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of                  The time limit for implementation of Directive 93/120/EC
the European Communities by order of the                            expired on 1 January 1995. The Commission notes that
Bundesverwaltungsgericht (Federal Administrative Court)             the Hellenic Republic still has not adopted the appropriate
 ---pagebreak--- 10. 1. 98              EN                     Official Journal of the European Communities                                     C 7/9
measures to incorporate the Directive at issue fully into                Does the application of paragraph 17 (1) (2b) or (5)
Greek law. It thus seeks a declaration that the Hellenic                 of the Lebensmittel- und Bedarfsgegenständegesetz in
Republic has committed that infringement.                                conjunction with Numbers 2.19/2.3411 et seq. of the
                                                                         Leitsätze für Fleisch und Fleischerzeugnisse of the German
(1) OJ L 340, 31. 12. 1993, p. 35.                                       Lebensmittelbuch by the Landkreis Grafschaft Bentheim
(2) OJ L 303, 31. 10. 1990, p. 6.                                        or the Staatsanwaltschaft Osnabrück in the present case
                                                                         contravene Article 30 et seq. of the EEC Treaty, that is,
                                                                         the prohibition of discrimination laid down there?
Reference for a preliminary ruling from the Administrative
Court by order of that court of 22 October 1997 in the
case of Dr Gerhard Köbler v. Federal Minister for Science,               Action brought on 12 November 1997 by the Commission
                   Research and Technology                               of the European Communities against the Hellenic
                        (Case C-382/97)                                                              Republic
                           (98/C 7/19)                                                          (Case C-386/97)
                                                                                (98/C 7/21)
Reference has been made to the Court of Justice of the
European       Communities        by     an     order     of   the
Verwaltungsgerichtshof         (Administrative        Court)    of       An action against the Hellenic Republic was brought
22 October 1997, which was received at the Court                         before the Court of Justice of the European Communities
Registry on 7 November 1997, for a preliminary ruling in                 on 12 November 1997 by the Commission of the
the case of Dr Gerhard Köbler v. Federal Minister for                    European Communities, represented by Maria Kondou-
Science, Research and Technology on the following                        Durande, of its Legal Service, with an address for service
question:                                                                in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                         also of its Legal Service, Wagner Centre, Kirchberg.
Can a right be derived from Article 48 of the EC Treaty
and Articles 1 to 3 of Regulation (EEC) No 1612/68 (1),
                                                                         The applicant claims that the Court should:
which lay down the right of workers to freedom of
movement and to access to the labour market in the
Community, to the effect that, in a salary scheme in which
remuneration depends on, inter alia, length of service,                  Ð declare that, by not adopting within the prescribed
work of equal value which was performed in another                           period the laws, regulations and administrative
Member State must be taken into account in exactly the                       provisions necessary to implement Council Directive
same way as such work performed in the Member State                          95/23/EC of 22 June 1995 amending Directive 64/433/
applying that scheme?                                                        EEC on conditions for the production and marketing
                                                                             of fresh meat (1), the Hellenic Republic has failed to
                                                                             fulfil its obligations under the Treaty and that
(1) OJ, English Special Edition 1968 (II), p. 475.
                                                                             Directive;
                                                                         Ð order the Hellenic Republic to pay the costs.
Reference for a preliminary ruling from the Amtsgericht                  Pleas in law and main arguments adduced in support:
Nordhorn by decision of that court of 30 October 1997 in
the administrative criminal proceedings against Arnoldus
                Theodorus Maria van der Laan                             Under the third paragraph of Article 189 of the EC Treaty,
                        (Case C-383/97)                                  directives are binding, as to the result to be achieved,
                                                                         upon each Member State to which they are addressed.
                           (98/C 7/20)
                                                                         When the time limit for the transposition of the Directive
                                                                         at issue into national law expired on 1 July 1995, the
                                                                         Hellenic Republic had not adopted appropriate measures
Reference has been made to the Court of Justice of the                   for its full incorporation into Greek law.
European Communities by a decision of the Amtsgericht
Nordhorn (Nordhorn Local Court) of 30 October 1997,
which was received at the Court Registry on 10 November                  (1) OJ L 243, 11. 10. 1995, p. 7.
1997, for a preliminary ruling in the administrative
criminal proceedings against Arnoldus Theodorus Maria
van der Laan on the following question:


C 118/22                EN                     Official Journal of the European Communities                                  21.4.2001
Reference for a preliminary ruling by the French Conseil                         Removal from the register of Case C-343/99 (1)
d’État, judicial section, by judgment of that court of
29 January 2001 in the case of Malika Tennah-Durez
   against the Conseil National de l’Ordre des Médecins                                          (2001/C 118/37)
                                                                          By order of 25 July 2000 the President of the Court of Justice
                          (Case C-110/01)                                 of the European Communities has ordered the removal from
                                                                          the register of Case C-343/99: Kingdom of the Netherlands v
                                                                          Commission of the European Communities.
                          (2001/C 118/36)
                                                                          (1) OJ C 352 of 4.12.1999.
Reference has been made to the Court of Justice of the
European Communities by judgment of the French Conseil
d’État (Council of State), judicial section, of 29 January 2001,
received at the Court Registry on 9 March 2001, for a
preliminary ruling in the case of Malika Tennah-Durez against
the Conseil National de l’Ordre des Médecins (National Council
of the Medical Association) on the following questions:
1.    Are the provisions of Article 23(2) of Council Directive                   Removal from the register of Case C-157/98 (1)
      93/16/EEC of 5 April 1993 (1) relating to the period of
      medical training that a doctor who is a national of a
                                                                                (2001/C 118/38)
      Member State must have completed, comprising at least
      a six-year course or 5 500 hours of theoretical and
      practical instruction given in a university or under the            By order of 2 August 2000 the President of the Court of Justice
      supervision of a university, to be understood as meaning            of the European Communities has ordered the removal from
      training completed, in its entirety, only in a university of        the register of Case C-157/98: Kingdom of the Netherlands v
      a Member State of the Community or under the super-                 Commission of the European Communities.
      vision of such a university, or do they allow all or part of
      any training received in a third country to be taken into
      account?
                                                                          (1) OJ C 258 of 15.8.1998.
2.    Are the national authorities bound by the certificate
      provided, pursuant to Article 9(5) of the directive, by the
      competent authorities of the Member State in which the
      diploma submitted by the person concerned was awarded,
      which states that the diploma is treated as one of the
      qualifications or designations set out in Article 3, 5 or 7
      of the directive and was awarded following training in
      accordance with the provisions of Title III thereof, or may
      they make their own assessment of the said certificate                     Removal from the register of Case C-410/99 (1)
      in the light of, in particular, the minimum training
      requirements prescribed by the directive and required by
      national legislation in order, in some circumstances, to                                   (2001/C 118/39)
      consider whether, despite the terms of the certificate so
      issued, the training received by the person concerned
      meets the requirements of the directive?                            By order of 2 August 2000 the President of the Court of Justice
                                                                          of the European Communities has ordered the removal from
                                                                          the register of Case C-410/99: (reference for a preliminary
                                                                          ruling from Kantongerecht te Groningen): Kamer van
(1) Council Directive 93/16/EEC of 5 April 1993 to facilitate the free    Koophandel en Fabrieken voor Groningen v Challenger Trad-
    movement of doctors and the mutual recognition of their               ing Company Ltd.
    diplomas, certificates and other evidence of formal qualifications
    (OJ L 165, 7.7.1993, p. 1).
                                                                          (1) OJ C 20 of 22.1.2000.


title: Case F-76/10: Order of the Civil Service Tribunal (Third Chamber) of 28 June 2011 — Colart and Others v Parliament (Civil Service — Annual adjustment of the remuneration and pensions of officials and other servants — No need to adjudicate)

text:
               2.6.2012

               EN

               Official Journal of the European Union

               C 157/12

         Order of the Civil Service Tribunal (Third Chamber) of 28 June 2011 — Colart and Others v Parliament
   (Case F-76/10) (1)

   (Civil Service - Annual adjustment of the remuneration and pensions of officials and other servants - No need to adjudicate)
   2012/C 157/21
   Language of the case: French

      Parties

      Applicants: Philippe Colart and Others (Bastogne, Belgium) (represented by: C. Mourato, lawyer)

      Defendant: European Parliament (represented by: S. Seyr and K. Zejdová, Agents)

      Re:

   Claim for annulment of the applicants’ salary adjustment slips for the period from July to December 2009 and in the salary slips issued since 1 January 2010 within the framework of the annual adjustment of the remuneration and pensions of officials and other servants pursuant to Council Regulation (EU, Euratom) No 1296/2009 of 23 December 2009.

      Operative part of the order

               1.

               There is no need to adjudicate on case F-76/10 Colart and Others v Parliament.

               2.

               Each party is ordered to bear its own costs.

      (1)  OJ C 301. 6.11.2010, p. 64.


title: Case C-553/03 P: Appeal brought on 30 December 2003 by the Panhellenic Union of Cotton Ginners and Exporters against the judgment delivered on 16 October 2003 by the Fifth Chamber (Extended Composition) of the Court of First Instance of the European Communities in case T-148/00 between the Panhellenic Union of Cotton Ginners and Exporters and the Commission of the European Communities, supported by the Hellenic Republic

text:
C 59/14                EN                         Official Journal of the European Union                                         6.3.2004
Commission of the European Communities, was brought                             adequate reasons as to why Bronner is not relevant to the
before the Court of Justice of the European Communities on                      present case.
29 December 2003 by Unilever Bestfoods (Ireland) Ltd,
formerly HB Ice Cream Ltd, established in Dublin (Ireland),
represented by M. Nicholson, M. Rowe, M. Biesheuvel and                   (1) OJ C 234, 25.07.1998, p. 28.
M. de Grave, lawyers, with an address for service in Luxem-
bourg.
The Appellant claims that the Court should:
(a)   set aside — in its entirety or partially — the judgment of          Appeal brought on 30 December 2003 by the Panhellenic
      the Court of First Instance (Fifth Chamber) of 23 October           Union of Cotton Ginners and Exporters against the
      2003 in case T-65/98, excluding paragraph 3 of the                  judgment delivered on 16 October 2003 by the Fifth
      operative part of the judgment; and                                 Chamber (Extended Composition) of the Court of First
                                                                          Instance of the European Communities in case T-148/
                                                                          00 (1) between the Panhellenic Union of Cotton Ginners
(b) annul — in its entirety or partially — the Commission                 and Exporters and the Commission of the European
      Decision in Case Nos. IV/34.073, IV/34.395 and IV/                       Communities, supported by the Hellenic Republic
      35.946 relating to a proceeding under Articles 81
      (formerly 85) and 82 (formerly 86) of the Treaty (Van
      den Bergh Foods Ltd) or, alternatively, refer the case back                                 (Case C-553/03 P)
      to the Court of First Instance; and
                                                                                (2004/C 59/24)
(c)   order the Commission to pay the Applicant’s costs at first
      instance and in this Application on appeal.
                                                                          An appeal against the judgment delivered on 16 October 2003
                                                                          by the Fifth Chamber (Extended Composition) of the Court of
                                                                          First Instance of the European Communities in case T-148/00
                                                                          between the Panhellenic Union of Cotton Ginners and
Pleas in law and main arguments
                                                                          Exporters and the Commission of the European Communities,
                                                                          supported by the Hellenic Republic, was brought before the
                                                                          Court of Justice of the European Communities on 30 December
The Appellant submits that the Court of First Instance erred in           2003 by the Panhellenic Union of Cotton Ginners and
law by concluding that the distribution agreements of Van den             Exporters, established in Thessaloniki (Greece), represented by
Bergh Foods Ltd (formerly HB Ice Cream Ltd) are liable to have            K. Adamantopoulos and J. Gutiérrez Gisbert, lawyers, with an
an appreciable effect on competition for the purposes of                  address for service in Luxembourg.
Article 81(1) of the Treaty and contribute significantly to a
foreclosure of the market.
                                                                          The Appellant claims that the Court should:
                                                                          1.    set aside the judgment of the Court of First Instance of
The Appellant also submits that the Court of First Instance                     16 October 2003 in case T-148/00 which dismissed the
erred in law when applying Article 81(3) of the Treaty. It                      original application of the Appellant before the Court of
wrongly applied the relevant burden and standard of proof                       First Instance as inadmissible and ordered the Appellant
and, in so doing, rendered its judgment inadequatly reasoned.                   to bear its own costs and those of the European Com-
                                                                                mission in relation to the action before the Court of First
                                                                                Instance;
Finally, it is submitted that the Court of First Instance erred in        2.    as requested originally before the Court of First Instance,
law in two respects when applying Article 82 of the Treaty:                     annul Article 1 of the Commission Decision (2000/206/
                                                                                EC) (2) on an aid scheme applied in Greece to cotton by
                                                                                the Greek Cotton Board, in so far as it only declares
—     it drew legal inferences which were unwarranted and
                                                                                Article 30(3) of Law 2040/92 of 17/23.4.1992, and not
      inadequately reasoned and cannot, therefore, support a
                                                                                Article 30(1) as well, incompatible with the common
      conclusion as to the abusive nature of the inducement;
                                                                                market; and
      and
                                                                          3.    order that the costs of and occasioned by these proceed-
—     it failed to apply the legal principles advanced by the                   ings, and those before the Court of First Instance, be
      Court in Bronner or, in the alternative, failed to give                   borne by the European Commission.
 ---pagebreak--- 6.3.2004                  EN                        Official Journal of the European Union                                         C 59/15
Pleas in law and main arguments                                             Reference for a preliminary ruling by the Rechtbank
                                                                            Utrecht, Sector kanton, Locatie Utrecht, by order of that
                                                                            Court of 10 December 2003 in the case of POSEIDON
                                                                            CHARTERING B.V. against 1. V.O.F. Marianne Zeeschip,
The present appeal is based on the following two grounds of                 2. ALBERT MOOIJ, 3. SJOERDTJE SIJSWERDA, 4. GER-
law:                                                                                RIT DANIEL SCHRAM
(i)   Manifest error in that the judgment of the Court of First                                      (Case C-3/04)
      Instance states that the Appellant’s principal objection
      relates to the validity of the Commission’s finding that
      the Compensatory levy is compatible with the common                                           (2004/C 59/25)
      market organisation for cotton and therefore the original
      Application of the Appellant is inadmissible — should
      this finding be upheld it would inevitably result in an
      infringement of the rights to access to justice of the
      Appellant.                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Rechtbank Utrecht,
                                                                            Sector kanton, Locatie Utrecht, of 10 December 2003, received
      This is because the Appellant did not have any other                  at the Court Registry on 5 January 2004, for a preliminary
      option but to challenge the deficient finding of the                  ruling in the case of POSEIDON CHARTERING B.V. against 1.
      operative part of Article 1 of the contested Decision,                V.O.F. Marianne Zeeschip, 2. ALBERT MOOIJ, 3. SJOERDTJE
      which implicitly refers to the last paragraph of Section IV           SIJSWERDA, 4. GERRIT DANIEL SCHRAM on the following
      of the contested Decision which states that the Com-                  questions:
      pensatory levy of Article 30(1) of Law 2040/92 is
      ‘consonant with the market organisation’. The contested
                                                                            1.   Is a self-employed intermediary, who has arranged (not
      Decision is deficient in that the Commission failed to
                                                                                several but) one contract (a charter for a ship) which is
      fulfil its duty to analyse the activities of the Greek Cotton
                                                                                renewed every year and pursuant to which, in respect of
      Board financed by the compensatory levy of Article 30(1)
                                                                                the renewal of the charter, the annual freight negotiations
      of Law 2040/92 under the EC State aid rules; and
                                                                                (except, during the period from 1994 to 2000, in 1999)
                                                                                are conducted between the owner of the ship and a third
                                                                                party and the outcome of those negotiations is recorded
(ii) The judgment of the Court of First Instance is erroneous                    by the intermediary in an addendum, to be regarded as a
      in law and contrary to the case-law of the Court of Justice                commercial agent within the meaning of Council Direc-
      of the European Communities.                                               tive 86/653/EEC (1) of 18 December 1986 on the coordi-
                                                                                nation of the laws of the Member States relating to self-
                                                                                employed commercial agents?
      The Appellant submits that the judgment of the Court of
      First Instance is contrary to the case-law of the Court of            2.   Does it make any difference to the answer to Question 1
      Justice of the European Communities in that the judgment                   that the intermediary works for two principals because
      states that (i) ‘it is obvious’ that the Compensatory levy of              the intermediary already knew the third party between
      Article 30(1) of Law 2040/92 neither constitutes State                     1987 and 1994 and transacted business in respect of the
      aid nor contains a State aid component — the reason                        abovementioned charter for the same ship? If an agency
      being that in the Court of First Instance’s opinion the                    contract must be held to exist, does it make any
      Compensatory levy of Article 30(1) of Law 2040/92 is                       difference to the answer to Question 1 that an indemnity
      ‘merely one of two State aid financing methods granted                     (commission) of 2,5 % of the charter has been paid over
      by the Greek Cotton Board’; and (ii) that it is erroneous                  many years and/or that Article 7(1) of the Directive
      to equate the Compensatory levy of Article 30(1) of Law                    refers to ‘commercial transactions concluded’ and to the
      2040/92 ‘with State aid’. This is because the Compensa-                    existence of an entitlement to (the) commission ‘where
      tory levy of Article 30(1) of Law 2040/92 constitutes                      the transaction is concluded with a third party whom he
      State aid within the meaning of the Enirisorse and Van                     has previously acquired as a customer for transactions of
      Calster case-law.                                                          the same kind’?
                                                                            3.   Does is make any difference to the answer to Question 1
                                                                                that Article 17 of the Directive refers to ‘customers’
(1) OJ C 259, 09.09.2000, p. 24.                                                 instead of customer?
(2) OJ 2000, L 63, p. 27.
                                                                            (1) OJ L 382 of 31.12.1986, p. 17.


title: Case C-406/12: Action brought on 4 September 2012 — European Commission v Republic of Slovenia

text:
               27.10.2012

               EN

               Official Journal of the European Union

               C 331/15

      Action brought on 4 September 2012 — European Commission v Republic of Slovenia
      (Case C-406/12)
      (2012/C 331/24)
      Language of the case: Slovene

         Parties

         Applicant: European Commission (represented by P. Hetsch, L. Nicolae and M. Žebre, acting as Agents)

         Defendant: Republic of Slovenia

         Form of order sought

      The Commission claims that the Court should:

                  —

                  Declare that, by failing to adopt all the laws and other measures necessary to transpose Directive 2009/136/EC (1) of the European Parliament and of the Council of 25 November 2009 amending Directive 2002/22/EC (2) on universal service and users’ rights relating to electronic communications networks and services, Directive 2002/58/EC (3) concerning the processing of personal data and the protection of privacy in the electronic communications sector and Regulation (EC) No 2006/2004 on cooperation between national authorities responsible for the enforcement of consumer protection laws or, in any case, by failing to notify the Commission of such provisions, the Republic of Slovenia has failed to fulfil its obligations under Article 4 of that directive;

                  —

                  order the Republic of Slovenia, pursuant to Article 260(3) TFEU, to make a penalty payment in the sum of EUR 6 531,84 a day, from the day of delivery of judgment in this case, on the grounds of its failure to fulfil its obligation to notify all measures for the transposition of Directive 2009/136/EC;

                  —

                  order the Republic of Slovenia to pay the costs.

         Pleas in law and main arguments

      The period prescribed for transposition of that directive expired on 25 May 2011.

         (1)  OJ 2009 L 337, p. 11.

         (2)  OJ 2002 L 108, p. 51.

         (3)  OJ 2002 L 201, p. 37.


title: Judgment of the Court of 21 September 1999 in Case C-307/97 (reference for a preliminary ruling from the Finanzgericht Köln): Compagnie de Saint-Gobain, Zweigniederlassung Deutschland v Finanzamt Aachen-Innenstadt (Freedom of establishment - Taxes on companies' income - Tax concessions)

text:
18.12.1999              EN                       Official Journal of the European Communities                                            C 366/9
Articles 85, 86 and 90 of the EC Treaty (now Articles 81 EC,                                  JUDGMENT OF THE COURT
82 EC and 86 EC) — the Court, composed of: G.C. Rodrı́guez
Iglesias, President, J.-P. Puissochet, G. Hirsch and P. Jann, Presi-                              of 21 September 1999
dents of the Chambers, J.C. Moitinho de Almeida (Rapporteur),
C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm,                       in Case C-307/97 (reference for a preliminary ruling from
L. Sevón and M. Wathelet, Judges; F.G. Jacobs, Advocate Gen-               the Finanzgericht Köln): Compagnie de Saint-Gobain,
eral; D. Louterman-Hubeau, Principal Administrator, for the                 Zweigniederlassung Deutschland v Finanzamt Aachen-
Registrar, has given a judgment on 21 September 1999, in                                                 Innenstadt (1)
which it has ruled:
                                                                            (Freedom of establishment — Taxes on companies’ income
                                                                                — Tax concessions)
1. A decision taken by organisations representing employers and                                        (1999/C 366/14)
    workers in a given sector, in the context of a collective agreement,
    to set up in that sector a single pension fund responsible for
    managing a supplementary pension scheme and to request the                                  (Language of the case: German)
    public authorities to make affiliation to that fund compulsory for
    all workers in that sector does not fall within the scope of
    Article 85 of the EC Treaty (now Article 81 EC).                        (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                                                                            In Case C-307/97: reference to the Court under Article 177 of
                                                                            the EC Treaty (now Article 234 EC) from the Finanzgericht
2. Article 3(g) of the EC Treaty (now, after amendment,                     Köln, Germany, for a preliminary ruling in the proceedings
    Article 3(1)(g) EC), Article 5 of the EC Treaty (now Article 10         pending before that court between Compagnie de Saint-
    EC) and Article 85 of the Treaty do not prohibit a decision by          Gobain, Zweigniederlassung Deutschland and Finanzamt
    the public authorities to make affiliation to a sectoral pension        Aachen-Innenstadt — on the interpretation of Article 52 of
    fund compulsory at the request of organisations representing            the EC Treaty (now, after amendment, Article 43 EC) and
    employers and workers in a given sector.                                Article 58 of the EC Treaty (now Article 48 EC) — the Court,
                                                                            composed of: G.C. Rodrı́guez Iglesias, President, P.J.G. Kapteyn
                                                                            and G. Hirsch, Presidents of the Chambers, J.C. Moitinho de
                                                                            Almeida, C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragne-
                                                                            malm, L. Sevón, M. Wathelet (Rapporteur) and R. Schintgen,
3. A pension fund charged with the management of a supplementary
                                                                            Judges; J. Mischo, Advocate General; L. Hewlett, Administrator,
    pension scheme set up by a collective agreement concluded
                                                                            for the Registrar, has given a judgment on 21 September
    between organisations representing employers and workers in a
                                                                            1999, in which it has ruled:
    given sector, to which affiliation has been made compulsory by
    the public authorities for all workers in that sector, is an
    undertaking within the meaning of Article 85 et seq. of the             Article 52 of the EC Treaty (now, after amendment, Article 43 EC)
    Treaty.                                                                 and Article 58 of the EC Treaty (now Article 48 EC) preclude the
                                                                            exclusion of a permanent establishment in Germany of a company
                                                                            limited by shares having its seat in another Member State from
                                                                            enjoyment, on the same conditions as those applicable to companies
                                                                            limited by shares having their seat in Germany, of tax concessions
4. Articles 86 and 90 of the EC Treaty (now Articles 82 EC and              taking the form of:
    86 EC) do not preclude the public authorities from conferring on
    a pension fund the exclusive right to manage a supplementary            — an exemption from corporation tax for dividends received from
    pension scheme in a given sector.                                           companies established in non-member countries (corporation tax
                                                                                relief for international groups), provided for by a treaty for the
                                                                                avoidance of double taxation concluded with a non-member
                                                                                country,
                                                                            — the crediting, against German corporation tax, of the corporation
                                                                                tax levied in a State other than the Federal Republic of Germany
(1) OJ No C 228 of 26.7.1997.                                                   on the profits of a subsidiary established there, provided for by
                                                                                German legislation, and
                                                                            — an exemption from capital tax for shareholdings in companies
                                                                                established in non-member countries (capital tax relief for
                                                                                international groups), also provided for by German legislation.
                                                                            (1) OJ No C 318 of 18.10.1997.


title: Case C-364/05: Action brought on  27 September 2005  by Commission of the European Communities against the Kingdom of the Netherlands

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/17

         Action brought on 27 September 2005 by Commission of the European Communities against the Kingdom of the Netherlands
   (Case C-364/05)
   (2005/C 296/31)
   Language of the case: Dutch
   An action against the Kingdom of the Netherlands was brought before the Court of Justice of the European Communities on 27 September 2005 by the Commission of the European Communities, represented by Michel van Beek, acting as Agent, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               Declare that the Kingdom of the Netherlands,
               by failing to adopt the legislative and administrative measures necessary to comply with Directive 2001/20/EC (1) of the European Parliament and of the Council of 4 April 2001 on the approximation of the laws, regulations and administrative provisions of the Member States relating to the implementation of good clinical practice in the conduct of clinical trials on medicinal products for human use
               by failing to adopt the legislative and administrative measures necessary to comply with Commission Directive 2003/94/EC (2) of 8 October 2003 laying down the principles and guidelines of good manufacturing practice in respect of medicinal products for human use and investigational medicinal products for human use
               or in any event by failing to notify such measures to the Commission
               has failed to fulfil its obligations under those directives;

               —

               order the Kingdom of the Netherlands to pay the costs

         Pleas in law and main arguments
   The first paragraph of Article 22 of Directive 2001/20 provides that Member States are to bring the necessary legislative and administrative measures for complying with the directive into force by 1 May 2003 and inform the Commission accordingly. In the case of Directive 2003/94, Article 17 sets the deadline at 30 April 2004.

      (1)  OJ 2001 L 121, p. 34.

      (2)  OJ 2003 L 262, p. 22.


title: Case F-118/14: Action brought on 23 October 2014  — ZZ v Council

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/48

         Action brought on 23 October 2014 — ZZ v Council
   (Case F-118/14)
   (2015/C 026/64)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: C. Garcia-Hirschfeld)

      Defendant: Council of the European Union

      Subject-matter and description of the proceedings

   Annulment of Council decisions on the classification of officials in grades AD 9 to AD 14 occupying posts identified as holding special responsibilities in the type of post ‘Head of unit or equivalent’ or ‘Adviser or equivalent’ before 31 December 2015 and not placing the applicant among the officials so classified.

      Form of order sought

   The applicant claims that the Tribunal should:

               —

               annul the decision Noo6/14 of the appointing authority of 3 January 2014 and the subsequent decision to assign 34 Council officials to the type of post ‘Head of unit or equivalent’;

               —

               annul, if necessary, the decision of 23 July 2014 rejecting the complaint;

               —

               order the Council of the European Union to pay the costs.


title: Case C-331/03: Action brought on 28 July 2003 by the Commission of the European Communities against the French Republic

text:
C 213/24              EN                        Official Journal of the European Union                                        6.9.2003
Action brought on 23 July 2003 by the Commission of                     Action brought on 24 July 2003 by the Commission of
the European Communities against Huhtamaki Dourdan                                the European Communities against Ireland
                                SA
                                                                                (Case C-322/03)
                        (Case C-315/03)
                                                                                (2003/C 213/45)
                        (2003/C 213/44)
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 24 July 2003 by the
                                                                        Commission of the European Communities, represented by
                                                                        Nicola Yerrell, acting as agent, with an address for service in
An action against Huhtamaki Dourdan SA was brought before               Luxembourg.
the Court of Justice of the European Communities on 23 July
2003 by the Commission of the European Communities,
represented by C. Giolito, acting as Agent, with an address for         The Applicant claims that the Court should:
service in Luxembourg.
                                                                        a)    find that Ireland has failed its obligations under the EC
                                                                              Treaty by failing to adopt the laws, regulations and
                                                                              administrative provisions necessary to comply with
The Commission of the European Communities claims that
                                                                              Council Directive 1999/63/EC of 21st June 1999 con-
the Court should order the defendant:
                                                                              cerning the Agreement on the organisation of working
                                                                              time of seafarers concluded by the European Shipowners’
1.    to pay the applicant a sum of EUR 162 342,42 (One                       Association (ECSA) and the Federation of Transport
      hundred and sixty-two thousand three hundred and                        Workers’ Unions in the European Union (FST) (1), or by
      forty-two euros and forty-two cents) corresponding to                   failing to ensure that management and labour have
      EUR 151 433,47 in respect of the principal and to                       introduced the necessary measures by agreement, and/or
      EUR 10 808,95 in respect of accrued interest for delay                  by failing to inform the Commission thereof; and
      up to 6 June 2003;
                                                                        b)    condemn Ireland to bear the costs of the procedure.
2.    to pay EUR 28,27 (Twenty-eight euros and twenty-seven
      cents) per day in respect of interest accrued at the same
      rate from 6 June 2003 until payment in full;                      Pleas in law and main arguments
3.    to pay the costs of this case.
                                                                        The period within which the directive had to be transposed
                                                                        expired on 30 June 2002.
                                                                        (1 ) OJ L 167, 02.07.1999, p. 33.
Pleas in law and main arguments
The court with jurisdiction in this case is the Court of Justice,
notwithstanding the wording of the arbitration clause since
that cannot have been intended to change or have the effect of
changing the division of jurisdiction between the Court of              Action brought on 28 July 2003 by the Commission of
Justice and the Court of First Instance as provided for by the           the European Communities against the French Republic
Treaty.
                                                                                (Case C-331/03)
In refusing to produce the evidence of costs requested by the                                    (2003/C 213/46)
Commission, the defendant has failed to fulfil its obligation
under the contract concluded pursuant to the provisions of
the specific programme for research and development in the
field of industrial and materials technologies and is liable to         An action against the French Republic was brought before the
repay the amount of the advance to the Commission.                      Court of Justice of the European Communities on 28 July
                                                                        2003 by the Commission of the European Communities,
                                                                        represented by M. Konstantinidis and F. Simonetti, acting as
                                                                        Agents, with an address for service in Luxembourg.
 ---pagebreak--- 6.9.2003                 EN                        Official Journal of the European Union                                          C 213/25
The Commission of the European Communities claims that                     ties on 30 July 2003 by the Commission of the European
the Court should:                                                          Communities, represented by Marie-José Jonczy, acting as
                                                                           Agent, with an address for service in Luxembourg.
1.    declare that, by failing to adopt the necessary laws,
      regulations and administrative provisions to comply with
      Directive 2000/53/EC of the European Parliament and
      of the Council of 18 September 2000 on end-of-life                   The Commission of the European Communities claims that
      vehicles (1), or, in any event by not communicating those            the Court should:
      provisions to the Commission, the French Republic has
      failed to fulfil its obligations under that directive;               1.    declare that, by failing to adopt the necessary laws,
                                                                                regulations and administrative provisions to comply with
2.    order the French Republic to pay the costs.                                Council Directive 98/50/EC of 29 June 1998 amending
                                                                                Directive 77/187/EEC on the approximation of the laws
Pleas in law and main arguments                                                  of the Member States relating to the safeguarding of
                                                                                employees’ rights in the event of transfers of undertakings,
The prescribed period for implementing the directive expired                     businesses or parts of businesses (1), or, in any event by
on 21 April 2002.                                                                not communicating those provisions to the Commission,
                                                                                the Grand-Duchy of Luxembourg has failed to fulfil its
( 1) OJ No L 269, 21.10.2000, p. 34.                                             obligations under that directive;
                                                                           2.    order the Grand-Duchy of Luxembourg to pay the costs.
Action brought on 30 July 2003 by the Commission of
the European Communities against the Grand-Duchy of
                             Luxembourg                                    Pleas in law and main arguments
                           (Case C-333/03)
                                                                           The prescribed period for implementing the directive expired
                           (2003/C 213/47)                                 on 17 July 2001.
An action against the Grand-Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-               (1 ) OJ No L 201, 17.7.1998, p. 88.


title: Case T-580/10: Action brought on 22 December 2010 — Wohlfahrt v OHIM — Ferrero (Kindertraum)

text:
               26.2.2011

               EN

               Official Journal of the European Union

               C 63/29

         Action brought on 22 December 2010 — Wohlfahrt v OHIM — Ferrero (Kindertraum)
   (Case T-580/10)
   2011/C 63/55
   Language in which the application was lodged: German

      Parties

      Applicant: Harald Wohlfahrt (Rothenburg o.d. Tauber, Germany) (represented by: N. Scholtz-Recht, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Ferrero SpA (Alba, Italy)

      Form of order sought

               —

               Annul the decision of the Opposition Division of 27 May 2009 (Opposition No B 668 600) and the decision of the Board of Appeal of 20 October 2010 in Case R 815/2009-4;

               —

               Order that Community trade mark ‘Kindertraum’, application No 002773059, be registered also for all goods applied for in Classes 16 and 28;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: Word mark ‘Kindertraum’ for goods in Classes 15, 16, 20, 21 and 28.

      Proprietor of the mark or sign cited in the opposition proceedings: Ferrero SpA.

      Mark or sign cited in opposition: A total of 32 older marks which, in part figuratively, in part as a component of a multi-word mark and in part as a single word, contain the word ‘kinder’, in particular the Italian word mark ‘kinder’ for goods and services in Classes 9, 16, 28, 30 and 42.

      Decision of the Opposition Division: Upheld the opposition and refused registration.

      Decision of the Board of Appeal: Dismissed the appeal.

      Pleas in law: Infringement of Article 42(2) of Regulation (EC) No 207/2009 (1) on the ground of missing evidence of use after expiry of the period of protected use during the opposition proceedings. Formal lack of grounds for the contested decision, since the Board of Appeal, in its decision, failed to examine the abusive trade mark application alleged in the grounds for the appeal and extensively supported by evidence. Further, an abusive trade mark application, since the sole aim of the proprietors of the opposing mark is to monopolise the term ‘kinder’ in the widest possible manner. Finally, infringement of Article 8(1)(b) of Regulation (EC) No 207/2009, since there is no likelihood of confusion between the marks at issue.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case C-94/12: Judgment of the Court (Fifth Chamber) of 10 October 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Swm Costruzioni 2 SpA, Mannocchi Luigino DI v Provincia di Fermo (Public contracts — Directive 2004/18/EC — Economic and financial standing — Technical and/or professional ability — Articles 47(2) and 48(3) — Right of an economic operator to rely on the capacities of other entities — Article 52 — Certification system — Public works contracts — National legislation requiring possession of a qualification certificate corresponding to the category and the value of the works covered by the contract — Prohibition on reliance on the certificates of more than one entity for works within the same category)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/22

         Judgment of the Court (Fifth Chamber) of 10 October 2013 (request for a preliminary ruling from the Tribunale amministrativo regionale per le Marche — Italy) — Swm Costruzioni 2 SpA, Mannocchi Luigino DI v Provincia di Fermo
   (Case C-94/12) (1)

   (Public contracts - Directive 2004/18/EC - Economic and financial standing - Technical and/or professional ability - Articles 47(2) and 48(3) - Right of an economic operator to rely on the capacities of other entities - Article 52 - Certification system - Public works contracts - National legislation requiring possession of a qualification certificate corresponding to the category and the value of the works covered by the contract - Prohibition on reliance on the certificates of more than one entity for works within the same category)
   2013/C 344/36
   Language of the case: Italian

      Referring court

   Tribunale amministrativo regionale per le Marche

      Parties to the main proceedings

      Applicants: Swm Costruzioni 2 SpA, Mannocchi Luigino DI

      Defendant: Provincia di Fermo

      Intervening party: Torelli Dottori SpA

      Re:

   Request for a preliminary ruling — Tribunale amministrativo regionale per le Marche — Interpretation of Article 47(2) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts (OJ 2004 L 134, p. 114) — Economic and financial standing of the economic operator — Right to rely on the capacities of other entities — National legislation limiting that right to one other entity for each qualification category required by the certification body

      Operative part of the judgment

   Articles 47(2) and 48(3) of Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts, read in conjunction with Article 44(2) of that directive, must be interpreted as precluding a national provision, such as that at issue in the main proceedings, which prohibits, as a general rule, economic operators participating in a tendering procedure for a public works contract from relying on the capacities of more than one undertaking for the same qualification category.

      (1)  OJ C 151, 26.5.2012.


title: Case C-471/99: Reference for a preliminary ruling by the Sozialgericht Nürnberg by order of that court of 22 November 1999 in the case of (1) Alfredo Martinez Dominguez, (2) Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen Dolores Calvo Fernandez against Bundesanstalt für Arbeit, Kindergeldkasse

text:
C 122/6                 EN                     Official Journal of the European Communities                                      29.4.2000
Reference for a preliminary ruling by the Sozialgericht                   Action brought on 6 January 2000 by the Government of
Nürnberg by order of that court of 22 November 1999 in                    the Kingdom of Denmark against the Commission of the
the case of (1) Alfredo Martinez Dominguez, (2) Joaquin                                        European Communities
Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen
Dolores Calvo Fernandez against Bundesanstalt für
                                                                                (Case C-3/00)
                     Arbeit, Kindergeldkasse
                                                                                (2000/C 122/11)
                          (Case C-471/99)
                                                                          An action against the Commission of the European Communi-
                          (2000/C 122/10)                                 ties was brought before the Court of Justice of the European
                                                                          Communities on 6 January 2000 by the Government of
                                                                          the Kingdom of Denmark, represented by Jørgen Molde,
Reference has been made to the Court of Justice of the                    Kontorchef in the Danish Ministry of Foreign Affairs, acting as
European Communities by order of the Sozialgericht Nürnberg               Agent, with an address for service in Luxembourg at the Royal
(Social Court, Nuremberg) of 22 November 1999, received at                Danish Embassy, 4 Boulevard Royal. The applicant claims that
the Court Registry on 9 December 1999, for a preliminary                  the Court should:
ruling in the case of (1) Alfredo Martinez Dominguez, (2)
Joaquin Benitez Urbano, (3) Agapito Mateos Cruz, (4) Carmen               — Annul the Commission’s decision of 26 October 1999
Dolores Calvo Fernandez against Bundesanstalt für Arbeit,                      on the national provisions notified by the Kingdom of
Kindergeldkasse, on the following questions:                                   Denmark concerning the use of sulphites, nitrites and
                                                                               nitrates in foodstuffs;
1. Is Article 77(2)(b) in conjunction with Article 79(1) of               — Order the Commission to pay the costs of the proceedings.
     Regulation (EEC) No 1408/71 (1) to be interpreted as
     meaning that family allowances for the dependent children
     of pensioners who acquired entitlement to a pension in a
     Member State not solely under the legislation of the                 Pleas in law and main arguments
     Member State but under the coordinating provisions of
     European social law, must be paid as a full benefit where            — Essential formal defects
     the pension entitlement from the state of non-residence
     subsists in respect of periods or only as from a period in                — failure to provide Denmark with an opportunity to
     respect of which there is no (or no longer any) entitlement                   state its case before the contested decision was adopted
     to family benefit provided for under the legislation of the
     state of residence owing either to the fact that an age limit                 The principle of audi alteram partem was infringed
     or an income limit has been exceeded or it was not applied                    inasmuch as the Danish Government was not given an
     for?                                                                          opportunity to set out its views on the content or
                                                                                implications of the Commission’s decision prior to its
                                                                                adoption.
2. Is Article 78(2)(b) in conjunction with Article 79(1) of
     Regulation (EEC) No 1408/71 to be interpreted as meaning
     that family allowances for orphans of a deceased employee                 — failure to provide Denmark with an opportunity to
     or self-employed person, to whom the legislation of several                   state its views on the opinions received from other
     Member States applied, must be paid as a full benefit,                        countries
     where there is no entitlement to an orphan’s pension in a
     Member State whose legislation applied, either solely                         These opinions must be assumed to have had an
     under the legislation of the Member State or under                            influence on the Commission’s decision and the Com-
     the coordinating legislation of European social law, and                      mission ought to have given Denmark an opportunity
     entitlement to the orphan’s pension from the state of                         to comment on those opinions, which are to some
     non-residence subsists in respect of periods or only as                       extent based on a misunderstanding of the Danish
     from a period in respect of which there is no (or no longer                   rules.
     any) entitlement to family benefit provided for under the
     legislation of the state of residence owing either to the fact       — Legal defects
     that an age limit or an income limit was exceeded or it was
     not applied for?                                                          — The Commission’s decision is based on an error of law:
                                                                                In determining rules, it is not possible to draw a
                                                                                distinction between the assessment of a given substance
(1) English Special Edition 1971 (II), p. 416.                                     in regard to health and the assessment of the techno-
                                                                                logical need governing its use. The use of any given
                                                                                additive involves a potential risk to human health, and
                                                                                its use can therefore be authorised only in so far as
                                                                                there is a technological need for it. Technological need
                                                                                is thus a relevant criterion in assessing matters relating


title: Case T-539/08: Action brought on 5 December 2008 — Etimine and Etiproducts v Commission

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/55

         Action brought on 5 December 2008 — Etimine and Etiproducts v Commission
   (Case T-539/08)
   (2009/C 44/97)
   Language of the case: English
   Parties

      Applicant(s): Etimine SA (Bettembourg, Luxembourg) and Ab Etiproducts Oy (Espoo, Finland) (represented by: C. Mereu and K. Van Maldegem, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare the application admissible and well-founded;

               —

               partially annul the contested measures by annulling the entries in Annex 1G to the contested measure relating to the following substances:

                           —

                           boric acid; boric acid, crude natural,

                           —

                           diboron trioxide; boric oxide,

                           —

                           disodium tetraborate anhydrous; boric acid, disodium salt; tetraboron disodium heptaoxide, hydrate; orthobroic acid, sodium salt,

                           —

                           disodium tetraborate decahydrate; borax decrahydrate,

                           —

                           disodium tetraborate penthahydrate; borax pentahydrate.

               —

               in alternative, partially annul the contested measures by annulling the entries in Annex 1G to the contested measure relating to the following substances:

                           —

                           diboron trioxide; boric oxide,

                           —

                           disodium tetraborate anhydrous; boric acid, disodium salt; tetraboron disodium heptaoxide, hydrate; orthobroic acid, sodium salt,

                           —

                           disodium tetraborate decahydrate; borax decrahydrate,

                           —

                           disodium tetraborate penthahydrate; borax pentahydrate.

               —

               order the Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   By means of this application, the applicant seeks partial annulment pursuant to Article 230 EC of Commission Directive 2008/58/EC of 21 August 2008 amending, for the purpose of its adaptation to technical progress, for the 30th time, Council Directive 67/548/EEC on the approximation of the laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances (1) in so far as it classifies certain borates as toxic to reproduction for both fertility and development effects.
   The applicant puts forward three pleas in law in support of its claims.
   First, the applicant claims that the Commission has infringed essential procedural requirements as the contested measure fails to comply with the applicable legislative procedure and therefore infringes Articles 5 and 7 EC, Article 29 of Council Directive 67/548/EEC (2) and Article 5 of Council Decision 1999/468/EC (3).
   Second, the applicant argues that the Commission committed errors of assessment in applying the criteria for classification of the borate substances and thus infringed Council Directive 67/548/EEC. It submits that the Commission did not apply or failed to properly apply the ‘normal handling and use’ principle provided for in Annex VI to Directive 67/548/EEC, unlawfully applied risk assessment criteria while, in the applicant's opinion, they are irrelevant in the context of classification of substances under Directive 67/548/EEC and failed to apply or misapplied the ‘appropriateness’ criterion in breach of point 4.2.3.3 of Annex VI to Directive 67/548/EEC. Furthermore, the applicant contends that the Commission failed to give sufficient weight to epidemiological and human data submitted by the applicant and, in result, the contested measure is partially vitiated by a manifest error of assessment. The applicant claims that the Commission unlawfully extrapolated data relating to one of the borate substances for the purposes of classifying the other borate substances and therefore the contested measure must be partially annulled at least in so far as it concerns the other borate substances. The applicant submits that the Commission failed to provide adequate reasons pursuant to Article 253 EC as no justification was given by the Commission to explain the grounds for the extrapolation of data.
   Third, the applicant claims that the Commission infringed fundamental principles of the community law such as principle of proportionality as stated in Article 5 EC as, in the applicant's opinion, the contested measure goes beyond what is necessary to achieve the aims pursued by that measure.

      (1)  OJ L 246, p. 1.

      (2)  Council Directive 67/548/EEC of 27 June 1967 on the approximation of laws, regulations and administrative provisions relating to the classification, packaging and labelling of dangerous substances, OJ 196, p. 1.

      (3)  Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission, OJ L 184, p. 23.


title: Case C-137/07 P: Appeal brought on 8 March 2007 by Österreichische Volksbanken-AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-271/02

text:
               26.5.2007

               EN

               Official Journal of the European Union

               C 117/13

         Appeal brought on 8 March 2007 by Österreichische Volksbanken-AG against the judgment of the Court of First Instance (Second Chamber) delivered on 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 Raiffeisen Zentralbank Österreich AG and Others v Commission of the European Communities, concerning Case T-271/02
   (Case C-137/07 P)
   (2007/C 117/21)
   Language of the case: German
   Parties

      Appellant: Österreichische Volksbanken-AG (represented by: A. Ablasser-Neuhuber, R. Bierwagen and F. Neumayr, lawyers)

      Other party to the proceedings: Commission of the European Communities
   Form of order sought

               1.

               Set aside paragraphs 2 and 4 of the operative part of the judgment at first instance of 14 December 2006 in Joined Cases T-259/02 to T-264/02 and T-271/02 (1) and

                           a.

                           annul the decision forming the subject-matter of the dispute — Commission Decision 2004/138/EC of 11 June 2002 in cartel case COMP/36.571/D-1 — in accordance with the first and third claims in so far as the decision relates to the appellant or, in the alternative, reduce the fine imposed on the appellant in accordance with the third claim; or

                           b.

                           in the further alternative, if the state of the proceedings does not permit final judgment to be given, refer the matter back to the Court of First Instance for renewed consideration and final judgment;

               2.

               order the Commission to pay the costs of the proceedings or, if the matter is referred back to the Court of First Instance, reserve the costs for a decision by that court.

         Pleas in law and main arguments
   The appellant's grounds for appeal against the judgment of the Court of First Instance are as follows:

               The Court erred in law in its interpretation of the liability of the agreements or conduct of the undertakings to affect trade between Member States, and in its application of that criterion to the present case. It erred in law in its judgment regarding the relative importance of the criterion as to the partitioning of the market; it is not clear on what grounds the Court declined to allow that the criterion of the partitioning of the market has, at the very least, a strong evidential value as to the existence of an effect on inter-State trade. Further, the appellant complains that the Court assessed the cross-border effect of the meetings overall, instead of examining the individual meetings of the Lombard network separately in relation to their possible effects on trade between the Member States. The over-extension of Article 81(1) EC, whereby a cartel which covers the whole territory of a Member State is deemed, by its very nature, liable to partition the markets and affect intra-Community trade, or that there is in any event a strong presumption to that effect, is inconsistent with the rationale of that Community law provision.

               The Court erred in law by failing to apply the conditions for the attribution of turnover — which have been developed by the Commission and in case-law — to the attribution to the lead institution of the decentralised banks' market shares. It thus disregarded the fact that both the attribution of turnover and the attribution of market shares relate to the same substantive issue in the present case, the determination of the permissible fine. There appears to be no reason why the comparable issues of turnover attribution and market share attribution should be judged by different criteria. However, even if it were assumed that the decentralised banks' market shares could be attributed to the lead institution on some basis other than that which applies to the attribution of turnover, the basis specifically chosen by the Court is incorrect and unlawful.

               The Court was wrong to dismiss the appellant's complaints concerning the failure to take attenuating circumstances into account. It failed, in its legal assessment, in particular to take sufficient account of the fact that the appellant had a minor role in relation to the cartel as a whole and that there was no need for compulsion in the course of the investigation, as the appellant had cooperated voluntarily with the Commission. The appellant has a very small market share, was not invited into the inner circle by the other banks and participated in significantly fewer meetings. Those factors, which were put forward by the appellant and from which the existence of attenuating circumstances may be inferred, were to some extent not addressed at all. Neither the Commission nor the Court fulfilled the obligation to address the facts put forward and to assess them without any error in law.

      (1)  OJ C 331, p. 29.


title: Judgment of the Court (Sixth Chamber) of 22 January 2004 in Case C-353/01 P: Olli Mattila (Appeal — Access to documents — Decisions 93/731/EC and 94/90/ECSC, EC, Euratom — Exception relating to the protection of the public interest in the field of international relations — Partial access)

text:
C 71/2                 EN                          Official Journal of the European Union                                             20.3.2004
                 JUDGMENT OF THE COURT                                                       JUDGMENT OF THE COURT
                         (Sixth Chamber)                                                              (Fifth Chamber)
                       of 22 January 2004                                                           of 15 January 2004
              in Case C-353/01 P: Olli Mattila (1)
                                                                           in Case C-433/01 (Reference for a preliminary ruling
                                                                           from the Bundesgerichtshof ): Freistaat Bayern v Jan
(Appeal — Access to documents — Decisions 93/731/EC                                                    Blijdenstein (1)
and 94/90/ECSC, EC, Euratom — Exception relating to the
protection of the public interest in the field of international
                   relations — Partial access)                             (Brussels Convention — Special rules of jurisdiction —
                                                                           Article 5(2) — Maintenance — Action for recovery brought
                                                                           by a public body subrogated to the rights of the maintenance
                          (2004/C 71/02)                                                                   creditor)
                   (Language of the case: English)                                                     (2004/C 71/03)
                                                                                (Language of the case: German)
In Case C-353/01 P, Olli Mattila (Agent: Z. Sundström), with
an address for service in Luxembourg: Appeal against the                   (Provisional translation; the definitive translation will be published
judgment of the Court of First Instance of the European                                        in the European Court Reports)
Communities (Fifth Chamber) of 12 July 2001 in Case T-204/
99 Mattila v Council and Commission [2001] ECR II-2265,
seeking to have that judgment set aside, the other parties to
the proceedings being: Council of the European Union (Agents:
J. Aussant and M. Bauer), with an address for service in                   In Case C-433/01: Reference to the Court, pursuant to the
Luxembourg, and Commission of the European Communities                     Protocol of 3 June 1971 on the interpretation by the Court of
(Agents: C. Docksey and U. Wölker) with an address for service             Justice of the Convention of 27 September 1968 on jurisdic-
in Luxembourg, the Court (Sixth Chamber), composed of:                     tion and the enforcement of judgments in civil and commercial
C. Gulmann, acting for the President of the Sixth Chamber,                 matters, by the Bundesgerichtshof (Germany) for a preliminary
J.N. Cunha Rodrigues (Rapporteur), J.-P. Puissochet,                       ruling in the proceedings pending before that court between
R. Schintgen and F. Macken, Judges; P. Léger, Advocate                     Freistaat Bayern and Jan Blijdenstein, on the interpretation of
General; H. von Holstein, Deputy Registrar, has given a                    Article 5(2) of the abovementioned Convention of 27 Septem-
judgment on 22 January 2004, in which it:                                  ber 1968 (OJ 1978 L 304, p. 36), as amended by the
                                                                           Convention of 9 October 1978 on the accession of the
                                                                           Kingdom of Denmark, Ireland and the United Kingdom of
1.   Sets aside the judgment of the Court of First Instance of the         Great Britain and Northern Ireland (OJ 1978 L 304, p. 1, and
     European Communities of 12 July 2001 in Case T-204/99                 — amended text— p. 77), by the Convention of 25 October
     Mattila v Council and Commission in so far as it rejects Mr           1982 on the accession of the Hellenic Republic (OJ 1982
     Mattila’s form of order seeking annulment of the decisions of         L 388, p. 1), and by the Convention of 26 May 1989 on the
     the Commission of the European Communities and the Council            accession of the Kingdom of Spain and the Portuguese
     of the European Union of 5 and 12 July 1999 respectively              Republic (OJ 1989 L 285, p. 1), the Court (Fifth Chamber),
     refusing the appellant access to certain documents;                   composed of: P. Jann (Rapporteur), acting for the President of
                                                                           the Fifth Chamber, C.W.A. Timmermans and A. Rosas, Judges;
2.   Annuls those decisions;                                               A. Tizzano, Advocate General; R. Grass, Registrar, has given a
                                                                           judgment on 15 January 2004, in which it has ruled:
3.   Dismisses the remainder of the appeal;
                                                                           Article 5(2) of the Convention of 27 September 1968 on jurisdiction
4.   Orders the Council and the Commission to pay the costs                and the enforcement of judgments in civil and commercial matters,
     relating to both sets of proceedings.                                 as amended by the Convention of 9 October 1978 on the accession
                                                                           of the Kingdom of Denmark, Ireland and the United Kingdom of
                                                                           Great Britain and Northern Ireland, by the Convention of 25 October
(1) OJ C 317 of 10.11.2001.                                                1982 on the accession of the Hellenic Republic and by the Convention
                                                                           of 26 May 1989 on the accession of the Kingdom of Spain and the
                                                                           Portuguese Republic must be interpreted as meaning that it cannot
                                                                           be relied on by a public body which seeks, in an action for recovery,


title: Case C-564/15: Judgment of the Court (Fourth Chamber) of 26 April 2017 (request for a preliminary ruling from the Kecskeméti közigazgatási és munkaügyi bíróság — Hungry) — Tibor Farkas v Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Adó Főigazgatósága (Reference for a preliminary ruling — Plea alleging infringement of EU law raised by the Court of its own motion — Principles of equivalence and effectiveness — Common system of value added tax — Directive 2006/112/EC — Right to deduct input tax — Reverse charge system — Article 199(1)(g) — Application only in the case of immovable property — Undue payment of the tax by the purchaser of property to the seller as a result of an incorrectly drawn up invoice — Tax authority’s decision holding that the property purchaser has an outstanding tax liability, refusing payment of the deduction sought by the purchaser, and imposing a penalty tax)

text:
               19.6.2017

               EN

               Official Journal of the European Union

               C 195/3

         Judgment of the Court (Fourth Chamber) of 26 April 2017 (request for a preliminary ruling from the Kecskeméti közigazgatási és munkaügyi bíróság — Hungry) — Tibor Farkas v Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Adó Főigazgatósága
   (Case C-564/15) (1)

   ((Reference for a preliminary ruling - Plea alleging infringement of EU law raised by the Court of its own motion - Principles of equivalence and effectiveness - Common system of value added tax - Directive 2006/112/EC - Right to deduct input tax - Reverse charge system - Article 199(1)(g) - Application only in the case of immovable property - Undue payment of the tax by the purchaser of property to the seller as a result of an incorrectly drawn up invoice - Tax authority’s decision holding that the property purchaser has an outstanding tax liability, refusing payment of the deduction sought by the purchaser, and imposing a penalty tax))
   (2017/C 195/03)
   Language of the case: Hungarian

      Referring court

   Kecskeméti közigazgatási és munkaügyi bíróság

      Parties to the main proceedings

      Applicant: Tibor Farkas

      Defendant: Nemzeti Adó- és Vámhivatal Dél-alföldi Regionális Adó Főigazgatósága

      Operative part of the judgment

               1.

               Article 199(1)(g) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2010/45/EU of 13 July 2010, must be interpreted to the effect that it applies to the supply of immovable property sold by a judgment debtor in a compulsory sale procedure.

               2.

               The provisions of Directive 2006/112, as amended by Directive 2010/45, and the principles of fiscal neutrality, effectiveness and proportionality must be interpreted to the effect that, in a situation such as that in the main proceedings, they do not preclude the purchaser of an item of property from being deprived of the right to deduct the value added tax which he paid to the seller when that tax was not due, on the basis of an invoice drawn up in accordance with the rules of the ordinary value added tax regime, where the relevant transaction came under the reverse charge mechanism, and the seller paid that tax to the Treasury. However, to the extent that reimbursement of the unduly invoiced value added tax by the seller to the purchaser becomes impossible or excessively difficult, in particular in the case of the insolvency of the seller, those principles require that the purchaser be able to address his application for reimbursement to the tax authority directly.

               3.

               The principle of proportionality must be interpreted to the effect that it precludes national tax authorities, in a situation such as that in the main proceedings, from imposing on a taxable person, who purchased an item of property the transfer of which comes under the reverse charge regime, a tax penalty of 50 % of the amount of value added tax which he is required to pay to the tax authority, where those authorities suffered no loss of tax revenue and there is no evidence of tax evasion, this being a matter for the referring court to determine.

      (1)  OJ C 90, 7.3.2016.


title: Case T-347/10: Action brought on 27 August 2010 — Adelholzener Alpenquellen v OHIM (Shape of a bottle with a relief-like depiction of three mountain summits)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/52

      Action brought on 27 August 2010 — Adelholzener Alpenquellen v OHIM (Shape of a bottle with a relief-like depiction of three mountain summits)
      (Case T-347/10)
      ()
      (2010/C 288/96)
      Language in which the application was lodged: German

         Parties

         Applicant: Adelholzener Alpenquellen GmbH (Siegsdorf, Germany) (represented by O. Rauscher, lawyer)

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

         Form of order sought

                  —

                  Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 9 June 2010 in Case R 1516/2009-1;

                  —

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

         Pleas in law and main arguments

         Community trade mark concerned: the three-dimensional mark in the shape of a bottle with a relief-like depiction of three mountain summits for goods in Class 32

         Decision of the Examiner: rejection of the application

         Decision of the Board of Appeal: dismissal of the appeal

         Pleas in law: Infringement of Article 7(1)(b) of Regulation (EC) No 207/2009 (1) as the Community trade mark at issue has distinctive character; infringement of Article 37(2) of Regulation (EC) No 207/2009 as the Board of Appeal should not have based its decision on the absence of a disclaimer; and infringement of Article 75(2) of Regulation (EC) No 207/2009 as the applicant was unable to comment on certain depictions on which the decision was based

         (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T-284/09 P: Appeal brought on 17 July 2009 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 18 May 2009 in Joined Cases F-138/06 and F-37/08 Meister v OHIM

text:
               10.10.2009

               EN

               Official Journal of the European Union

               C 244/6

         Appeal brought on 17 July 2009 by Herbert Meister against the judgment of the Civil Service Tribunal delivered on 18 May 2009 in Joined Cases F-138/06 and F-37/08 Meister v OHIM

   (Case T-284/09 P)
   2009/C 244/10
   Language of the case: German

      Parties

      Appellant: Herbert Meister (Muchamiel, Spain) (represented by H.-J. Zimmermann, lawyer)

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

      Form of order sought by the appellant

               —

               That the judgment of the Civil Service Tribunal of 18 May 2009 in Case F-37/08 Meister v OHIM be set aside;

               —

               that OHIM be ordered to pay the costs.

      Pleas in law and main arguments

   The appeal is brought against the judgment of the Civil Service Tribunal of 18 May 2009 in Joined Cases F-138/06 and F-37/08 Meister v OHIM, in which, inter alia, the appellant’s pleas in Case F-37/08 were rejected.
   In support of his appeal, the appellant claims primarily that, the Civil Service Tribunal breached its duty of neutrality and objectivity, that it did not carry out an accurate assessment of the facts of the case but rather a one-sided assessment, and that it distorted the facts of the case. Furthermore, the Civil Service Tribunal is criticised for improper procedural confusion regarding the respective subject-matter of Case F-138/06 and Case F-37/08. In addition, the appellant alleges that the Civil Service Tribunal erred in law in its judgment on the facts of the case. Lastly, the appellant criticises the Civil Service Tribunal’s decision on costs.
   The appellant takes the view that the Civil Service Tribunal, by its infringements, also breached its duty to provide lawful grounds for the judgment under appeal.


title: Case C-32/14: Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 23 January 2014 — ERSTE Bank Hungary Zrt. v Attila Sugár

text:
               7.4.2014

               EN

               Official Journal of the European Union

               C 102/16

         Request for a preliminary ruling from the Fővárosi Törvényszék (Hungary) lodged on 23 January 2014 — ERSTE Bank Hungary Zrt. v Attila Sugár
   (Case C-32/14)
   2014/C 102/22
   Language of the case: Hungarian

      Referring court

   Fővárosi Törvényszék

      Parties to the main proceedings

      Applicant: ERSTE Bank Hungary Zrt.

      Defendant: Attila Sugár

      Questions referred

               1.

               Does a procedure of a Member State comply with Article 7(1) of Directive 93/13/EEC (1) if, under that procedure, in the event of a breach by the consumer of an obligation contained in a document in due form drawn up by a notary, the other party to the contract avoids inter partes proceedings before a court and asserts its claim to the amount it indicates by issuing what is known as an enforcement clause, without any examination being possible of the unfairness of a term of the underlying contract?

               2.

               In such a procedure may the consumer request the annulment of the enforcement clause already issued on the basis that there was no examination of the unfairness of a term of the underlying contract, whereas, according to the judgment in Case C-472/11, in court proceedings the court must inform the consumer if it finds that a term is unfair?

      (1)  Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts; OJ 1993 L 95, p. 29.