title: Case C-330/11: Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria). lodged on 29 June 2011 — Tsifrova kompania v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/25

         Reference for a preliminary ruling from the Varnenski Administrativen Sad (Bulgaria). lodged on 29 June 2011 — Tsifrova kompania v Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna
   (Case C-330/11)
   2011/C 252/47
   Language of the case: Bulgarian

      Referring court

   Varnenski Administrativen Sad

      Parties to the main proceedings

      Applicant: Tsifrova kompania

      Defendant: Nachalnik na Mitnicheski punkt Varna Zapad pri Mitnitsi Varna

      Questions referred

               1.

               What is to be understood by the term ‘Internet’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), (1) which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

               2.

               What is to be understood by the term ‘modem’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if it is used in relation to the classification of goods under TARIC code 8528711300?

               3.

               What is to be understood by the terms ‘modulation’ and ‘demodulation’ within the meaning of the Explanatory Notes to the Combined Nomenclature of the European Community for 2009 (Commission Regulation (EC) No 1031/2008 of 19 September 2008), which were published in the Official Journal of 30 May 2008 (OJ 2008 C 133, p. 1) (amendment in relation to subheadings 8528 90 00, 8528 71 13 and 8528 71 90), if they are used in relation to the classification of goods under TARIC code 8528711300?

               4.

               What is the relevant function (main function) of the set-top box DC 215 KL apparatus, pursuant to which the tariff classification must be carried out: receiving television signals or the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet?

               5.

               If the relevant function (main function) of the set-top box DC 215 KL apparatus is the use of a modem which facilitates interactive information exchange for the purposes of gaining access to the internet, is the type of modulation and demodulation which the modem brings about or the type of modem used relevant to the tariff classification, or does it suffice that access to the Internet is provided by means of the modem?

               6.

               Under which subheading and which code should apparatus corresponding to the description of the apparatus DC 215 KL be classified?

               7.

               In the event that the set-top box DC 215 KL is to be classified under subheading 8521 90 00 of the combined nomenclature, is the application of a positive rate of customs duty lawful as a matter of Community law, if such classification would constitute a violation of the Community’s obligations under the Information Technology Agreement and Article II:l(b) of the General Agreement on Tariffs and Trade 1994, or does classification under heading 8521 entail a conclusion that the set-top box TF6100DCC falls outside the scope of the relevant part of the Information Technology Agreement?

      (1)  OJ 2008 L 291, p. 1.


title: Judgment of the Court (First Chamber) of 11 December 2001 in Case C-376/00: Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directives 75/439/EEC and 75/442/EEC — National reports on implementation — Failure to forward to the Commission)

text:
C 84/28                 EN                      Official Journal of the European Communities                                               6.4.2002
regional reference amounts for producers of soya beans, rape               obligations under the said directives — the Court (First
seed, colza seed and sunflower seed for the 1992/93 marketing              Chamber), composed of: P. Jann, President of the Chamber,
year (OJ 1993 L 56, p. 18), the Court (Second Chamber),                    L. Sevón (Rapporteur) and M. Wathelet, Judges; D. Ruiz-Jarabo
composed of: N. Colneric, President of the Chamber,                        Colomer, Advocate General; R. Grass, Registrar, has given a
R. Schintgen (Rapporteur) and V. Skouris, Judges, Advocate                 judgment on 11 December 2001, in which it:
General: C. Stix-Hackl, Registrar: R. Grass, has given a judg-
ment on 7 February 2002, in which it has ruled:
                                                                           1.    Declares that, by failing to forward to the Commission, for the
                                                                                period from 1995 to 1997, the report required under Article 18
Consideration of the questions submitted has disclosed no factor of              of Council Directive 75/439/EEC of 16 June 1975 on the
such a kind as to affect the validity of Commission Regulation (EEC)             disposal of waste oils, as amended by Council Directive
No 525/93 of 8 March 1993 establishing the value of the final                    91/692/EEC of 23 December 1991 standardising and ration-
regional reference amounts for producers of soya beans, rape seed,               alising reports on the implementation of certain Directives
colza seed and sunflower seed for the 1992/93 marketing year.                    relating to the environment, within the period fixed by that
                                                                                provision, the Italian Republic has failed to fulfil its obligations
                                                                                under that directive;
(1) OJ C 316 of 4.11.2000.
                                                                           2.    Orders the Italian Republic to pay the costs.
                                                                           (1) OJ C 355 of 9.12.2000.
                 JUDGMENT OF THE COURT
                          (First Chamber)
                       of 11 December 2001
                                                                                JUDGMENT OF THE COURT
in Case C-376/00: Commission of the European Communi-
                     ties v Italian Republic (1)                                                    (Second Chamber)
(Failure of a Member State to fulfil obligations — Directives                                         17 January 2002
75/439/EEC and 75/442/EEC — National reports on
  implementation — Failure to forward to the Commission)                   in Case C-394/00: Commission of the European Communi-
                                                                                ties v Ireland (1)
                           (2002/C 84/45)
                                                                           (Failure of a Member State to fulfil its obligations —
                    (Language of the case: Italian)                        Directive 96/82/EC — Failure to transpose within the
                                                                                prescribed period)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)                                                      (2002/C 84/46)
                                                                                (Language of the case: English)
In Case C-376/00: Commission of the European Communities
(Agents: H. Støvlbaek and R. Amorosi) v Italian Republic                   (Provisional translation; the definitive translation will be published
(Agent: U. Leanza, assisted by M. Fiorilli) — application for a                                in the European Court Reports)
declaration that, by failing to forward to the Commission, for
the period from 1995 to 1997, the reports required under
Article 18 of Council Directive 75/439/EEC of 16 June 1975
on the disposal of waste oils (OJ 1975 L 194, p. 23), as                   In Case C-394/00, Commission of the European Communities
amended by Council Directive 91/692/EEC of 23 December                     (Agent:G. zur Hausen) v Ireland (Agent:D. O’Hagan): appli-
1991 standardising and rationalising reports on the implemen-              cation for a declaration that, by failing to adopt the laws,
tation of certain Directives relating to the environment (OJ               regulations and administrative provisions necessary to comply
1991 L 377, p. 48), and under Article 12 of Council Directive              with Council Directive 96/82/EC of 9 December 1996 on
75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39),                the control of major-accident hazards involving dangerous
as amended by Directive 91/692/EEC, within the periods fixed               substances (OJ 1997 L 10, p. 13) or, in any event, by failing to
by those provisions, the Italian Republic has failed to fulfil its         notify the Commission of those provisions, Ireland has failed


title: Case C-499/16: Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 September 2016 — AZ v Minister Finansów

text:
               23.1.2017

               EN

               Official Journal of the European Union

               C 22/2

         Request for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 16 September 2016 — AZ v Minister Finansów
   (Case C-499/16)
   (2017/C 022/03)
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

   AZ, Minister Finansów

      Question referred

   Does the fact of making the rate of taxation for pastry goods and cakes depend solely on the criterion of the ‘use-by date’ and the ‘best-before date’, as in the case of those goods in Article 41(2) of the Ustawa o podatku od towarów i usług (Law on tax on goods and services) of 11 March [2004] (Dziennik Ustaw of 2011, No 177, item 1054, as amended), in conjunction with Heading 32 of Annex 3 to that law, infringe the principle of VAT neutrality and the prohibition of unequal treatment of goods within the meaning of Article 98(1) and (2) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax? (1)

      (1)  OJ 2006 L 347, p. 1.


title: Notice of an open competition

text:
C 175/12        EN               Official Journal of the European Communities                             9.6.98
                                    COURT OF JUSTICE
                                          Notice of an open competition
                                                  (98/C 175/09)
         The Court of Justice of the European Communities will be publishing in the Official Journal of
         the European Communities CØ175ØA of 9 June 1998 the following notice of open competition:
         English edition
         CJ/LA/27 (Interpreters of English mother tongue)
         To obtain a copy of this Official Journal please apply to the Personnel Division of the Court of
         Justice of the European Communities, L-2925 Luxembourg.
         Closing date for application: 10 July 1998.


title: Case T-277/12: Action brought on 25 June 2012 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO)

text:
               8.9.2012

               EN

               Official Journal of the European Union

               C 273/12

         Action brought on 25 June 2012 — Bimbo v OHIM — Café do Brasil (Caffè KIMBO)
   (Case T-277/12)
   2012/C 273/20
   Language in which the application was lodged: English

      Parties

      Applicant: Bimbo, SA (Barcelona, Spain) (represented by: J. Carbonell Callicó, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Café do Brasil SpA (Melito di Napoli, Italy)

      Form of order sought

               —

               Modify the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2012 in case R 1017/2011-4;

               —

               In the alternative and only in the case the former claim would be rejected, annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2012 in case R 1017/2011-4; and

               —

               Order the defendant and the other party to the proceedings to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark in black, red, gold and white ‘Caffè KIMBO’, for goods in classes 11, 21 and 30 — Community trade mark application No 3478311

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: Spanish trade mark registration No 291655 of the word mark ‘BIMBO’ for goods in class 30; Earlier well-known mark in Spain ‘BIMBO’ for goods in class 30

      Decision of the Opposition Division: Upheld the opposition for part of the contested goods

      Decision of the Board of Appeal: Partially annulled the contested decision and dismissed the appeal for the remainder

      Pleas in law:

               —

               Infringement of Articles 64, 75 and 76 of Council Regulation (EC) No 207/2009; and

               —

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


title: Case T-420/05: Action brought on  25 November 2005  — Vischim v Commission

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/33

         Action brought on 25 November 2005 — Vischim v Commission
   (Case T-420/05)
   (2006/C 36/71)
   Language of the case: English
   Parties

      Applicant: Vischim Srl (Milan, Italy) [represented by: C. Mereu, K. Van Maldegem, lawyers]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Order the partial annulment of Commission Directive 2005/53/EC in so far as it includes entry no. 102, corresponding to the plant protection active substance chlorothalonil, in Annex I to the Plant Protection Products Directive (‘PPPD’), with a purity specification that does not correspond to the specification notified to and evaluated by the Commission and the Standing Committee on Plant Health; in the alternative, immediately to modify entry no. 102 to reflect the new FAO specification of November 2005;

               —

               order the partial annulment of the Review Report underlying the inclusion of chlorothalonil in Annex I to Directive 91/414 insofar as it does not recognise the status of 'main data submitter' to the applicant and fails to list the applicant's data in Appendix IIIA thereto;

               —

               order the defendant to comply with its obligations under Community law and act on the applicant's request;

               —

               order the defendant to compensate the applicant in the provisional amount of 1 (one) Euro for damages suffered as a result of the contested measure, or, in the alternative, as a result of the Defendant's failure to comply with its obligations under Community law by failing to respond to the applicant, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

               —

               order the defendant to pay all costs and expenses in these proceedings.

         Pleas in law and main arguments
   The applicant produces chlorothalonil -based plant protection products and, therefore, has an interest in securing the inclusion of that substance in Annex I of the PPPD (1), which would allow it to continue with the production of its product. It thus contests Directive 2005/53 (2) insofar as it includes this substance in Annex I but with a specification that would operate to exclude the product the applicant produces.
   In support of this application the applicant first invokes a number of alleged procedural flaws of the contested measure, as well as a number of substantive legal flaws. From a procedural standpoint, the applicant contends that it was unlawfully rejected as a main data submitter and that its studies were unlawfully removed from Appendix IIIA to the review report. In this context, it also alleges that the current version of that report cannot have been approved by the Standing Committee, since it is posterior to the latter's meeting approving the review report. It also alleges that it was excluded from certain critical meetings and/or exchanges, in violation of procedural safeguards provided for in the PPPD and Regulation 3600/92 (3) and that its chlorothalonil specification was unlawfully withdrawn from Annex I to the PPPD despite the reliance on its data. The applicant also challenges the Commission's decision to rely on a new FAO specification for changing the chlorothalonil specification under the PPPD, submitting that such a change was not scientifically necessary.
   The applicant further contends that its own chlorothalonil specification meets the requirements of Article 5 and therefore the Commission was obliged, under this latter provision as well as Article 95 EC, to include it in Annex I. It also considers that the principle of subsidiarity was violated in that the Commission followed a ‘maximal standard’ for chlorothalonil, violating the Member States' prerogative when making re-registration decisions under the PPPD. Also, the applicant invokes the violation of the principle of sound administration enshrined in Article 211 EC as well as the violation of Article 13 of the PPPD and of the applicant's legal rights and legitimate expectations.
   Moreover, the applicant contends that the contested measure violates its rights to a fair hearing, its right of defence, the Commission's duty to state reasons and fundamental Community law principles such as proportionality, legitimate expectations, legal certainty and equal treatment. It also allegedly violates the applicant's right to property since it deprives the applicant of its right to conduct business activities. Further, the applicant considers that the contested measure distorts competition to the extent that it effectively creates a monopoly for a competitor's product, allegedly the only one conforming to the specification adopted.
   In the alternative, the applicant attacks the Commission's alleged failure to act upon its formal request to either formally adopt the contested measure with an amended chemical identity/purity definition satisfying the applicant's submissions or to refrain from adopting it in its current form pending a decision on a different chemical identity/purity definition.
   The applicant finally requests compensation for the damages it allegedly incurred due to its inability to continue marketing of its plant protection products based on chlorothalonil.

      (1)  Council Directive 91/414/EEC of 15 July 1991 concerning the placing of plant protection products on the market OJ L 230, 19/08/1991, p. 1.

      (2)  Commission Directive 2005/53/EC of 16 September 2005 amending Council Directive 91/414/EEC to include chlorothalonil, chlorotoluron, cypermethrin, daminozide and thiophanate-methyl as active substances, OJ L 241, 17/09/2005, p. 51.

      (3)  Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8 (2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market, OJ L 366, 15/12/1992, p. 10, as last amended by Regulation (EC) No 2266/2000, OJ L 259, 13/10/2000, p. 27.


title: Judgment of the Court of 11 December 2012 in Case E-1/12 — Den norske Forleggerforening v EFTA Surveillance Authority (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Alleged aid granted to Nasjonal digital læringsarena (NDLA) — Decision not to open the formal investigation procedure — Notion of economic activity — Notion of doubts — Obligation to state reasons)

text:
               19.9.2013

               EN

               Official Journal of the European Union

               C 270/10

         JUDGMENT OF THE COURT
   of 11 December 2012
   in Case E-1/12
   Den norske Forleggerforening v EFTA Surveillance Authority
   (Action for annulment of a decision of the EFTA Surveillance Authority — State aid — Alleged aid granted to Nasjonal digital læringsarena (NDLA) — Decision not to open the formal investigation procedure — Notion of economic activity — Notion of doubts — Obligation to state reasons)
   2013/C 270/08
   In Case E-1/12, Den norske Forleggerforening v EFTA Surveillance Authority — APPLICATION for the annulment of Decision No 311/11/COL of 12 October 2011 on alleged aid granted to Nasjonal digital læringsarena, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 11 December 2012, the operative part of which is as follows:
   The Court hereby:

               1.

               Annuls ESA’s Decision No 311/11/COL of 12 October 2011 on alleged aid granted to Nasjonal digital læringsarena.

               2.

               Orders ESA to pay the costs of the proceedings.


title: Case F-100/11: Action brought on 5 October 2011 — ZZ v Commission

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/67

      Action brought on 5 October 2011 — ZZ v Commission
      (Case F-100/11)
      (2012/C 25/129)
      Language of the case: Italian

         Parties

         Applicant: ZZ (represented by: G. Cipressa, lawyer)

         Defendant: European Commission

         Subject-matter and description of the proceedings

      Application for annulment of the decision by which the Commission refused to send the applicant the daily allowances linked to the decision relating to his transfer from the delegation in Angola to headquarters in Brussels.

         Form of order sought

      The applicant claims that the Civil Service Tribunal should:

                  —

                  annul the decision issued by — or, in any event, attributable to — the Commission, rejecting — howsoever and whether in whole or in part — the claims set out in the application of 10 August 2010, sent to the appointing authority on 13 August 2010 at the latest;

                  —

                  annul, quatenus opus est, the note of 22 December 2010, which was received by the applicant on 11 February 2011 at the earliest;

                  —

                  annul the decision issued by the Commission rejecting, howsoever, the claims set out in the complaint of 24 February 2011;

                  —

                  order the Commission to transfer to the applicant the daily pecuniary allowances under Article 10 of Annex VII to the Staff Regulations of Officials of the European Union, which were due to the applicant: (i) in relation to the decision of 18 March 2002, issued by the Commission, concerning the transfer of the applicant and of his post from the Commission’s Delegation in Luanda (Angola) to its central headquarters in Brussels, a judgment having been handed down in relation to that decision on 14 September 2011 in Case T-236/02 Marcuccio v Commission; and (ii) as from 1 April 2002, the day on which the decision of 18 March 2002 took effect, and for the subsequent 120 calendar days;

                  —

                  order the Commission to transfer to the applicant the interest on the allowances in question, that is to say, both default interest and interest to offset the monetary devaluation occurring between 31 July 2002 and the date of actual payment, the interest in question to be calculated at the rate of 10 % per annum, and with annual capitalisation with effect from 31 July 2002;

                  —

                  order the Commission to pay the costs.


title: Case T-93/15: Order of the General Court of 26 June 2015 — Navitar v OHIM — Elukuva (NaviTar)

text:
               21.9.2015

               EN

               Official Journal of the European Union

               C 311/62

         Order of the General Court of 26 June 2015 — Navitar v OHIM — Elukuva (NaviTar)
   (Case T-93/15) (1)

   (2015/C 311/72)
   Language of the case: English
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 127, 20.4.2015.


title: Case C-552/03 P: Order of the Court of 28 September 2006 — Unilever Bestfoods (Ireland) Ltd, formerly Van den Bergh Foods Ltd v Commission of the European Communities, Masterfoods Ltd, Richmond Ice Cream Ltd, formerly Richmond Frozen Confectionery Ltd (Appeal — Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) — Ice creams for immediate consumption — Supply of freezer cabinets to retailers — Exclusivity clause — Right to a fair hearing — Burden of proof)

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/19

         Order of the Court of 28 September 2006 — Unilever Bestfoods (Ireland) Ltd, formerly Van den Bergh Foods Ltd v Commission of the European Communities, Masterfoods Ltd, Richmond Ice Cream Ltd, formerly Richmond Frozen Confectionery Ltd
   (Case C-552/03 P) (1)

   (Appeal - Articles 85 and 86 of the EC Treaty (now Articles 81 EC and 82 EC) - Ice creams for immediate consumption - Supply of freezer cabinets to retailers - Exclusivity clause - Right to a fair hearing - Burden of proof)
   (2006/C 294/31)
   Language of the case: English
   Parties

      Applicant: Unilever Bestfoods (Ireland) Ltd (formerly Van den Bergh Foods Ltd) (represented by: M. Nicholson and M. Rowe, Solicitors, M. Biesheuvel and M. De Grave, advocaten)

      Other parties to the proceedings: Commission of the European Communities (represented by: W. Wils, B. Doherty and A. Whelan, Agents), Masterfoods Ltd (represented by: P. Collins and M. Levitt, Solicitors), Richmond Ice Cream Ltd, formerly Richmond Frozen Confectionery Ltd (represented by: I. Forrester QC)
   Re:
   Appeal against the judgment of the Court of First Instance (Fifth Chamber) of 23 October 2003 in Case T-65/98 Van den Bergh Foods Ltd (formerly HB Ice Cream Limited) v Commission — Dismissal of an action for annulment of Commission Decision of 11 March 1998 relating to a proceeding under Articles 85 and 86 of the EC Treaty (Case Nos IV/34.073, IV/34.395 and IV/35.496 — Van den Bergh Foods Limited) prohibiting the practice of making freezer cabinets available to retailers exclusively for the storage of ice creams produced by the applicant
   Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Unilever Bestfoods (Ireland) Ltd shall pay the costs.

      (1)  OJ C 59, 6.03.2004.


title: Case T-381/02: Action brought on 18 December 2002 by Confédération générale des producteurs de lait de brebis et des industriels de roquefort against Commission of the European Communities

text:
8.3.2003                  EN                         Official Journal of the European Union                                           C 55/31
basis for its assessment. The main competitor would obtain a                 European Communities on 18 December 2002 by Confédé-
monopoly position if the applicant were to disappear. In                     ration générale des producteurs de lait de brebis et des
examining the applicant’s prospects of profitability, the Com-               industriels de roquefort, established in Millau (France), rep-
mission overlooked the commitment of a private investor, the                 resented by Michel-Jean Jacquot and Olivier Prost, lawyers.
applicant’s latest restructuring plan, essential testimony in
economic reports, and the positive development of the appli-
cant.
                                                                             The applicant claims that the Court should:
The applicant further argues that the Commission wrongly
                                                                             —     annul Commission Regulation No 1829/2002 of
made a preliminary decision in an earlier proceeding about the
adjustment of the purchase price (1), and thereby artificially                     14 October 2002 amending the Annex to Regulation
                                                                                (EC) No 1107/96 with regard to the name ‘Feta’ ( 1);
divided its examination, which related to the restructuring as a
whole. The opening of a further formal examination procedure,
relating only to the loan from TAB and the changing of the                   —     order the defendant to pay the costs.
security, was out of time. The principle of sound administration
required the Commission to assess the whole restructuring
plan as a unity and in its proper context.
The applicant argues that the Commission infringed its defence               Pleas in law and main arguments
rights. Because of the splitting of the procedure, the applicant
was able to adopt a position on only part of the measures, and
the Commission wrongly denied the applicant’s applications
for inspection of the files and a proper legal hearing. The                  The applicant is an inter-branch association which claims to
                                                                             group together and represent the interests of all producers of
Commission infringed the principle of impartiality by not
                                                                             Feta made from ewe’s milk.
giving the applicant and the German Government the oppor-
tunity to comment on the statement of a competitor, which
the Commission had obtained by putting questions to that
competitor.                                                                  The contested regulation reserves the name ‘Feta’ — a protected
                                                                             designation of origin — for Greek producers. The Court of
                                                                             Justice of the European Communities had already annulled, in
Finally, the applicant submits that the Commission has not                   1996, a Commission regulation on the same subject ( 2).
proved that repayment of the alleged aid in this case would be
appropriate to restore the previous position. Repayment was a
sanction going beyond the limited powers of the Commission.
                                                                             In support of its action for annulment, the applicant argues
                                                                             that no justification or reasons are stated for the choice of the
( 1) Commission Decision K(2001) 1549 of 12.6.2001 on State aid              ‘simplified’ procedure laid down in Article 17 of Regulation
     by Germany in favour of Technische Glaswerke Ilmenau GmbH,
                                                                             No 2081/92 (3). In order to have recourse to that procedure, it
     against which the applicant brought an action before the Court of
     First Instance (Case T-198/01, OJ 2001 C 303, p. 25).
                                                                             is necessary, not only for an application by the national
                                                                             authorities for a legally protected name in the applicant State
                                                                             to exist before the entry into force of Regulation No 2081/92,
                                                                             but also for that name to be neither legally protected in
                                                                             countries other than the applicant Member State nor in use in
                                                                             those countries. The term ‘Feta’ was not legally protected in
                                                                             Greece — the applicant State — in the sense intended by the
                                                                             legislation at the time of the entry into force of Regulation
Action brought on 18 December 2002 by Confédération                          No 2081/92. By contrast, not only was that same term legally
générale des producteurs de lait de brebis et des industri-                  protected in Denmark before the entry into force of Regulation
els de roquefort against Commission of the European                          No 2081/92, but also its use was widespread in France and
                             Communities                                     throughout the world.
                            (Case T-381/02)
                                                                             The applicant also submits that the Commission failed to fulfil
                                                                             its obligations in the analysis of whether the term ‘Feta’ is
                            (2003/C 55/82)
                                                                             generic and that it infringed Article 3(1) of Regulation
                                                                             No 2081/92 by the fact that it once again did not take
                      (Language of the case: French)                         sufficient account of certain factors: in particular, the existing
                                                                             situation in the Member State in which the name originates,
                                                                             the existing situation in other Member States, and the relevant
                                                                             national and Community laws. In addition, the applicant is of
An action against the Commission of the European Communi-                    the opinion that the Commission infringed Article 2(3) of
ties was brought before the Court of First Instance of the                   Regulation No 2081/92.
 ---pagebreak--- C 55/32                  EN                          Official Journal of the European Union                                        8.3.2003
Finally, the applicant alleges breach of the principle of                    Pleas in law and main arguments
proportionality and breach of the principle of the protection of
legitimate expectations based on the existence of Community
financing for the production and marketing of ‘Feta’.                        The applicant is an official at the Commission in Brussels. In
                                                                             June 2000, on taking up his appointment, he settled in
                                                                             Brussels. His spouse subsequently settled in Brussels with him
( 1) OJ L 277, p. 10.                                                        and organised the removal of the family, which took place on
( 2) Judgment in Joined Cases C-289/96, C-293/96 and C-299/96                11 April 2001, whilst continuing to be present at her
     Denmark and Others v Commission [1999] ECR I-1541.                      former home in Madrid, where their youngest daughter was
( 3) Council Regulation (EEC) No 2081/92 of 14 July 1992 on the              completing her secondary education. Consequently, his spouse
     protection of geographical indications and designations of origin       and daughter did not join him until July 2001, which they
     for agricultural products and foodstuffs (OJ L 208, p. 1).              declared to the Privileges and Immunities service.
                                                                             By the contested decision, the Commission refused to pay the
                                                                             applicant the second half of the installation allowance.
                                                                             In support of his action, the applicant pleads an error of law
                                                                             and a manifest error of assessment. According to the applicant,
Action brought on 18 December 2002 by Fernando                               the administration attached decisive importance to the declar-
Valenzuela Marzo against Commission of the European                          ations made by his spouse and daughter to the Privileges and
                            Communities                                      Immunities service. The applicant states that the concept of
                                                                             installation is a factual concept and that the text of the Staff
                                                                             Regulations does not prescribe any particular mode of proof.
                           (Case T-384/02)
                                                                             The applicant also pleads an error of law and an omission of
                           (2003/C 55/83)                                    essential facts, since the administration considered the period
                                                                             laid down by Articles 5(4) and 9(3) of Annex VII to the Staff
                                                                             Regulations to be a mandatory time-limit and did not consider
                      (Language of the case: French)                         the possibility of waiving it by reason of the complainant’s
                                                                             establishment as an official on taking up his appointment and
                                                                             the fact that his daughter was unable to join her parents in
                                                                             Brussels before the end of the school year.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 18 December 2002 by Fernando
Valenzuela Marzo, residing in Brussels, represented by Marc-
Albert Lucas, lawyer.
The applicant claims that the Court should:                                  Action brought on 16 December 2002 by Lamprecht A.G.
                                                                             against Office for Harmonisation in the Internal Market
—      annul the decisions of the head of the Administration of                            (trade marks and designs) (OHIM)
       Individual Rights unit of the Adminstration Directorate-
       General of 16 November 2001 and 13 February 2002                                               (Case T-386/02)
       refusing the applicant the second half of the installation
       allowance;
                                                                                (2003/C 55/84)
—      annul the decision of the appointing authority of 16 Sep-
       tember 2002 rejecting the complaint through official                                     (Language of the case: Spanish)
       channels of 9 May 2002 against the abovementioned
       decisions;
—      order the Commission to pay the applicant the second
                                                                             An action against Office for Harmonisation in the Internal
       half of his installation allowance together with default              Market (trade marks and designs) (OHIM) was brought before
       interest at the rate of 8 % per annum with effect from
                                                                             the Court of First Instance of the European Communities on
       11 April 2001 and until payment is made in full;
                                                                             16 December 2002 by Lamprecht A.G., whose registered
                                                                             office is in Madrid, represented by Enrique Armijo Chávarri
—      order the Commission to pay the costs.                                and Antonio Castán Pérez-Gómez.


title: Case T-471/07: Action brought on 21 December 2007 — Wella v OHIM (TAME IT)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/54

         Action brought on 21 December 2007 — Wella v OHIM (TAME IT)
   (Case T-471/07)
   (2008/C 51/98)
   Language of the case: English
   Parties

      Applicant: Wella AG (Darmstadt, Germany) (represented by: B. Klingberg, K. Sandberg, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               That the decision of the Second Board of Appeal of 24 October 2007 in Case R 713/2007-2 be annulled;

               —

               that the defendant be ordered to bear the costs of the proceedings including the costs of the appeal proceedings.

         Pleas in law and main arguments

      Trade mark concerned: The international word mark ‘TAME IT’ for goods in Class 3 (international registration No 879 186) — request for EC territorial extension of protection in accordance with the Madrid Protocol

      Decision of the examiner: Refusal on absolute grounds for all the goods applied for

      Decision of the Board of Appeal: Partly upheld the appeal and allowed the EC territorial extension of the protection of international registration No 879 186 to proceed in part

      Pleas in law: Infringement of Article 7(1)(b) and 7(1)(c) of Council Regulation 40/94.
   According to the applicant, the Board of Appeal based its decision on a purely theoretical philological analysis of the mark applied for with regard to grammar, composition and spelling rules as well as structure and syntax of the trade mark applied for, completely leaving aside the overall impression of the mark to the average consumer.


title: Case C-319/12: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 2 July 2012 — Minister of Finance v MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/21

         Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland) lodged on 2 July 2012 — Minister of Finance v MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa
   (Case C-319/12)
   2012/C 287/38
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Applicant: Minister of Finance

      Defendant: MDDP Sp. z o.o., Akademia Biznesu, Sp. komandytowa

      Questions referred

               1.

               Should point (i) of Article 132(1), Article 133 and Article 134 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, (1) as amended, ‘Directive 2006/112’, be interpreted as precluding exemption from value added tax of educational services provided for commercial purposes by bodies not governed by public law which follows from Article 43(1)(1) of the Ustawa z dnia 11 marca 2004 r. o podatku od towarów und usług (Law of 11 March 2004 on taxation of goods and services) (Dz. U. No 54, 535, as amended) in conjunction with Item 7 of Annex 4 to that Law, in the version in force in 2010?

               2.

               If the answer to the first question is in the affirmative, does this mean that due to the incompatibility of the exemption with the provisions of Directive 2006/112, Article 168 of the directive grants taxpayers both the right to apply the tax exemption and to deduct input VAT?

      (1)  OJ 2006 L 347, p. 1.


title: Case C-158/08: Judgment of the Court (Second Chamber) of 4 June 2009 (reference for a preliminary ruling from the Commissione Tributaria Regionale di Trieste (Italy)) — Agenzia Dogane Ufficio delle Dogane di Trieste v Pometon SpA (Community customs code — Regulation (EC) No 384/96 — Protection against dumped imports from countries not members of the European Community — Regulation (EC, Euratom) No 2988/95 — Protection of the European Communities’ financial interests — Processing under the inward processing procedure — Irregular practice)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/18

         Judgment of the Court (Second Chamber) of 4 June 2009 (reference for a preliminary ruling from the Commissione Tributaria Regionale di Trieste (Italy)) — Agenzia Dogane Ufficio delle Dogane di Trieste v Pometon SpA
   (Case C-158/08) (1)

   (Community customs code - Regulation (EC) No 384/96 - Protection against dumped imports from countries not members of the European Community - Regulation (EC, Euratom) No 2988/95 - Protection of the European Communities’ financial interests - Processing under the inward processing procedure - Irregular practice)
   2009/C 180/29
   Language of the case: Italian

      Referring court

   Commissione Tributaria Regionale di Trieste

      Parties to the main proceedings

      Applicant: Agenzia Dogane Ufficio delle Dogane di Trieste

      Defendant: Pometon SpA

      Re:

   Reference for a preliminary ruling — Commissione Tributaria Regionale di Trieste — Interpretation of Articles 114, 117(c), 202, 204, 212 and 240 of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) and of Article 13 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1) — Imports into the Community customs territory of unwrought magnesium originating in China — Imports through a company having its registered office in a non-member country and not subject to anti-dumping measures — Processing of the magnesium, under the inward processing procedure, by a company with its registered office in a Member State and connected to the company in the non-member country — Re-export in the form of compensating products to the said non-member country without being subjected to import duties — Immediate sale of the product by the non-member country company to the Member State company which carried out the processing

      Operative part of the judgment

               1.

               Article 13 of Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community is inapplicable in the absence of a Council decision, adopted on a proposal from the Commission, to extend the application of anti-dumping duties to imports from third countries of like products or parts thereof.

               2.

               An operation which consists in merely sending goods over the border after processing them into a product which is not subject to anti-dumping duties without any actual intention to re-export them and re-importing them shortly after cannot lawfully be placed under inward processing procedure. An importer who improperly brings himself within that procedure and benefits from it is required to pay the duties on the products concerned, without prejudice, where appropriate, to administrative, civil or criminal sanctions provided for by national law. It is for the national court having jurisdiction in the matter to determine whether the operation concerned in the main proceedings must, in the light of the considerations set out above, be regarded as irregular in the light of Community law.

      (1)  OJ C 158, 21.06.2008.


title: Case C-492/15: Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 21 September 2015 — R v S and T

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/18

         Request for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 21 September 2015 — R v S and T
   (Case C-492/15)
   (2015/C 398/23)
   Language of the case: German

      Referring court

   Oberster Gerichtshof

      Parties to the main proceedings

      Respondent and applicant: R

      Applicants and respondents: S and T

      Question referred

   Does Article 35(1) of Council Regulation (EC) No 2201/2003 (1) of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (Brussels IIa Regulation) preclude a stay, by the appellate court, of proceedings for non-recognition under Article 21(3) of the regulation or for a declaration of enforceability under Article 28 et seq. of the regulation if an application is lodged in the Member State of enforcement for amendment of the judgment on rights of custody of the State of origin which is to be declared enforceable and the Member State of enforcement has international jurisdiction for that application for amendment?

      (1)  Council Regulation (EC) No 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).


title: Case T-298/17: Action brought on 11 May 2017 — Iordachescu and Others v Parliament and Others

text:
               7.8.2017

               EN

               Official Journal of the European Union

               C 256/30

         Action brought on 11 May 2017 — Iordachescu and Others v Parliament and Others
   (Case T-298/17)
   (2017/C 256/36)
   Language of the case: Romanian

      Parties

      Applicants: Adrian Iordachescu (Bucharest, Romania), Florina Iordachescu (Bucharest), Mihaela Iordachescu (Bucharest), Cristinel Iordachescu (Bucharest) (represented by: A. Cuculis, lawyer)

      Defendants: European Parliament, Council of the European Union, European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               partially annul Directive 2014/40/EU, Article 10 and Annex II (‘picture library’), mainly with reference to image 5 in ‘Set 1’ of the WARNING section;

               —

               in the alternative, partially amend Directive 2014/40, Article 10 and Annex II approved by the European Commission, in view of the absence of any reference whatsoever on cigarette packets to an information link or to a ‘disclaimer’ concerning the photographs which appear on cigarette packets, and include on all cigarette packets within the EU a warning concerning the images which appear on those packets, with reference in particular to a link via which information can be read about the images which appear on such packets in order to dispel any doubts;

               —

               amend the ways in which consent is obtained from the persons who appear on those cigarette packets in such a way that the persons who will appear on cigarette packets consent to the publication of their real name and personal medical data so that there can be no confusion and in order that any other source of uncertainty can be avoided with regard to the persons who appear on those cigarette packets, and ensure that personal and medical data form an integral part of the link that persons who wish to know the identity/medical history of the subjects who appear on cigarette packets may consult;

               —

               order both institutions, in conjunction with the European Commission, to submit a copy of the consent consistent with the original provided by the person who appears in the series of images, number 5, set 1, without withholding personal data, and the images corresponding to the consent given, in order to make it possible to draw up an expert criminal report on the photographs;

               —

               order the defendants to pay the sum of EUR 1 000 000 as compensation for the non-material damage quantified on the basis of the suffering caused by the publication of such images a relatively short period after the death of the applicants’ father and for the anguish occasioned by the withholding of information that could have clarified the situation of the man shown on the cigarette packets in such a way that the family’s anguish would have lasted a much shorter length of time.

      Pleas in law and main arguments

   In support of the action, the applicants submit that Directive 2014/40/EU has affected their daily lives, given the distress caused by the resemblance of the person on the cigarette packets to their deceased father.


title: Case T-278/10: Action brought on 21 June 2010 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (WESTERN GOLD)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/56

         Action brought on 21 June 2010 — Wesergold Getränkeindustrie v OHIM — Lidl Stiftung (WESTERN GOLD)
   (Case T-278/10)
   ()
   2010/C 221/90
   Language in which the application was lodged: German

      Parties

      Applicant: Wesergold Getränkeindustrie GmbH & Co. KG (Rinteln, Germany) (represented by: P. Goldenbaum, I. Rohr und T. Melchert, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Lidl Stiftung & Co. KG (Neckarsulm, Germany)

      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 24 March 2010 in Case R 770/2009-1;

               —

               Order OHIM to pay the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Lidl Stiftung & Co KG.

      Community trade mark concerned: Word mark WESTERN GOLD for goods in Class 33.

      Proprietor of the mark or sign cited in the opposition proceedings: Wesergold Getränkeindustrie GmbH & Co. KG

      Mark or sign cited in opposition: a national and Community word mark WeserGold for goods in Classes 29, 31 and 32; a national and international word mark Wesergold for goods in Classes 29, 31 and 32 und a national word mark WESERGOLD for goods in Class 32.

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Appeal allowed, decision of the Opposition Division annulled.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 (1), as there is a likelihood of confusion between the marks at issue, infringement of Article 64(1) of Regulation (EC) No 207/2009, because the Board of Appeal did not remit the case or examine the substance of the opposition, also infringement of Article 75(2) of Regulation (EC) No 207/2009 on the basis of infringement of the applicant’s right to be heard, also infringement of Article 75(1) of Regulation (EC) No 207/2009 because the Board of Appeal failed to state the reasons for its decision.

      (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-219/16: Action brought on 9 March 2016 — Aldi v EUIPO (VISAGE)

text:
               27.6.2016

               EN

               Official Journal of the European Union

               C 232/32

         Action brought on 9 March 2016 — Aldi v EUIPO (VISAGE)
   (Case T-219/16)
   (2016/C 232/42)
   Language of the case: German

      Parties

      Applicant: Aldi GmbH & Co. KG (Mülheim an der Ruhr, Germany) (represented by: N. Lützenrath, U. Rademacher, C. Fürsen and N. Bertram, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU figurative mark containing the word element ‘VISAGE’ — Application for registration No 13 502 364

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 19 February 2016 in Case R 507/2015-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.


title: Case T-295/12: Action brought on 4 July 2012 — Germany v Commission

text:
               8.9.2012

               EN

               Official Journal of the European Union

               C 273/15

         Action brought on 4 July 2012 — Germany v Commission
   (Case T-295/12)
   2012/C 273/26
   Language of the case: German

      Parties

      Applicant: Federal Republic of Germany (represented by: T. Henze and J. Möller, and by T. Lübbig and M. Klasse, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision of the European Commission of 25 April 2012 on State aid SA.25051 (C 19/2010) (ex NN 23/2010) granted by Germany to the Zweckverband Tierkörperbeseitigung in Rhineland-Palatinate, Saarland, Rheingau-Taunus-Kreis and Landkreis Limburg-Weilburg (Reference: C(2012) 2557 final);

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: infringement of Article 107(1) TFEU and Article 106(2) TFEU on account of the Commission’s erroneous denial that the Zweckverband’s provision of reserve capacity to cope with epidemics is a service of general economic interest, and because the Commission flagrantly goes beyond the standard of assessment set for it by the Courts of the European Union (‘the Courts of the Union’). In particular the Commission fails to recognise that it may, according to the established case-law of the Courts of the Union, review the Member States’ margin of discretion in relation to the definition of services of general economic interest only in regard to ‘manifest errors of assessment’, and that it may not substitute its own assessment for that of the competent authorities of the Member State.

               2.

               Second plea in law: infringement of Article 107(1) TFEU owing to the erroneous finding of an economic advantage on the basis of an erroneous assessment of the ‘Altmark criteria’, according to which compensation for the discharge of public service obligations does not result in any ‘favouring’ within the meaning of Article 107(1) TFEU. The Commission made errors in the assessment of each of the four Altmark criteria relevant to the outcome of the case. In particular, with regard to the third Altmark criterion, the Commission did not confine itself to the issue requiring determination: whether compensation exceeds what is necessary to cover the costs incurred in discharging public service obligations. Instead, the Commission unlawfully examines whether the size of the reserve capacity to cope with epidemics that is provided by the Zweckverband Tierkörperbeseitigung is incommensurate with the epidemic scenarios considered possible, which it affirms, notwithstanding experts’ reports to the contrary.

               3.

               Third plea in law: infringement of Article 107(1) TFEU on account of erroneous findings in respect of the requirements that there be an effect on trade between Member States and distortion of competition. The Commission acknowledges that the Zweckverband Tierkörperbeseitigung has a legitimate regional monopoly in its disposal area, in which it does not face any legal competition. However, the Commission does not draw the necessary conclusion from this that any — even just potential — effect on trade between Member States or distortion of competition must be ruled out because the Zweckverband Tierkörperbeseitigung is not in competition with other undertakings, particularly undertakings from other Member States willing to become established.

               4.

               Fourth plea in law: infringement of Article 106(2) TFEU on account of an erroneous assessment of that provision’s conditions for approval. In particular the Commission fails to recognise in the contested decision that it must, under that provision, ascertain whether compensation for services of general interest amounts to overcompensation. It may not, however, discount the requirements of that provision by questioning the level of costs of provision, the appropriateness of political decisions taken by the national authorities in that field or the economic efficiency of the operator.

               5.

               Fifth plea in law: interference in the division of powers between the European Union and Member States and breach of the subsidiarity principle of European Union law in so far as the Commission flagrantly disregards the right of assessment of the Member States and the subdivisions of those States in relation to the determination and definition of services of general interest by substituting its own assessment for the decision of the competent authorities (infringement of Article 14 TFEU and of Article 5(3) TEU).

               6.

               Sixth plea in law: error of assessment on the part of the Commission and breach of the general prohibition of discrimination under European Union law, in that the Commission did not confine itself to an examination of manifest errors of assessment in its review of the definition of public service.

               7.

               Seventh plea in law: failure to state reasons for the contested decision (infringement of Article 296(2) TFEU), since the Commission does not comment in that decision on the ‘manifest error of assessment’, within the meaning of the case-law of the Courts of the Union, made by the competent authorities, the legislature and the Bundesverwaltungsgericht (German Federal Administrative Court) in describing the provision of reserve capacity to cope with epidemics as a service of general economic interest.


title: Case C-295/00: Action brought on 1 August 2000 by the Commission of the European Communities against the Italian Republic

text:
7.10.2000               EN                       Official Journal of the European Communities                                         C 285/3
If the first question is to be answered in the affirmative:                 May a Member State continue, in particular after the adoption
                                                                            of Directive 92/51/EEC on a second general recognition
                                                                            system (1), to reserve an activity allied to medicine, such as that
2.    Are Articles 48(2) and 51 of the EC Treaty (now                       of a non-medical practitioner under the German Heilpraktiker-
      Articles 39(2) and 42 EC) and Regulation (EEC)                        gesetz (Law on non-medical practitioners, RGBl I 251/1939)
      No 1408/71 to be interpreted as precluding national                   in the version currently in force, to holders of the diploma of
      rules which, for the qualifying period for a benefit                  doctor, or is that now precluded in particular by Article 43
      stemming from the insurance contingency of reduced                    EC (formerly Article 52 of the EC Treaty) on freedom of
      capacity for work not to apply, require not only that the             establishment and Article 50 EC (formerly Article 60 of the EC
      insurance contingency is the result of an accident at work,           Treaty) on freedom to provide services?
      but also that the insurance contingency materialised in
      respect of a person insured compulsorily with a pension
      insurance institution under the (Austrian) Allgemeines                Do the said provisions of European law preclude national
      Sozialversicherungsgesetz (General Law on Social Secur-               provisions which reserve training for activities which are
      ity) (ASVG) or another (Austrian) federal law or in respect           regulated by legal provisions in the field of health to the
      of a person insured privately under Paragraph 19a of the              institutions designated for that purpose and prohibit the
      (Austrian) Allgemeines Sozialversicherungsgesetz (ASVG)               offering or procuring of such training by other persons or
      and therefore do not cover accidents at word sustained                institutions and advertising therefor, even if that training
      during employment in other Member States?                             relates only to certain branches of medical activity?
3.    Are Articles 48(2) and 51 of the EC Treaty (now
      Articles 39(2) and 42 EC) to be interpreted as contrary to
      Article 9a of Regulation (EEC) No 1408/71 and national                (1) OJ L 209 of 24.7.1992, p. 25.
      rules which preclude in general any prolongation of the
      reference period in respect of the period during which a
      pension is received or limits such prolongation to cases
      of entitlement to a pension stemming from the statutory
      accident insurance of the Member State concerned?
(1) OJ, English Special Edition 1971 (II), p. 2.
(2) OJ 1983 L 230, p. 6.                                                    Action brought on 1 August 2000 by the Commission of
(3) OJ 1992 136, p. 28.                                                       the European Communities against the Italian Republic
                                                                                (Case C-295/00)
                                                                                (2000/C 285/07)
                                                                            An action against the Italian Republic was brought before the
                                                                            Court of Justice of the European Communities on 1 August
                                                                            2000 by the Commission of the European Communities,
                                                                            represented by Enrico Traversa, Legal Adviser, and Bernard
Reference for a preliminary ruling from the Oberster                        Mongin, of its Legal Service, acting as Agents, with an address
Gerichtshof, Austria, by order of that court of 13 July                     for service in Luxembourg at the office of Carlos Gómez de la
2000 in the case of Deutsche Paracelsus Schulsen für                        Cruz, Wagner Centre, Kirchberg.
          Naturheilverfahren GmbH v Kurt Gräbner
                                                                            The applicant claims that the Court should:
                          (Case C-294/00)
                                                                            (a)   declare that, by maintaining in force a tax payable by
                                                                                passengers disembarking or embarking in the ports of
                          (2000/C 285/06)                                         Genoa, Naples and Trieste where those passengers arrive
                                                                                from, or are travelling to, ports in another Member State
                                                                                or a third country, whereas no such tax is levied in the
Reference has been made to the Court of Justice of the                            case of carriage between two ports located on Italian
European Communities by an order of the Oberster Gerichts-                        territory, the Italian Republic has failed to comply with
hof (Supreme Court), Austria, of 13 July 2000, which was                          its obligations under Article 1 of Council Regulation
received at the Court Registry on 31 July 2000, for a prelimi-                    (EEC) No 4055/86 (1) of 22 December 1986 applying the
nary ruling in the case of Deutsche Paracelsus Schulen für                        principle of freedom to provide services to maritime
Naturheilverfahren GmbH v Kurt Gräbner on the following                           transport between Member States and between Member
questions:                                                                        States and third countries;
 ---pagebreak--- C 285/4                 EN                   Official Journal of the European Communities                                     7.10.2000
(b) order the Italian Republic to pay the costs.                              T-312/97, T-313/97, T-315/97, T-600/97 to T-607/97,
                                                                              T-1/98, T-3/98 to T-6/98 and T-23/98;
Pleas in law and main arguments                                         2.    alternatively, set aside that judgment in so far as it
                                                                              imposes the obligation to recover the aid granted together
Article 32(d) of Italian Law No 82/1963 provides for the                      with interest thereon;
payment of a tax by passengers disembarking or embarking in
the ports of Genoa, Naples and Trieste where those passengers           3.    order the Commission of the European Communities to
arrive from, or are travelling to, places in another Member                   pay the costs in any event.
State or a third country, whereas no such tax is levied in the
case of carriage between two places located on Italian territory.
                                                                        Pleas in law and main arguments
That manifest difference between tax regimes has a substan-
tially adverse effect on the exercise by the economic operators
concerned of their freedom to provide services, and therefore           The first plea concerns the allegedly erroneous characterisation
constitutes a clear restriction on freedom to provide maritime          of the measures as ‘new’ aid and a lack of reasoning in the
transport passenger services, contrary to Article 1(1) of Regu-         judgment of the Court of First Instance. The aid granted by the
lation No 4055/86.                                                      Friuli-Venezia Giulia Region, as provided for by the Laws of
                                                                        1981 and 1985, cannot be regarded as ‘new’, despite having
                                                                        from a chronological standpoint been granted after the entry
(1) OJ L 378 of 31.12.1986, p. 1.
                                                                        into force of Regulation No 1018/68 (1) which opened up the
                                                                        activity in question to competition, since the international
                                                                        road haulage sector could not yet be regarded as having been
                                                                        fully liberalised. Moreover, that aid did not have any effect on
                                                                        intra-Community trade and was not such as to have any
                                                                        impact on competition; the judgment of the Court of First
                                                                        Instance does not contain sufficient reasoning on those points.
Appeal brought on 3 August 2000 by the Italian Republic
against the judgement delivered on 15 June 2000 by the                  The second plea concerns alleged infringement of the principle
Fourth Chamber (Extended Composition) of the Court of                   of the protection of legitimate expectations and of the principle
First Instance of the European Communities in Joined                    of reasonableness. The effect of the judgment of the Court of
Cases T-298/97, T-312/97, T-313/97, T-315/97, T-600/97                  First Instance requiring Italy to recover the aid granted from
to T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 between               1 July 1990 onwards for international transport operations is
Mauro Alzetta and Others, supported by the Italian                      contrary to the aforesaid principles, in particular because it
Republic, and the Commission of the European Communi-                   was not until November 1995 that the Commission com-
                                  ties                                  menced the procedure contesting that aid. In addition, the
                                                                        operation of the decision will have very grave occupational
                                                                        and social consequences.
                         (Case C-298/00 P)
                          (2000/C 285/08)                               (1) OJ L 175 of 23.7.1968, p. 13.
An appeal against the judgment delivered on 15 June 2000 by
the Fourth Chamber (Extended Composition) of the Court of
First Instance of the European Communities in Joined Cases
T-298/97, T-312/97, T-313/97, T-315/97 ,T-600/97 to
T-607/97, T-1/98, T-3/98 to T-6/98 and T-23/98 between
Mauro Alzetta and Others, supported by the Italian Republic,
and the Commission of the European Communities was
brought before the Court of Justice of the European Communi-
ties on 3 August 2000 by the Italian Republic, represented by           Action brought on 7 August 2000 by the Commission of
Prof. Umberto Leanza, acting as Agent, assisted by Giacomo               the European Communities against the French Republic
Aiello, Avvocato dello Stato, with an address for service in
Luxembourg at the Italian Embassy, 5 Rue Marie-Adélaïde.
                                                                                (Case C-302/00)
The appellant claims that the Court should:
                                                                                (2000/C 285/09)
1.    set aside in its entirety the judgment delivered on 15 June
      2000 by the Court of First Instance (Fourth Chamber,              An action against the French Republic was brought before the
      Extended Composition) in Joined Cases T-298/97,                   Court of Justice of the European Communities on 7 August


title: Case C-346/03: Reference for a preliminary ruling by the Tribunale di Cagliari — Sezione Civile — by order of that Court of 29 April 2003 in the case of Giuseppe Atzeni and Others against Regione Autonoma della Sardegna

text:
C 264/16                 EN                         Official Journal of the European Union                                            1.11.2003
4.    Irrespective of progressive limits or thresholds, must                (3) Seventh Council Directive 83/349/EEC of 13 June 1983 based on
      those directives and, in particular, Article 44(3)(g) of the              the Article 54 (3) (g) of the Treaty on consolidated accounts (OJ
      EC Treaty, Articles 2(1)(f) and 6 of the first directive                  L 193 of 18.7.1983, p. 1).
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the           (4) Council Directive 90/605/EEC of 8 November 1990 amending
                                                                                Directive 78/660/EEC on annual accounts and Directive 83/349/
      fourth directive (Directive 78/660/EEC), as consolidated                  EEC on consolidated accounts as regards the scope of those
      by Directive 83/349 and Directive 90/605), be interpreted                 Directives (OJ L 317 of 16.11.1990, p. 60).
      as meaning that that legislation precludes a law of a
      Member State which does not make it a punishable
      offence for companies to infringe obligations concerning
      disclosure and the provision of accurate information
      where the false statements or the fraudulent omissions
      and, thus, the disclosures and statements which do not
      give a true and fair view of the company’s assets and
      liabilities and financial position do not distort ‘to an              Reference for a preliminary ruling by the Tribunale di
      appreciable extent’ the company’s assets, liabilities and             Cagliari — Sezione Civile — by order of that Court of
      financial position (even though it is for the national                29 April 2003 in the case of Giuseppe Atzeni and Others
      legislature to define the concept of ‘appreciable distor-                       against Regione Autonoma della Sardegna
      tion’?
                                                                                (Case C-346/03)
5.    Must those directives and, in particular, Article 44(3)(g)
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive                                 (2003/C 264/26)
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated
      by Directive 83/349 and Directive 90/605), be interpreted
                                                                            Reference has been made to the Court of Justice of the
      as meaning that that legislation precludes a law of a
                                                                            European Communities by order of the Tribunale di Cagliari
      Member State which, in response to an infringement by
                                                                            — Sezione Civile (Cagliari District Court — Civil Chamber) of
      companies of those obligations concerning disclosure
                                                                            29 April 2003, received at the Court Registry on 6 August
      and the provision of accurate information imposed on
                                                                            2003, for a preliminary ruling in the case of Giuseppe Atzeni
      them in order to safeguard ‘the interests of both members
                                                                            and Others against Regione Autonoma della Sardegna on the
      and third parties’, allows only members and creditors to
                                                                            following questions on the validity of Commission Decision
      seek imposition of a penalty, thereby excluding third
                                                                            No 612/97 (1), with regard to the following defects:
      parties from any general and effective protection?
                                                                            (a)   lack of competence of the Commission to adopt the
                                                                                contested decision inasmuch as it infringes Article 32 of
6.    Must those directives and, in particular, Article 44(3)(g)                  the Treaty on European Union in conjunction with
      of the EC Treaty, Articles 2(1)(f) and 6 of the first directive             Articles 33, 34, 35, 36, 37 and 38 thereof;
      (Directive 68/151/EEC) and Article 2(2), (3) and (4) of the
      fourth directive (Directive 78/660/EEC), as consolidated              (b) infringement of the rules which govern the procedure
      by Directive 83/349 and Directive 90/605), be interpreted                   provided for in Article 88(1) of the Treaty on European
      as meaning that that legislation precludes a law of a                       Union;
      Member State which, in response to the infringement by
      companies of those obligations concerning disclosure                  (c)   infringement of the rules which govern the procedure
      and the provision of accurate information imposed on                        provided for in Article 88(2) and (3) of the Treaty on
      them in order to safeguard ‘the interests of both members                   European Union;
      and third parties’, provides for prosecution machinery and
      a sanctionative system which are markedly differentiated,
                                                                            (d) failure to provide a statement of reasons as required
      whereby the possibility of the imposition of a punishment
                                                                                by Article 253 of the Treaty on European Union in
      upon complaint being made, together with more serious
                                                                                conjunction with Articles 88(3) and 87(1) thereof;
      and effective penalties, is reserved solely for infringements
      occasioning loss to members and creditors?
                                                                            (e)   infringement and misapplication of Council Regulation
                                                                                No 797/85 (2) on improving the efficiency of agricultural
                                                                                structures;
(1) First Council Directive 68/151/EEC of 9 March 1968 on co-               (f)   infringement of and failure to observe ‘practice for aid to
    ordination of safeguards which, for the protection of the interests           farms in difficulty’ and the ‘Community guidelines on
    of members and others, are required by Member States of                       State aid for rescuing and restructuring firms in difficulty’.
    companies within the meaning of the second paragraph of
    Article 58 of the Treaty, with a view to making such safeguards
    equivalent throughout the Community (English special edition...:
                                                                            (1) OJ L 248 of 11.9.1997, p. 27.
    Series-I I Chapter 1968(I), p. 41).
                                                                            (2) OJ L 93 of 30.3.1985, p. 1.
(2) Fourth Council Directive 78/660/EEC of 25 July 1978 based on
    Article 54 (3) (g) of the Treaty on the annual accounts of certain
    types of companies (OJ L 222 of 14.8.1978, p. 11).


               19.6.2010

               EN

               Official Journal of the European Union

               C 161/1

      (2010/C 161/01)
      Last publication of the Court of Justice in the Official Journal of the European Union

            OJ C 148, 5.6.2010

         Past publications

         OJ C 134, 22.5.2010

         OJ C 113, 1.5.2010

         OJ C 100, 17.4.2010

         OJ C 80, 27.3.2010

         OJ C 63, 13.3.2010

         OJ C 51, 27.2.2010

      These texts are available on:
      EUR-Lex: http://eur-lex.europa.eu


title: Case C-124/99: Reference for a preliminary ruling from the Sozialgericht (Social Court), Münster, by order of that court of 12 March 1999 in the case of Carl Borawitz v Landesversicherungsanstalt Westfalen, joined party: Federal Republic of Germany

text:
C 174/2                EN                    Official Journal of the European Communities                                        19.6.1999
Would the answer be different if, before the product was                     States concerning the pursuit of television broadcasting
reimported into the Community, the purchaser in the non-                     activities, (1) and under Article 59 of the Treaty;
member country sold it to an undertaking with which he
was personally and commercially connected, which is also                     — by failing to adopt within the prescribed period the
established in that non-member country?                                          laws, regulations and administrative provisions needed
                                                                                to comply in full with Article 22 of Direc-
                                                                                tive 89/522/EEC,
                                                                             — by providing that rules different from those applicable
                                                                                to the broadcasting of services intended for the public
                                                                                in France are to apply to satellite broadcasting of
Reference for a preliminary ruling from the Sozialgericht                        audiovisual communication services in foreign
(Social Court), Münster, by order of that court of 12 March                      languages, and
1999 in the case of Carl Borawitz v Landesversicherungs-
anstalt Westfalen, joined party: Federal Republic of Germ-                   — by not adopting measures to ensure that television
                               any                                               services using a frequency not managed by the Conseil
                                                                                Supérieur de l’Audiovisuel comply with the law appli-
                         (Case C-124/99)                                         cable to the broadcasting of services intended for the
                                                                                public in France,
                         (1999/C 174/03)
                                                                             the French Republic has failed to fulfil its obligations under
Reference has been made to the Court of Justice of the                       Directive 89/522/EEC, in particular Articles 2(1), 22 and
European Communities by an order of the Sozialgericht (Social                25 thereof;
Court), Tenth Chamber, Münster, of 12 March 1999, which                 2. Order the French Republic to pay the costs.
was received at the Court Registry on 14 April 1999, for a
preliminary ruling in the case of Carl Borawitz v Landesversich-
erungsanstalt Westfalen, joined party: Federal Republic of              Pleas in law and main arguments
Germany, on the following question:
                                                                        The Commission makes five charges against the French rules.
Is Paragraph 118(2a) of the Sixth Book of the Sozialgesetzbuch          The first two concern France as a receiving country and the
(Code of Social Law, ‘SGB VI’) incompatible with European               last three as a country of establishment.
Community law, in particular the principle of equal treatment,
in so far as the limitation on pension back payments is greater         First, Law 86-1067 of 30 September 1986 on freedom of
when payment is made abroad?                                            communication introduces, for retransmission of television
                                                                        broadcasts on French territory, an obligation to conclude an
                                                                        agreement with the Conseil Supérieur de l’Audiovisuel.
                                                                        The application of such a system of prior authorisation for
                                                                        television broadcasting services falling within the jurisdiction
Action brought on 20 April 1999 by the Commission of                    of another Member State is incompatible with Article 59 of
 the European Communities against the French Republic                   the EC Treaty or with Article 2(2) of the abovementioned
                                                                        directive to the extent to which that agreement relates to
                         (Case C-140/99)                                matters coordinated by the directive.
                         (1999/C 174/04)                                Second, it is apparent form Article 4 of Decree 92-882 of
                                                                        1 September 1992, which was adopted for the implementation
An action against the French Republic was brought before the            of certain provisions of the abovementioned law, that the
Court of Justice of the European Communities on 20 April                latter have been made applicable to services broadcast from
1999 by the Commission of the European Communities,                     France and, for their distribution by cable, to the services
represented by Karen Banks, of its Legal Service, acting as             which have established their broadcasting activities outside
Agent, with an address for service in Luxembourg at the office          France for the sole purpose of avoiding the rules which would
of Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                  otherwise apply to them.
The Commission of the European Communities claims that                  The criterion chosen as the basis for French jurisdiction,
the Court should:                                                       namely ‘services broadcast’, is not precise enough; only a
                                                                        criterion based on the establishment of the service in question
1. Declare that,                                                        may, according to the case-law, be used. Moreover, that
                                                                        provision also leads to the result that a service may not be
    — by keeping in force a system of prior authorisation for           established outside France, thereby limiting the freedom to
        the retransmission on French territory of television            provide services.
        broadcasts from other Member States, whereby an
        agreement must be concluded with the Conseil Supérie-           Third, the French legislation only incompletely transposes
        ur de l’Audiovisuel, and                                        Article 22 of the directive concerning measures to be taken for
                                                                        the protection of minors. First, the measures put into effect by
    — by keeping force Article 4 of Decree 91-882,
                                                                        the French legislation do not cover television broadcasting
    the French Republic has failed to fulfil its obligations under      services falling within French jurisdiction but not using any
    Article 2(2) of Council Directive 89/552/EEC of 3 October           French network (terrestrial, cable or satellite). Second, the
    1989 on the coordination of certain provisions laid down            measures do not have sufficient binding force, since they
    by law, regulation or administrative action in Member               merely impose penalties.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 17 November 1998 in Case T-131/97: Carmen Gómez de Enterría y Sanchez v. European Parliament (Officials - Retirement - Article 50 of the Staff Regulations)

text:
C 397/30              EN               Official Journal of the European Communities                                  19.12.98
J. Palacio GonzaÂlez, Administrator, for the Registrar, has         JUDGMENT OF THE COURT OF FIRST INSTANCE
given a judgment on 17 November 1998, in which it:                                    of 12 November 1998
                                                                  in Case T-294/97: Manuel TomaÂs Carrasco Benítez v.
1. Dismisses the action;                                                  Commission of the European Communities (1)
                                                                  (Officials Ð Internal competition reserved for Category A
2. Orders the parties to bear their own costs.                    temporary staff Ð Application by a Grade B 5 official Ð
                                                                           Unlawfulness of the notice of competition)
(1) OJ C 54, 22.2.1997.                                                                    (98/C 397/59)
                                                                                (Language of the case: French)
                                                                  In Case T-294/97: Manuel TomaÂs Carrasco Benítez, an
                                                                  official of the Commission of the European Communities,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                         residing in London, represented by Jean-NoeÈl Louis,
                    of 17 November 1998                           Thierry Demaseure, FrancËoise Parmentier and, initially,
                                                                  Ariane Tornel, of the Brussels Bar, with an address for
in Case T-131/97: Carmen Gómez de Enterría y Sanchez              service in Luxembourg at the Offices of Fiduciaire Myson
                  v. European Parliament (1)                      SARL, 30 Rue de Cessange, v. Commission of the
(Officials Ð Retirement Ð Article 50 of the Staff                 European Communities (Agent: Julian Currall) Ð
                         Regulations)                             application for annulment of the decision of the selection
                                                                  board in competition COM/T/A/97 not to admit the
                        (98/C 397/58)                             applicant to the tests in the competition, which had been
                                                                  organised in order to constitute a reserve list of assistant
                                                                  administrators, administrators and principal administrators
               (Language of the case: French)                     Ð the Court of First Instance (Fourth Chamber),
                                                                  composed of: P. Lindh, President, and K. Lenaerts and
                                                                  J. D. Cooke, Judges; J. Palacio GonzaÂlez, Administrator,
In Case T-131/97: Carmen Gómez de Enterría y Sanchez,             for the Registrar, has given a judgment on 12 November
a former official of the European Parliament, represented         1998, in which it:
by Eric Boigelot, of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Louis Schiltz, 2
Rue du Fort Rheinsheim, v. European Parliament (Agent:            1. Annuls the decisions of the selection board of 14 April
Manfred Peter, assisted by Denis Walbroeck) Ð                         and 12 May 1997 in internal competition COM/T/A/
application for annulment of the decision adopted                     97, refusing to admit Manuel TomaÂs Carrasco Benítez
pursuant to Article 50 of the Staff Regulation of officials           to the tests in that competition;
of the European Communities by the European Parliament
at its meeting on 15 and 16 July 1996, by which it retired
the applicant and rejected her applications for two other         2. Orders the Commission to pay the costs.
posts in the same grade Ð the Court of First Instance
(First Chamber), composed of: B. Vesterdorf, President,           (1) OJ C 26, 24.1.1998.
R. M. Moura Ramos and P. Mengozzi, Judges; A. Mair,
Administrator, for the Registrar, has gien a judgment on
17 November 1998, in which it:
1. Declares the action inadmissible in so far as it seeks
     annulment of that section of the operative part of the                      ORDER OF THE PRESIDENT
     decision adopted by the European Parliament at its                     OF THE COURT OF FIRST INSTANCE
     meeting on 15 and 16 July 1996 which confirms the
     rejection of the application by the applicant for the                             of 21 October 1998
     post of Director-General of the Parliament's                 in Case T-40/95 R II: V v. Commission of the European
     Directorate-General 1;                                                                 Communities
                                                                  (Officials Ð Applications for interim measures Ð
2. Dismisses the remainder of the action;                              Disciplinary procedure Ð No need to adjudicate)
                                                                                (98/C 397/60)
3. Orders the parties to bear their own costs.
                                                                                (Language of the case: French)
(1) OJ C 212, 12.7.1997.
                                                                  In Case T-40/95 R II: V, an official of the Commission of
                                                                  the European Communities, represented by Jean-NoeÈl