title: Case T-274/05: Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/56

         Action brought on 20 July 2005 by The Black & Decker Corporation against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-274/05)
   (2005/C 217/114)
   Language in which the application was lodged: English
   An action against the Office for Harmonisation in the Internal Market (Trade Marks and Designs) was brought before the Court of First Instance of the European Communities on 20 July 2005 by The Black & Decker Corporation, established in Towson, Maryland (USA), represented by P. Harris, Solicitor.
   Atlas Copco Aktiebolag established in Stockholm (Sweden), was also a party to the proceedings before the Board of Appeal.
   The applicant claims that the Court should:

               —

               annul the contested decision of the First Board of Appeal of the OHIM of 3 May 2005 (Case R 788/2004-1);

               —

               declare opposition proceedings B622 318 inadmissible;

               —

               order that the costs occasioned by the applicant in the course of the present proceedings and its appeal be borne by the OHIM.

         Pleas in law and main arguments

               Applicant for Community trade mark:

               The applicant

               Community trade mark concerned:

               Colour mark in black and yellow in Class 7 (manually operated portable electric power tools etc.)

               Proprietor of mark or sign cited in the opposition proceedings:

               Atlas Copco Aktiebolag

               Trade mark or sign cited in opposition:

               Non-registered trade marks and signs, used in the course of trade in all Member States for power tools

               Decision of the Opposition Division:

               Rejects opposition as inadmissible

               Decision of the Board of Appeal:

               Annuls the contested decision and remits the case to the Opposition Division for further prosecution

               Pleas in law:

               The applicant claims that the opposition should have been declared inadmissible as it did not identify sufficiently clearly the earlier marks and signs relied on, in violation of Rule 18(1) of Regulation No. 2868/1995 (1).

      (1)  Commission Regulation (EC) No 2868/95 of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, OJ L 303, 15/12/1995, p. 1


title: Case T-10/08: Judgment of the General Court of 9 September 2011 — Kwang Yang Motor Co. v OHIM — Honda Giken Kogyo (An internal combustion engine with the vent on the top) (Community design — Invalidity proceedings — Registered Community design representing an internal combustion engine with the vent on the top — Earlier national design — Ground for invalidity — No individual character — Visible features of a component part of a complex product — No different overall impression — Informed user — Degree of freedom of the designer — Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/36

         Judgment of the General Court of 9 September 2011 — Kwang Yang Motor Co. v OHIM — Honda Giken Kogyo (An internal combustion engine with the vent on the top)
   (Case T-10/08) (1)

   (Community design - Invalidity proceedings - Registered Community design representing an internal combustion engine with the vent on the top - Earlier national design - Ground for invalidity - No individual character - Visible features of a component part of a complex product - No different overall impression - Informed user - Degree of freedom of the designer - Articles 4, 6 and 25(1)(b) of Regulation (EC) No 6/2002)
   2011/C 311/63
   Language of the case: English

      Parties

      Applicant: Kwang Yang Motor Co. (Kaohsiung, Taiwan) (represented by: P. Rath, W. Festl-Wietek and M. Wetzel, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Honda Giken Kogyo Kabushiki Kaisha (Tokyo, Japan) (represented by T. Musmann, H. Timmann, M. Büttner and S. von Petersdorff-Campen, lawyers)

      Re:

   ACTION brought against the decision of 8 October 2007 of the Third Board of Appeal of OHIM (Case R 1337/2006-3), relating to invalidity proceedings for Community designs between Honda Giken Kogyo Kabushiki Kaisha and Kwang Yang Motor Co., Ltd

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Kwang Yang Motor Co., Ltd to pay the costs.

      (1)  OJ C 64, 8.3.2008.


18.3.2000             EN                       Official Journal of the European Communities                                    C 79/43
       Removal from the register of Case T-196/98 (1)                            Removal from the register of Case T-208/99 (1)
                        (2000/C 79/91)                                                             (2000/C 79/93)
                  (Language of the case: Spanish)                                            (Language of the case: German)
By order of 26 November 1999, the President of the Third                  By order of 27 January 2000, the President of the First
Chamber of the Court of First Instance of the European                    Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register                     Communities has ordered the removal from the register of
of Case T-196/98: Eduardo Peña Abizanda and Others v                     Case T-208/99, Martin Bangemann v Council of the European
Commission of the European Communities.                                   Union.
(1) OJ C 48 of 20.2.1999.                                                 (1) OJ C 314 of 30.10.1999.
       Removal from the register of Case T-101/99 (1)                            Removal from the register of Case T-324/99 (1)
                        (2000/C 79/92)                                                             (2000/C 79/94)
                   (Language of the case: Italian)                                            (Language of the case: French)
By order of 25 January 2000, the President of the Second                  By order of 11 January 2000, the President of the First
Chamber of the Court of First Instance of the European                    Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of                  Communities has ordered the removal from the register of
Case T-101/99: Adolfo Kind v Commission of the European                   Case T-324/99: Association des Fonctionnaires Indépendants
Communities.                                                              pour la Défense de la Fonction Publique Européenne (TAO/AFI)
                                                                          and Rosario De Simone v Commission of the European
(1) OJ C 204 of 17.7.1999.                                                Communities.
                                                                          (1) OJ C 34 of 5.2.2000.


title: Case T-29/00: Action brought on 16 February 2000 by Deutsche Post AG against the Commission of the European Communities

text:
C 135/14               EN                     Official Journal of the European Communities                                        13.5.2000
— confirm that the Administrative Circular is null and void              The applicant claims that the Court should:
    due to violation of the rights of the Staff Committee, as set
    out in Art. 46 CoE;                                                  — annul the Commission’s decision of 14 December 1999
                                                                              concerning a proceeding pursuant to Article 14 of Council
— order the defendant pay the costs of the proceedings, in                    Regulation (EEC) No 4064/89 (Case IV/M.1610 — Deut-
    particular the costs of legal representation necessary for                sche Post/trans-o-flex) and cancel the fines imposed
    the applicants, such costs to be fixed and ordered for                    thereby;
    payment by the Court.
                                                                         — order the defendant to pay all the costs of the proceedings
                                                                              which the applicant has incurred;
Pleas in law and main arguments                                          — order the defendant, in the event that the applicant is
                                                                              successful, to reimburse to the latter the costs of the bank
                                                                              guarantee provided by the applicant by way of security for
The applicants are the Staff Committee of the ECB and three                   the payment of the fines.
members of this committee. They seek the comprehensive
withdrawal and annulment of the ECB’s administrative circular
endorsing an internet usage policy for its staff members.                Pleas in law and principal arguments
In support of its case, the applicants mainly put forward the            In the contested decision, the Commission alleges that the
following pleas in law:                                                  applicant deliberately supplied incorrect and misleading infor-
                                                                         mation concerning the acquisition of control over trans-o-flex
                                                                         Schnell-Lieferdienste GmbH in the notification given by it in a
— By adopting the contested circular, the defendant infringed            proceeding pursuant to Regulation (EEC) No 4064/89 in
    the Staff Committee’s right to consultation as laid down in          Case IV/M.1447 Deutsche Post/trans-o-flex. In addition, the
    Article 46 and 45 of the Conditions of Employment for                applicant allegedly supplied deliberately incorrect information
    Staff of the ECB (CoE). The circular laid down rules and             in response to several requests for information made by the
    regulations concerning working conditions of the staff, as           Commission. For that reason, a fine of EUR 50 000 has been
    related to in Article 45 CoE, and could thereof not be               imposed on the applicant on the basis of Article 14(1)(b) and
    adopted without prior consultation of the staff committee.           (c) of that regulation.
— Moreover, the circular provides for monitoring the staff’s             The applicant contests the decision on the grounds that the
    internet usage. This potentially endangers the right of              defendant applied a legally untenable interpretation to Article
    personality of the individual employees. A prior consul-             14(1)(b) and the first alternative in Article 14(1)(c). In addition,
    tation of the Committee was thereof necessary to safeguard           the Commission failed to exercise its discretion properly. The
    the staffs’ individual rights.                                       information supplied by the applicant was neither incorrect
                                                                         nor misleading, either as regards the notification of the
                                                                         proposed merger or as regards the answers given in response
                                                                         to the request for information.
Action brought on 16 February 2000 by Deutsche Post
AG against the Commission of the European Communi-                       Action brought on 16 February 2000 by Henkel KGaG
                                ties                                     against the Office for Harmonisation in the Internal
                                                                                Market (Trade Marks and Designs)
                         (Case T-29/00)
                                                                                (Case T-30/00)
                        (2000/C 135/27)                                                           (2000/C 135/28)
                                                                                (Language of the case: German)
                   (Language of the case: German)
                                                                         An action against the Office for Harmonisation in the Internal
An action against the Commission of the European Communi-                Market (Trade Marks and Designs) was brought before the
ties was brought before the Court of First Instance of the               Court of First Instance of the European Communities on
European Communities on 16 February 2000 by Deutsche                     16 February 2000 by Henkel KGaG, of Düsseldorf (Germany),
Post AG, of Bonn (Federal Republic of Germany), represented              represented by Holger Friedrich Wissel and Christian Oster-
by Ferdinand Hermanns, Rechtsanwalt, of Meerbusch, with an               rieth, Rechtsanwälte, of Messrs Clifford Chance Pünder, Düssel-
address for service in Luxembourg at the Chambers of Marc                dorf, with an address for service in Luxembourg at the
Loesch, 11 Rue Goethe.                                                   Chambers of Aloyse May, 398 Route d’Esch.


title: Case C-419/99: Action brought on 29 October 1999 by the Commission of the European Communities against the Italian Republic

text:
C 20/12                EN                    Official Journal of the European Communities                                   22.1.2000
Pleas in law and main arguments                                         time-limit expired on 30 September 1997, but the Italian
                                                                        Republic had not adopted the measures necessary to comply
Article 249 EC (formerly Article 189 of the EC Treaty),                 with the directive mentioned in the forms of order sought by
according to which a directive is to be binding, as to the result       the Commission.
to be achieved, upon each Member State to which it is
addressed, requires Member States to observe the time-limits
laid down in directives for their transposition. The time-limit         (1) OJ L 48 of 19 February 1997, p. 20.
in the present case expired on 30 June 1998 without the
Italian Republic having adopted the necessary provisions in
order to comply with the directive referred to in the Com-
mission’s application. Failure by a State to comply with its
obligations — Failure to transpose, within the period pre-
scribed for that purpose, Directive 97/68/EC of the European
Parliament and of the Council of 16 December 1997 on the
approximation of the laws of the Member States relating to
measures against the emission of gaseous and particulate                Action brought on 29 October 1999 by the Commission
pollutants from internal combustion engines to be installed in          of the European Communities against the Italian Republic
non-road mobile machinery.
                                                                                (Case C-420/99)
(1) OJ L 59 of 27.2.1998, p. 1.
                                                                                (2000/C 20/25)
                                                                        An action against the Italian Republic was brought before
                                                                        the Court of Justice of the European Communities by the
                                                                        Commission of the European Communities, represented by
Action brought on 29 October 1999 by the Commission                     Richard Wainwright, of its Legal Service, and Giacinto Bisogni,
of the European Communities against the Italian Republic                a judge of the Court of Appeal, seconded to that Legal Service,
                                                                        acting as Agents, with an address for service at the office of
                                                                        Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.
                         (Case C-419/99)
                          (2000/C 20/24)                                The applicant claims that the Court should:
An action against the Italian Republic was brought before               — declare that, by failing to adopt or, in any event, by failing
the Court of Justice of the European Communities by the                     to communicate to the Commission, the laws, regulations
Commission of the European Communities, represented by                      and administrative provisions necessary to comply with
Richard Wainwright, of its Legal Service, and Giacinto Bisogni,             Directive 96/70/EC (1) of the European Parliament and of
a judge of the Court of Appeal, seconded to that Legal Service,             the Council of 28 October 1996 relating to the exploi-
acting as Agents, with an address for service at the office of              tation and marketing of natural mineral waters, the Italian
Carlos Gómez de la Cruz, Wagner Centre, Kirchberg.                         Republic has failed to fulfil its obligations under that
                                                                            directive,
The applicant claims that the Court should:
                                                                        — order the Italian Republic to pay the costs.
— declare that, by failing to adopt or, in any event, by failing
     to communicate to the Commission, the laws, regulations
     and administrative provisions necessary to comply with             Pleas in law and main arguments
     Directive 96/84/EC (1) of the European Parliament and of
     the Council of 19 December 1996 amending Directive
     89/398/EEC on the approximation of the laws of the                 Article 249 EC (formerly Article 189 of the EC Treaty), in
     Member States relating to foodstuffs intended for particular       accordance with which a directive is binding, as to the result
     nutritional uses, the Italian Republic has failed to fulfil its    to be achieved, upon each Member State to which it is
     obligations under that directive,                                  addressed, requires those Member States to comply with the
                                                                        time-limits for implementation laid down in the directive.
— order the Italian Republic to pay the costs.                          The time-limit expired on 28 October 1997, but the Italian
                                                                        Republic had not adopted the measures necessary to comply
                                                                        with the directive mentioned in the forms of order sought by
Pleas in law and main arguments                                         the Commission.
Article 249 EC (formerly Article 189 of the EC Treaty), in
accordance with which a directive is binding, as to the result          (1) OJ L 299 of 23 November 1996, p. 26.
to be achieved, upon each Member State to which it is
addressed, requires those Member States to comply with the
time-limits for implementation laid down in the directive. The


title: Case T-352/10: Action brought on 26 August 2010 — Milux v OHMI (RECTALCONTROL)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/54

      Action brought on 26 August 2010 — Milux v OHMI (RECTALCONTROL)
      (Case T-352/10)
      ()
      (2010/C 288/101)
      Language of the case: English

         Parties

         Applicant: Milux Holding SA (Luxembourg, Luxembourg) (represented by: J. Bojs, lawyer)

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

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 July 2010 in case R 1443/2009-4;

                  —

                  Order the defendant to pay the costs.

         Pleas in law and main arguments

         Community trade mark concerned: The word mark ‘RECTALCONTROL’ for goods and services in classes 9, 10 and 44

         Decision of the examiner: Refused the application for a Community trade mark

         Decision of the Board of Appeal: Dismissed the appeal

         Pleas in law: Infringement of Council Regulation No 207/2009, as the Board of Appeal misapplied the principle of non-discrimination and equal treatment to the facts in this case; in the alternative, infringement of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 207/2009, as the Board of Appeal erred in its conclusion that the trade mark applied for does not possess sufficient inherent distinctiveness.


title: Case C-278/06: Reference for a preliminary ruling from the Bundesverwaltungsgericht, lodged on 26 June 2006 — Manfred Otten v Landwirtschaftskammer Niedersachsen

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/20

         Reference for a preliminary ruling from the Bundesverwaltungsgericht, lodged on 26 June 2006 — Manfred Otten v Landwirtschaftskammer Niedersachsen
   (Case C-278/06)
   (2006/C 212/35)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Manfred Otten

      Defendant: Landwirtschaftskammer Niedersachsen
   Question(s) referred
   Is Article 7(2) of Council Regulation (EEC) No 3950/92 of 28 December 1992 (1), as amended by Council Regulation (EC) No 1256/1999 of 17 May 1999 (2), to be interpreted as meaning that on expiry of rural leases on a milk-production holding or a milk-production area the attached reference quantities can revert to the lessor even if that lessor is not, or is not about to become, a producer himself, insofar as he transfers the reference quantity as soon as possible through a State sales office to a third party who has that status?

      (1)  OJ 1992 L 405, p. 1.

      (2)  OJ 1999 L 160, p. 73.


title: Case T-270/10: Action brought on 8 June 2010 — Conceria Kara v OHIM (KARA)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/54

         Action brought on 8 June 2010 — Conceria Kara v OHIM (KARA)
   (Case T-270/10)
   ()
   2010/C 221/87
   Language in which the application was lodged: Italian

      Parties

      Applicant: Conceria Kara Srl (Trezzano sul Naviglio, Italy) (represented by: P. Picciolini, lawyer)

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

      Other party/parties to the proceedings before the Board of Appeal of OHIM: Dima — Gida Tekstil Deri Insaat Maden Turizm Orman Urünleri Sanayi Ve Ticaret Ltd Sti

      Form of order sought

               —

               Annulment of the decision of the Second Board of Appeal of 29 March 2010 on the appeal against the decision of the Opposition Division in Case B 1171453 in proceedings brought by Conceria Kara rejecting Community trade mark application No 5346457.

      Pleas in law and main arguments

      Applicant for a Community trade mark: DIMA — TEKSTIL DERI INSAAT MADEM TURIZM ORMAN URÜNLERE SANAYI VE TICARET LTD. STI.

      Community trade mark concerned: Word mark ‘KARRA’ for goods and services in Classes 3, 9, 18, 20, 24, 25 and 35.

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

      Mark or sign cited in opposition: Italian figurative marks ‘KARA’ (No 765 532, for goods in Class 35, and No 761 972 for goods and services in Classes 18 and 25), Community figurative trade mark No 887 810 (‘KARA’) for goods in, inter alia, Classes 18 and 25, and the business name of the Italian company ‘CONCERIA KARA S.R.L.’, the right to the use of which is claimed in relation to the same goods and services for earlier marks.

      Decision of the Opposition Division: The opposition was upheld in part.

      Decision of the Board of Appeal: The appeal was dismissed.

      Pleas in law: Failure to state reasons and misinterpretation and misapplication of Article 8(1)(b) of Regulation No 207/2009.


title: Case T-5/05: Action brought on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V. against the Commission of the European Communities

text:
               2.4.2005

               EN

               Official Journal of the European Union

               C 82/32

         Action brought on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V. against the Commission of the European Communities
   (Case T-5/05)
   (2005/C 82/60)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 10 January 2005 by V.I.C. Verband der Internationalen Caterer in Deutschland e.V., represented by K. Kühne, lawyer.
   The applicant claims that the Court should:

               1.

               annul the refusal, notified by letter of 11 November 2004, of access to the request of the German authorities, sent to the Commission on 12 May 1978, for authorisation to introduce derogating measures;

               2.

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   In the contested letter, the Commission rejected, pursuant to Article 4(5) and (6) of the Regulation on Access to Documents, (1) a request from the applicant to consult the file concerning the request of the Federal Republic of Germany for authorisation to introduce special derogating measures pursuant to Article 27 of the Sixth VAT Directive. (2)

   The applicant claims that the refusal of access to the request constitutes a de facto denial of legal protection vis-à-vis the applicant, because the dismissal of the applicant's appeal in the main proceedings is based on the requested document. The applicant further claims that the refusal to grant access infringes the Regulation on Access to Documents.
   The applicant argues that the refusal of access and, as the case may be, Article 4(5) of the Regulation on Access to Documents infringe Article 1 EU and Articles 21 EC, 207 EC, 253 EC and 255 EC because essentially no reasons are given for the withholding of agreement to disclosure of the requested document.

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001regarding public access to European Parliament, Council and Commission documents (OJ L 145, p. 43).

      (2)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes - Common system of value added tax: uniform basis of assessment (OJ L 145, p. 1).


title: Judgment of the Court (Fifth Chamber) of  15 December 2005  in Case C-250/04: Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 2002/19/EC — Access to electronic communications networks and associated facilities — Failure to transpose within the prescribed period)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/12

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 15 December 2005
   in Case C-250/04: Commission of the European Communities v Hellenic Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/19/EC - Access to electronic communications networks and associated facilities - Failure to transpose within the prescribed period)
   (2006/C 36/22)
   Language of the case: Greek
   In Case C-250/04 Commission of the European Communities (Agents: G. Zavvos and M. Shotter) v Hellenic Republic (Agent: N. Dafniou) — action for failure to fulfil obligations under Article 226 EC, brought on 14 June 2004 — the Court (Fifth Chamber), composed of J. Makarczyk, President of the Chamber, R. Silva de Lapuerta and P. Kūris (Rapporteur), Judges; A. Tizzano, Advocate General; R. Grass, Registrar, gave a judgment on 15 December 2005, in which it:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2002/19/EC of the European Parliament and of the Council of 7 March 2002 on access to, and interconnection of, electronic communications networks and associated facilities (Access Directive), the Hellenic Republic has failed to fulfil its obligations under that directive.

               2.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 201, 07.08.2004.


title: Case C-316/10: Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet

text:
               28.8.2010

               EN

               Official Journal of the European Union

               C 234/28

         Reference for a preliminary ruling from the Vestre Landsret (Denmark) lodged on 1 July 2010 — Danske Svineproducenter v Justitsministeriet
   (Case C-316/10)
   ()
   2010/C 234/45
   Language of the case: Danish

      Referring court

   Vestre Landsret

      Parties to the main proceedings

      Applicant: Danske Svineproducenter

      Defendant: Justitsministeriet

      Question referred

   Is the second paragraph of Article 249 EC [now the second paragraph of Article 267 TFEU] and Article 37 of Council Regulation No 1/2005 (1) on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97, and also Article 3(f) and (g), together with point 1.1(f) and point 1.2 of Chapter II, together with Part D of Chapter VII of Annex I to that regulation to be interpreted as meaning that Member States are precluded from adopting national rules which lay down detailed requirements for internal transport height, inspection height and loading density?

      (1)  Council Regulation (EC) No 1/2005 of 22 December 2004 on the protection of animals during transport and related operations and amending Directives 64/432/EEC and 93/119/EC and Regulation (EC) No 1255/97 (OJ 2005 L 3, p. 1)


title: Joined Cases C-128/07 to C-131/07: Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy)) — Angelo Molinari (C-128/07), Giovanni Galeota (C-129/07), Salvatore Barbagallo (C-130/07), Michele Ciampi (C-131/07) v Agenzia delle Entrate — Ufficio di Latina (Directive 76/207/EEC — Equal treatment for men and women — Redundancy payment — Tax advantage granted at a different age according to the worker's gender)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/10

         Order of the Court (Seventh Chamber) of 16 January 2008 (reference for a preliminary ruling from the Commissione Tributaria Provinciale di Latina (Italy)) — Angelo Molinari (C-128/07), Giovanni Galeota (C-129/07), Salvatore Barbagallo (C-130/07), Michele Ciampi (C-131/07) v Agenzia delle Entrate — Ufficio di Latina
   (Joined Cases C-128/07 to C-131/07) (1)

   (Directive 76/207/EEC - Equal treatment for men and women - Redundancy payment - Tax advantage granted at a different age according to the worker's gender)
   (2008/C 92/16)
   Language of the case: Italian
   Referring court
   Commissione Tributaria Provinciale di Latina
   Parties

      Applicants: Angelo Molinari, (C-128/07), Giovanni Galeota (C-129/07), Salvatore Barbagallo (C-130/07), Michele Ciampi (C-131/07)

      Defendant: Agenzia delle Entrate — Ufficio di Latina
   Re:
   Reference for a preliminary ruling — Commissione Tributaria Provinicale di Latina — Interpretation of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) and Council Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6, p. 24) — Interpretation and scope of the judgment in Case C-207/04 Vergani — Application of a reduced rate of tax in respect of sums received by way of voluntary redundancy incentive for workers who have reached a particular age — Tax advantage granted to workers at different ages according to their gender
   Operative part of the order

               1.

               Following the judgment in Case C-207/04 Vergani [2005] ECR I-7453, in which national legislation was found to be incompatible with Community law, it is for the authorities of the Member State concerned to adopt the general or specific measures necessary to ensure that Community law is complied with in their territory, those authorities retaining the choice of measures to be taken to ensure that national law is changed so as to comply with Community law and that the rights which individuals derive from Community law are given full effect. Where there has been found to be discrimination contrary to Community law, for as long as measures reinstating equal treatment have not been adopted, a national court must set aside any discriminatory provision of national law, without having to request or await its prior removal by the legislature, and apply to members of the disadvantaged category the same arrangements as those enjoyed by the persons in the other category.

               2.

               The derogation provided for in Article 7(1)(a) of Council Directive 79/7/EEC of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security is not applicable to a tax measure such as provided for in Article 17(4a) of Decree No 917 of the President of the Republic of 22 December 1986, as amended by Legislative Decree No 314 of 2 September 1997.

      (1)  OJ C 117, 26.5.2007.


title: Case C-327/01: Action brought on 31 August 2001 by the Commission of the European Communities against Ireland

text:
10.11.2001             EN                    Official Journal of the European Communities                                        C 317/13
European Communities in Joined Cases T-357/99 and                       Action brought on 31 August 2001 by the Commission
T-358/99 between Telefon & Buch VerlagsgmbH and the                             of the European Communities against Ireland
Office for Harmonisation in the Internat Market (Trade Marks
and Designs) (OHIM) was brought before the Court of Justice
of the European Communities on 29 August 2001 (by fax on                                         (Case C-327/01)
27 August 2001) by Telefon & Buch VerlagsgmbH, represented
by Dr Hans Georg Zeiner, Zeiner & Zeiner Chambers, Schil-                                        (2001/C 317/22)
linggasse 6, A-1010 Vienna.
                                                                        An action against Ireland was brought before the Court of
                                                                        Justice of the European Communities on 31 August 2001 by
The appellant claims that the Court should:                             the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.
1.    set aside the judgment of the Court of First Instance of
      14 June 2001 in Joined Cases T-357/99 and T-358/99
      Telefon & Buch VerlagsgmbH v Office for Harmonisation             The Applicant claims that the Court should:
      in the Internat Market;
                                                                        (1) declare that by. failing to adopt the laws, regulations
2.    declare that the words UNIVERSALTELEFONBUCH and                         or administrative provisions necessary to comply with
      UNIVERSALKOMMUNIKATIONSVERZEICHNIS                       are            Council Directive 98/20/EC (1) of 30 March 1998
      capable of comprising European Community trade marks,                   amending Directive 92/14/EEC (2) on the limitation of the
      satisfy the requirements of Article 4 of Regulation                     operation of aeroplanes covered by Part II, Chapter 2,
      No 40/94 and are not merely descriptive within the                      Volume 1 of Annex 16 to the Convention on Inter-
      meaning of Article 7(1)(c) of that regulation;                          national Civil Aviation, second edition (1988) or, in any
                                                                              event, by failing to inform the Commission of those
                                                                              measures, Ireland has failed to fulfil its obligations under
3.    refer the case back to the Office for Harmonisation in the              that Directive;
      Internat Market for further consideration and decision,
      requiring it to follow the view as to the law of the Court
      of Justice of the European Communities;                           (2) order Ireland to pay the costs.
4.    order the Office for Harmonisation in the Internat Market
      to pay the costs of these proceedings.                            Pleas in law and main arguments
                                                                        The pleas in law and main arguments are analogous to those
                                                                        in Case C-323/01 (3); the time-limit for transposition expired
Pleas in law and main arguments                                         on 1 March 1999.
                                                                        (1) OJ L 107, 7.4.1998, p. 4.
Article 7(1)(c) of Council Regulation (EC) No 40/94 of                  (2) OJ L 76, 23.3.1992, p. 21.
20 December 1993 on the Community trade mark (1) has been               (3) See page 12 of this Official Journal.
infringed because it was interpreted too broadly and therefore
incorrectly: the neologisms at issue here, acknowledged by the
Court of First Instance as such, cannot be signs which are
subject to a requirement of availability. It would be an
interference with the creativity of economic operators to
reserve for commercial dealings words which have not yet
been used, or have not yet been used for certain goods or
services, and therefore clearly are also not needed for such            Action brought on 31 August 2001 by the Commission
dealings; that appears untenable on the basis of Regulation                     of the European Communities against Ireland
No 40/94. If the ground for excluding protection, contained
in Article 7(1)(c) of Regulation No 40/94, were interpreted as
broadly as the Court of First Instance has interpreted it in the                                 (Case C-328/01)
contested judgment, Article 12(b) of that regulation would be
superfluous.                                                                                (2001/C 317/23)
                                                                        An action against Ireland was brought before the Court of
(1) OJ L 11, 14.1.1994, p. 1.                                           Justice of the European Communities on 31 August 2001 by
                                                                        the Commission of the European Communities, represented
                                                                        by Mikko Huttunen, acting as agent, with an address for
                                                                        service in Luxembourg.


title: Judgment of the Court of First Instance of 30 June 2005 in Case T-439/03 Ulrike Eppe v the European Parliament (Open competition — Non-admission to tests — Necessary professional experience)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/38

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 30 June 2005
   in Case T-439/03 Ulrike Eppe v the European Parliament (1)

   (Open competition - Non-admission to tests - Necessary professional experience)
   (2005/C 217/85)
   Language of the case: German
   In Case T-439/03: Ulrike Eppe, residing in Hanover (Germany), represented by W. Klöber, lawyer, against the European Parliament (Agents: J. de Wachter and N. Lorenz with an address for service in Luxembourg) — application for, firstly, the annulment of the decisions of the selection board in competition EUR/A/167/02 of 24 February and 28 April 2003 and, secondly, the decision of the Appointing Authority of 17 September 2003 — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Šváby, Judges; H. Jung, Registrar, gave a judgment on 30 June 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders the parties to bear their own costs, including those of the interlocutory proceedings.

      (1)  OJ C of 17.4.2004


title: Case C-485/11: Action brought on 22 September 2011 — European Commission v French Republic

text:
               3.12.2011

               EN

               Official Journal of the European Union

               C 355/9

         Action brought on 22 September 2011 — European Commission v French Republic
   (Case C-485/11)
   2011/C 355/15
   Language of the case: French

      Parties

      Applicant: European Commission (represented by: A. Bordes and G. Braun, Agents)

      Defendant: French Republic

      Form of order sought

               —

               Declare that by introducing an additional charge on operators of electronic communications by Article 33 of Law No 2009-258 of 5 March 2009 on audiovisual communication, (1) the French Republic failed to fulfil its obligations under Article 12 of Directive 2002/20/EC of the European Parliament and of the Council of 7 March 2002 on the authorisation of electronic communications networks and services. (2)

               —

               order the French Republic to pay the costs.

      Pleas in law and main arguments

   In support of its action, the Commission questions the compatibility of Article 302 bis KH of the General Tax Code, introduced par Article 33 of Law No 2009-258 of 5 March 2009 on audiovisual communication and the new public television service, with the Authorisations Directive. By imposing a charge on undertakings operating an electronic communications network or providing an electronic communications service under the general authorisation, the defendant infringes in particular Article 12 of the directive. The Commission does not accept the argument of the national authorities that Article 12 relates solely to charges which the States may impose ‘in respect of’ the issue of a licence or a process linked to the procedure of authorising operators of electronic communications. According to the applicant, the objective of Article 12 is in fact to encompass any form of ‘administrative’ charge, in other words linked to all costs engendered by the management, monitoring and enforcement of the authorisation scheme, and not only those linked to the issue of authorisation.

      (1)  JORF No 0056, p. 4321.

      (2)  OJ 2002 L 108, p. 21.


title: Case T-503/13 P: Appeal brought on 19 September 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 12 July 2013 in Case F-32/12 Marcuccio v Commission

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/49

         Appeal brought on 19 September 2013 by Luigi Marcuccio against the order of the Civil Service Tribunal of 12 July 2013 in Case F-32/12 Marcuccio v Commission
   (Case T-503/13 P)
   2013/C 325/79
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Other party to the proceedings: European Commission

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               set aside in its entirety and without exception the order of the Civil Service Tribunal of the European Union of 12 July 2013 in Case F-32/12 Marcuccio v Commission;

               —

               refer the case back to the Civil Service Tribunal.

      Grounds of appeal and main arguments

   The appellant relies on two grounds in support of his appeal.

               1.

               First ground of appeal, alleging that Article 14 of the Rules of Procedure of the Civil Service Tribunal is unlawful by reason of tautology and unreasonableness and that there has, in any event, been mistaken, erroneous, misleading and unreasonable interpretation and application of that article, resulting in a serious and manifest infringement of the legally binding principle of natural justice referred to in, inter alia, Article 47 of the Charter of Fundamental Rights of the European Union.

               2.

               Second ground of appeal, alleging a total failure to provide reasons by virtue of, inter alia, a failure to make preliminary inquiries, self-evident, tautologous and arbitrary reasoning, distortion and misrepresentation of the facts, error of law and a manifestly misleading assessment of a procedural fact.


title: Case T-399/02: Action brought on 31 December 2002 by Eurocermex S.A. against the Office for Harmonisation in the Internal Market

text:
C 44/44                 EN                       Official Journal of the European Union                                       22.2.2003
consols and cartridges. The applicant is alleged to have                 Action brought on 31 December 2002 by Eurocermex
participated actively in a distribution agreement which imped-           S.A. against the Office for Harmonisation in the Internal
ed exports and to have provided information to assist with                                           Market
retracing the origins of parallel exports. A fine of
EUR 1,5 million was also imposed on the applicant.
                                                                                (Case T-399/02)
                                                                                (2003/C 44/81)
The applicant does not propose to dispute the material facts
upon which the decision rests. However, it submits that the                                 (Language of the case: French)
decision is vitiated, in law, in a number of respects, putting
forward the following pleas:
                                                                         An action against the Office for Harmonisation in the Internal
—     Incorrect application of Article 81 EC in so far as concerns       Market was brought before the Court of First Instance of the
      the first distribution agreement concluded between Linea           European Communities on 31 December 2002 by Eurocermex
      Gig S.r.l. Nintendo Corporation Ltd. and error in finding          S.A., established in Evere, Belgium, represented by André
      the applicant responsible for the anti-competitive conduct         Bertrand, lawyer.
      attributed to the parties involved.
                                                                         The applicant claims that the Court should:
—     Inconsistency within the decision and infringement of
      Article 253 EC. It is submitted in this regard that, despite
                                                                         —     annul the decision by which the examiner found that the
      the fact that relations and dealings between Nintendo and
                                                                               three-dimensional trade mark at issue was not such as to
      its retail and wholesale customers and relations and
                                                                               constitute a valid trade mark for ‘beers, mineral and
      dealings between John Menzies and its customers were
                                                                               aerated waters and fruit juices’, ‘restaurants, bars and
      identical to relations and dealings between Nintendo and
                                                                               snack bars’;
      its authorised distributors, the Commission decided to
      assess them in different fashions and alleged involvement
      in the supposed agreements and concerted practices only            —     send the case back to the examiner for prosecution;
      against Nintendo and its national distributors.
                                                                         —     order the Office to pay the costs.
—     Failure to assess the economic context in which the
      supposed agreements and/or concerted practices
      occurred. The applicant says that the Commission failed
      properly to define the relevant markets, failed to assess          Pleas in law and main arguments:
      Nintendo’s position in the relevant markets identified —
      instead merely evaluating its market shares in certain
                                                                         The trade mark in ques-       three-dimensional mark rep-
      Member States — and failed to assess Nintendo’s market
                                                                         tion:                         resenting a ‘long neck’ bottle on
      position in 1990, the year in which the distribution
                                                                                the neck of which a piece of
      agreements were concluded, or at all during the period
                                                                                lemon has been plugged, claiming
      1992 to 1997, instead arbitrarily choosing certain other
                                                                                the colours yellow and green.
      years.
                                                                         Goods or services con-        goods in Classes 16, 25, 32
                                                                         cerned:                       and 42.
—     Infringement of Article 15(2) of Regulation EEC No 17/
      62 and breach of the principles of equality and pro-               Decision        contested     25 and refusal as regards Class-
      portionality in the Commission’s assessment of the                 before grant of regis-        es 32 and 42.
      intention behind the applicant’s conduct and its fixing of         tration as regards Class-
      the amount of the fine, in that it set the fine higher than        es 16 and the Board of
      the maximum permissible sum, selected the wrong                    Appeal:
      basic amount and failed to take account of mitigating
      circumstances.
                                                                         Grounds pleaded:              Infringement of Article 7(1)(b)
                                                                                and (3) of Regulation (EC) No 40/
                                                                                94.


title: Case T-107/07 P: Appeal brought on 16 April 2007 by Francisco Rossi Ferreras against the judgment of the Civil Service Tribunal delivered on 1 February 2007 in Case F-42/05 Rossi Ferreras v Commission

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/20

         Appeal brought on 16 April 2007 by Francisco Rossi Ferreras against the judgment of the Civil Service Tribunal delivered on 1 February 2007 in Case F-42/05 Rossi Ferreras v Commission

   (Case T-107/07 P)
   (2007/C 129/35)
   Language of the case: French
   Parties

      Appellant: Francisco Rossi Ferreras (Luxemburg, Grand Duchy of Luxembourg) (represented by F. Frabetti, lawyer)

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

               —

               set aside the judgment of the Civil Service Tribunal of 1 February 2007 in Case F-42/05;

               —

               grant the forms of order sought by the appellant at first instance and, primarily, declare the application in Case F-42/05 to be admissible and well founded;

               —

               in the alternative, remit the case to the Civil Service Tribunal;

               —

               make an order as to costs, expenses and fees and order the Commission to pay them.

         Pleas in law and main arguments
   In his appeal, the appellant seeks the annulment of the judgment of the Civil Service Tribunal dismissing his application for the annulment of his career development report for the period from 1 January to 31 December 2003 and an order requiring the Commission to compensate him for the damage that he claims to have suffered.
   In support of his appeal, the appellant claims that the Civil Service Tribunal made several errors of law in its consideration of the two pleas in law put forward at first instance.


title: Case C-278/08: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 26 June 2008 — Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/30

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 26 June 2008 — Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH v Günter Guni and trekking.at Reisen GmbH
   (Case C-278/08)
   (2008/C 223/46)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: Die BergSpechte Outdoor Reisen und Alpinschule Edi Koblmüller GmbH

      Defendants: Günter Guni and trekking.at Reisen GmbH
   Questions referred

               1.

               Must Article 5(1) of the First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (‘Directive 89/104’) (1) be interpreted as meaning that a trade mark is used in a manner reserved for the proprietor of the trade mark if the trade mark or a sign similar to it (such as the word component of a word and figurative trade mark) is reserved as a keyword with a search engine operator and advertising for identical or similar goods or services therefore appears on the screen when the trade mark or the sign similar to it is entered as a search term?

               2.

               If the answer to Question 1 is yes:

                           (A)

                           Is the trade mark proprietor's exclusive right infringed by the utilisation of a search term identical with the trade mark for an advertisement for identical goods or services, regardless of whether the accessed advertisement appears in the list of hits or in a separate advertising block and whether it is marked as a ‘sponsored link’?

                           (B)

                           In respect of the utilisation of a sign identical with the trade mark for similar goods or services, or the utilisation of a sign similar to the trade mark for identical or similar goods or services, is the fact that the advertisement is marked as a ‘sponsored link’ and/or appears not in the list of hits but in a separate advertising block sufficient to exclude any likelihood of confusion?

      (1)   OJ 1989 L 40, p. 1.


title: Case C-44/17: Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 27 January 2017 — The Scotch Whisky Association v Michael Klotz

text:
               18.4.2017

               EN

               Official Journal of the European Union

               C 121/14

         Request for a preliminary ruling from the Landgericht Hamburg (Germany) lodged on 27 January 2017 — The Scotch Whisky Association v Michael Klotz
   (Case C-44/17)
   (2017/C 121/20)
   Language of the case: German

      Referring court

   Landgericht Hamburg

      Parties to the main proceedings

      Applicant: The Scotch Whisky Association

      Defendant: Michael Klotz

      Questions referred

               1.

               Does ‘indirect commercial use’ of a registered geographical indication of a spirit drink in accordance with Article 16(a) of Regulation (EC) No 110/2008 (1) require that the registered geographical indication be used in identical or phonetically and/or visually similar form, or is it sufficient that the disputed element evokes in the relevant public some kind of association with the registered geographical indication or the geographical area?
               If the latter is sufficient: When determining whether there is any ‘indirect commercial use’, does the context in which the disputed element is embedded then also play a role, or can that context not counteract indirect commercial use of the registered geographical indication, even if the disputed element is accompanied by an indication of the true origin of the product?

               2.

               Does an ‘evocation’ of a registered geographical indication in accordance with Article 16(b) of Regulation (EC) No 110/2008 require that there be a phonetic and/or visual similarity between the registered geographical indication and the disputed element, or is it sufficient that the disputed element evokes in the relevant public some kind of association with the registered geographical indication or the geographical area?
               If the latter is sufficient: When determining whether there is any ‘evocation’, does the context in which the disputed element is embedded also play a role, or can that context not counteract any unlawful evocation of the registered geographical indication, even if the disputed element is accompanied by an indication of the true origin of the product?

               3.

               When determining whether there is any ‘other false or misleading indication’ in accordance with Article 16(c) of Regulation (EC) No 110/2008, does the context in which the disputed element is embedded play a role, or can that context not counteract any misleading indication, even if the disputed element is accompanied by an indication of the true origin of the product?

      (1)  Regulation (EC) No 110/2008 of the European Parliament and of the Council of 15 January 2008 on the definition, description, presentation, labelling and the protection of geographical indications of spirit drinks and repealing Council Regulation (EEC) No 1576/89; OJ 2008 L 39, p. 16.


title: Case T-26/07: Action brought on 7 February 2007 — LIPOR v Commission

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/40

         Action brought on 7 February 2007 — LIPOR v Commission
   (Case T-26/07)
   (2007/C 82/89)
   Language of the case: Portuguese
   Parties

      Applicant: LIPOR — Serviço Intermunicipalizado de Gestão de Resíduos do Grande Porto (Gondomar, Portugal) (represented by: P. Pinheiro, M. Gorjão-Henriques and F. Quintela, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annulment in part of Article 1 of Commission Decision C(06)5008 of 17 October 2006, addressed to the Portuguese State, in so far as it considers that the total assistance granted by the Cohesion Fund under Commission decisions Nos C(93)3347/3 of 7 December 1993, C(94)3721 final/3 of 21 December 1994 and C(96)3923 final of 17 December 1996, reproduced in Decision C(98)2283/f, must be regarded as reduced by EUR 1 511 591 and of the decision to order reimbursement of that amount to the Member State;

               —

               annulment of Article 1 of the contested decision in so far as it orders a financial correction of 100 % in relation to the contracts concluded by the applicant with the IDAD (Instituto do Ambiente e Desenvolvimento, Environment and Development Institute) for breach of the principle of proportionality, and in so far as it orders the Member State to reimburse EUR 458 683;

               —

               an order that the Commission should pay the costs of the proceedings, including the applicant's costs;

               —

               as a subsidiary matter, annulment in part of Article 1 of the contested order for breach of the principle of proportionality, with regard to the contracts concluded by the applicant with Hidroprojecto;

               —

               again as a subsidiary matter, the applicant requests that the Court of First Instance, if it should consider that Lipor has not satisfied all the requirements of Directive 92/50/EC, should order the Commission, because of breach of the principle of proportionality, to fix at 100 % the financial correction relating to the financing of the contracts with Hidroprojecto.

         Pleas in law and main arguments
   In support of its action the applicant alleges errors of law, manifest errors of assessment, insufficient and inaccurate reasoning and breach of the principle of proportionality.
   So far as the contract concluded by the applicant with Hidroprojecto in 1989 is concerned, the applicant claims that the Commission erred in its assessment of the value of Block D of the contract.
   With regard to the contract concluded by the same bodies in 1997, the applicant claims that the Commission erred in its assessment, not understanding that those contracts were, in part, the realisation of the 1989 contract and, in part, extensions of that contract which proved necessary as the project developed. It also criticises the Commission for having considered that the contracts ought to have been awarded by open tendering procedure. In the applicant's view, even if it were to be held that those contracts were independent of the 1989 contract and that they crossed the threshold value fixed by Directive 92/50 for award by open tender, the exception provided for by Article 11 of that directive was applicable to them.
   In respect of the contracts of 28 March and 28 April 1995, also concluded by the same bodies, the applicant claims that the Commission made an error of assessment in regarding them as a single contract and as an extension of the 1989 contract and in asserting that the award of the procurement contract ought to have been preceded by a call for tenders. It argues that there are in fact two contracts concluded on different dates. One of them was concluded following a restricted invitation to tender and the other did not cross the value threshold that would have made it subject to the tendering procedure. In any case, both were concluded in accordance with Portuguese law at a time when Directive 92/50 had not yet been transposed into domestic law.
   Finally, with regard to the contracts concluded by the applicant with IDAD in 1999, the applicant, although admitting that the Commission could consider them together in order to determine their respective values and whether they were subject to the rules governing public procurement contracts, explains the reasons which led it to enter into separate contracts and claims that IDAD is a public body and, as such, a contracting authority for the purposes of Directive 92/50. Consequently, it takes the view that the Commission ought to have taken those reasons into account and not ordered a financial correction of 100 %. According to the applicant, that correction runs counter to the principle of proportionality.


title: Case F-110/15: Order of the Civil Service Tribunal of 3 May 2016 — Grzebielec v Commission

text:
               20.6.2016

               EN

               Official Journal of the European Union

               C 222/50

         Order of the Civil Service Tribunal of 3 May 2016 — Grzebielec v Commission
   (Case F-110/15) (1)

   (2016/C 222/81)
   Language of the case: French
   The President of the First Chamber has ordered that the case be removed from the register.

      (1)  OJ C 328, 5/10/2015, p. 36.


title: Judgment of the Court (Sixth Chamber) 18 April 2002 in Case C-9/00 (Reference for a preliminary ruling from the Korkein hallinto-oikeus): Palin Granit Oy v Vehmassalon kansanterveystyön kuntayhtymän hallitus (Harmonisation of laws — Directives 75/442/EEC and 91/156/EEC — Concept of "waste" — Production residue — Quarry — Storage — Use of waste — No risk to health or the environment — Possibility of recovery of waste)

text:
C 144/4                  EN                     Official Journal of the European Communities                                            15.6.2002
Replacement packaging of pharmaceutical products is objectively            2.     Orders the Commission of the European Communities to pay
necessary within the meaning of the Court’s case-law if, without such             the costs;
repackaging, effective access to the market concerned, or to a
substantial part of that market, must be considered to be hindered as
the result of strong resistance from a significant proportion of           3.     Orders the Kingdom of Denmark and the Republic of Finland
consumers to relabelled pharmaceutical products.                                  to bear their own costs.
(1) OJ C 34 of 5.2.2000.                                                   (1) OJ C 63 of 4.3.2000.
                  JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                           (Fifth Chamber)
                                                                                (Sixth Chamber)
                             7 May 2002
                                                                                18 April 2002
in Case C-478/99: Commission of the European Communi-
                  ties v Kingdom of Sweden (1)                             in Case C-9/00 (Reference for a preliminary ruling from
                                                                           the Korkein hallinto-oikeus): Palin Granit Oy v Vehmassa-
                                                                                lon kansanterveystyön kuntayhtymän hallitus (1)
(Failure by a Member State to fulfil its obligations —
Directive 93/13/EEC — Unfair terms in consumer contracts
— Obligation to reproduce in national legislation the list of              (Harmonisation of laws — Directives 75/442/EEC and 91/
terms which may be regarded as unfair contained in the                     156/EEC — Concept of ‘waste’ — Production residue —
                     annex to Directive 93/13)                             Quarry — Storage — Use of waste — No risk to health or
                                                                                the environment — Possibility of recovery of waste)
                           (2002/C 144/05)
                                                                                (2002/C 144/06)
                    (Language of the case: Swedish)
                                                                                (Language of the case: Finnish)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                         (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-478/99, Commission of the European Communities
(Agents: L. Parpala and P. Stancanelli) v Kingdom of Sweden                In Case C-9/00: Reference to the Court under Article 234 EC
(Agents: L. Nordling and A. Kruse), supported by Kingdom of                by the Korkein hallinto-oikeus (Finland) for a preliminary
Denmark (Agent: J. Molde), and by Republic of Finland                      ruling in the proceedings pending before that court instituted
(Agents: T. Pynnä and E. Bygglin): Application for a declaration           by Palin Granit Oy and Vehmassalon kansanterveystyön
that, by failing to adopt the laws, regulations and administrative         kuntayhtymän hallitus, on the interpretation of Article 1(a) of
provisions necessary to implement in its national legal system             Council Directive 75/442/EEC of 15 July 1975 on waste (OJ
the annex referred to in Article 3(3) of Council Directive 93/             1975 L 194, p. 39), as amended by Council Directive 91/156/
13/EEC of 5 April 1993 on unfair terms in consumer contracts               EEC of 18 March 1991 (OJ 1991 L 78, p. 32), the Court (Sixth
(OJ 1993 L 95, p. 29), the Kingdom of Sweden has failed to                 Chamber), composed of: F. Macken, President of the Chamber,
fulfil its obligations under that directive, the Court (Fifth              J.-P. Puissochet (Rapporteur), R. Schintgen, V. Skouris and
Chamber), composed of: P. Jann (Rapporteur), President of                  J. N. Cunha Rodrigues, Judges; F. G. Jacobs, Advocate General;
the Chamber, D. A. O. Edward and M. Wathelet, Judges;                      R. Grass, Registrar, has given a judgment on 18 April 2002, in
L. A. Geelhoed, Advocate General; H. A. Rühl, Principal                    which it has ruled:
Administrator, for the Registrar, has given a judgment on
7 May 2002, in which it:
                                                                           1.     The holder of leftover stone resulting from stone quarrying
                                                                                which is stored for an indefinite length of time to await possible
1.    Dismisses the application;                                                  use discards or intends to discard that leftover stone, which is
 ---pagebreak--- 15.6.2002                 EN                     Official Journal of the European Communities                                            C 144/5
      accordingly to be classified as waste within the meaning of           —    by including damage of less than EUR 500 in Article 3 of
      Council Directive 75/442/EEC of 15 July 1975 on waste.                     Law No 98-389 of 19 May 1998 on liability for defective
                                                                                products (JORF of 21 May 1998, p. 7744);
2.    The place of storage of leftover stone, its composition and the
      fact, even if proven, that the stone does not pose any real risk to   —    by providing in Article 8 thereof that the supplier of a
      human health or the environment are not relevant criteria for              defective product is to be liable in all cases and on the
      determining whether the stone is to be regarded as waste.                  same basis as the producer, and
                                                                            —    by providing in Article 13 thereof that the producer must
                                                                                prove that he has taken appropriate steps to avert the
(1) OJ C 102 of 8.4.2000.
                                                                                consequences of a defective product in order to be able
                                                                                to rely on the grounds of exemption from liability
                                                                                provided for in Article 7(d) and (e) of Council Directive
                                                                                85/374/EEC of 25 July 1985 on the approximation of
                                                                                the laws, regulations and administrative provisions of the
                                                                                Member States concerning liability for defective products
                                                                                (OJ 1985 L 210, p. 29), the French Republic has failed to
                                                                                fulfil its obligations under Articles 9, 3(3) and 7 of the
                                                                                aforementioned directive,
                                                                            the Court (Fifth Chamber), composed of: P. Jann (Rapporteur),
                                                                            President of the Chamber, S. von Bahr and C. W. A. Timmer-
                   JUDGMENT OF THE COURT                                    mans, Judges; L. A. Geelhoed, Advocate General; H. von
                                                                            Holstein, Deputy Registrar, has given a judgment on 25 April
                                                                            2002, in which it:
                            (Fifth Chamber)
                                                                            1.   Declares that
                             25 April 2002
                                                                                —      by including damage of less than EUR 500 in
                                                                                Article 1386-2 of the French Civil Code;
in Case C-52/00: Commission of the European Communi-
                      ties v French Republic (1)                                 —      by providing in the first paragraph of Article 1386-7
                                                                                thereof that the supplier of a defective product is to be
                                                                                liable in all cases and on the same basis as the producer,
                                                                                and
(Failure by a Member State to fulfil its obligations —
Directive 85/374/EEC — Product liability — Incorrect
                              transposition)                                     —      by providing in the second paragraph of Article 1386-
                                                                                12 thereof that the producer must prove that he has taken
                                                                                appropriate steps to avert the consequences of a defective
                            (2002/C 144/07)                                             product in order to be able to rely on the grounds of
                                                                                exemption from liability provided for in Article 7(d) and
                                                                                (e) of Council Directive 85/374/EEC of 25 July 1985
                                                                                on the approximation of the laws, regulations and
                      (Language of the case: French)                                    administrative provisions of the Member States concerning
                                                                                liability for defective products,
(Provisional translation; the definitive translation will be published           the French Republic has failed to fulfil its obligations under
                     in the European Court Reports)                              Articles 9(b), 3(3) and 7 of the aforementioned directive;
                                                                            2.   Orders the French Republic to pay the costs.
In Case C-52/00, Commission of the European Communities                     (1) OJ C 163 of 10.6.2000.
(Agents: M. Patakia and B. Mongin) v French Republic (Agents:
initially K. Rispal-Bellanger and R. Loosli-Surrans, subsequently
R. Loosli-Surrans and J.-F. Dobelle): Application for a declar-
ation that:


title: Case C-363/05: Judgment of the Court (Third Chamber) of 28 June 2007 (reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies v The Commissioners of HM Revenue and Customs (Sixth VAT Directive — Article 13B(d)(6) — Exemption — Special investment funds — Meaning — Definition by the Member States — Discretion — Limits — Closed-ended funds)

text:
               25.8.2007

               EN

               Official Journal of the European Union

               C 199/8

         Judgment of the Court (Third Chamber) of 28 June 2007 (reference for a preliminary ruling from the VAT and Duties Tribunal, London — United Kingdom) — JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies v The Commissioners of HM Revenue and Customs
   (Case C-363/05) (1)

   (Sixth VAT Directive - Article 13B(d)(6) - Exemption - Special investment funds - Meaning - Definition by the Member States - Discretion - Limits - Closed-ended funds)
   (2007/C 199/12)
   Language of the case: English
   Referring court
   VAT and Duties Tribunal, London
   Parties to the main proceedings

      Applicants: JP Morgan Fleming Claverhouse Investment Trust plc, The Association of Investment Trust Companies

      Defendant: The Commissioners of HM Revenue and Customs
   Re:
   Interpretation of Art. 13B(d)(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — Scope of the exemption of the management of pooled investment funds — Inclusion of closed-ended funds such as investment trust companies
   Operative part of the judgment

               1.

               Article 13B(d)(6) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment must be interpreted as meaning that the words ‘special investment funds’ in that provision are capable of including closed-ended investment funds, such as Investment Trust Companies.

               2.

               Article 13B(d)(6) of Sixth Directive 77/388 must be interpreted as meaning that it allows Member States a discretion in defining the funds located on their territory which are covered by the notion of ‘special investment funds’ for the purposes of the exemption provided for by that provision. However, in the exercise of that power, the Member States must respect the objective pursued by that provision, which is to facilitate investment in securities for investors through investment undertakings, while guaranteeing the principle of fiscal neutrality from the point of view of the levying of VAT on the management of special investment funds which are in competition with other special investment funds such as funds falling within the scope of Council Directive 85/611/EEC of 20 December 1985 on the coordination of laws, regulations and administrative provisions relating to undertakings for collective investment in transferable securities (UCITS), as amended by Directive 2005/1/EC of the European Parliament and of the Council of 9 March 2005.

               3.

               Article 13B(d)(6) of Sixth Directive 77/388 has direct effect, in that it can be relied on by a taxable person before a national court in order to challenge the application of national legislation alleged to be incompatible with that provision.

      (1)  OJ C 271, 29.10.2005.


title: Case T-320/00: Judgment of the Court of First Instance of  14 December 2005  — CD Cartondruck v Council and Commission (Non-contractual liability of the Community — Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) — Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation — Decision of the WTO Dispute Settlement Body — Legal effects — Community liability in the absence of unlawful conduct of its institutions — Causal link — Unusual and special damage)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/24

         Judgment of the Court of First Instance of 14 December 2005 — CD Cartondruck v Council and Commission
   (Case T-320/00) (1)

   (Non-contractual liability of the Community - Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) - Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation - Decision of the WTO Dispute Settlement Body - Legal effects - Community liability in the absence of unlawful conduct of its institutions - Causal link - Unusual and special damage)
   (2006/C 48/44)
   Language of the case: German
   Parties

      Applicant: CD Cartondruck AG (Obersulm, Germany) (represented initially by H.-J. Niemeyer and W. Berg, and subsequently by W. Berg, lawyers)

      Defendants: Council of the European Union (represented by J. Huber and S. Marquardt, acting as Agents) and Commission of the European Communities (represented initially by S. Jansen and B. Fries, and subsequently by P. Kuijper and S. Fries, acting as Agents)
   Application for
   compensation in respect of the damage allegedly caused by the levying by the United States of America of increased customs duty on imports of the applicant's folding boxes made of printed paperboard, as authorised by the Dispute Settlement Body of the World Trade Organisation (WTO), following a finding that the Community regime governing the import of bananas was incompatible with the agreements and understandings annexed to the Agreement establishing the WTO
   Operative part of the judgment
   The Court:

               1)

               Dismisses the action;

               2)

               Orders the applicant to bear, in addition to its own costs, the costs incurred by the Council and the Commission.

      (1)  OJ C 355 of 9.12.2000.


title: Action brought on 1 February 1996 by Cityflyer Express Limited against the Commission of the European Communities (Case T-16/96)

text:
 13 . 4 . 96           EN                 Official Journal of the European Communities                               No C 108/11
on 27 February 1996 , the operative part of which is as              invitation to tender. The reasons given for this are
 follows :                                                           inadequate and entirely baseless. The applicants observe in
                                                                     this respect that the only change in practice to the new
 1 . the application for interim measures is dismissed;              procedure consisted in the exclusion of Kolprojekt from the
                                                                     short list. At the same time, however, the successful
                                                                     undertaking was recommended to allocate to Kolprojekt the
2,    costs are reserved.                                            role of subcontractor for up to 25 % of the amount of the
                                                                     offer .
                                                                     It follows that the contested acts — the decision to annul the
                                                                     procedure published on 13 June 1995 and the decision to
                                                                     put in motion a new procedure — do not achieve any of the
Action brought on 26 January 1996 by TEAM Sri and                    objective aims of general interest. On the contrary, they lead
Centralne Biuro Projektowo-Badawcze Budownictwa                      to an unjustified delay in awarding the contract as well as to
Kolejowego ( CBBBK KOLPROJECT) against the                           serious harm for the applicant undertakings .
          Commission of the European Communities
                        ( Case T-13/96 )                            The acts in question must therefore be annulled on the
                          ( 96/C 108/24                             grounds of misuse of powers and manifest breach of the
                                                                    principle of sound administration by the Commission .
                 (Language of the case: Italian)
An action against the Commission of the European
Communities was brought before the Court of First
Instance of the European Communities on 26 January 1996
by TEAM Sri and Centralne Biuro Projektowo-Badawcze
Budownictwa Kolejowego ( CBBBK Kolprojekt), whose                   Action brought on 1 February 1996 by Cityflyer Express
registered office is at Warsaw (Poland ), represented by                  Limited against the Commission of the European
                                                                                Communities
Antonio Tizzano and Gian Michele Roberti, of the Naples
Bar, with an address for service at 36 Place du Grand Sablon,                                Case T- 1 6/96 )
Brussels .                                                                                ( 96/C 108/25 )
The applicant claims that the Court should :
                                                                                (Language of the case: English)
— uphold the application for annulment of the decision of
     the Commission, contained in a letter of 16 November           An action against the Commission of the European
     1995 from the Head of Unit of the Directorate-General,         Communities was brought before the Court of First
     External Relations, Directorate B, annulling the award         Instance of the European Communities on 1 February 1996
     procedure concerning the 'Feasibility study for the            by Cityflyer Express Limited, represented by Charles Price,
     modernization of railway junction in Warsaw on the             with an address for service in Luxembourg at the Chambers
     E-20 TEN line ', and the subsequent tender notice of           of Lucy Dupong, 14a, rue des Bains .
     4 December 1995 , which also concerned the 'Feasibility
     study for the modernization of railway junction in
     Warsaw on the E-20 TEN line ',                                 The applicant claims that the Court should :
— uphold the application for compensation for the harm              — annul the Commission decision of 26 July 1995
     suffered by the applicants, and                                     concerning aid granted by the Flemish Region to the
                                                                         Belgian airline Vlaamse Luchttransportmaatschappij
— order the Commission to pay the costs .                                NV,
Pleas in law and main arguments adduced in support:                 — order the Commission to pay the costs .
The applicants, a design company, active in Italy and
abroad, which operates in the construction, management              Pleas in law and main arguments adduced in support:
and engineering maintenance sector, is a Polish share capital
company whose object is the provision of design services in         The applicant, an airline company registered in England,
the railway sector, complain that the defendant, instead of         which operates scheduled flights out of London Gatwick
proceeding to award the contract, notified in the context of        to Antwerp, Dublin, Diisseldorf, Guernsey, Jersey, Leeds/
the Phare programme, concerning the 'Feasibility Study for          Bradford , Newcastle and Rotterdam, challenges the
the Modernization of railway junction in Warsaw on the              Commission Decision of 26 July 1995 , concerning aid
E-20 TEN line', decided to annul the procedure and open a           granted by the Flemish Region to the Belgian airline
new procedure . The companies invited to tender in the first        Vlaamse Luchttransportmaatschappij NV (VLM), in the
procedure were included in a short list attached to the             form of an interest-free loan of Bfrs 20 million . In its
 ---pagebreak--- No C 108/12             EN I                 Official Journal of the European Communities                                      13 . 4 . 96
decision, the Commission holds that the aid is limited to the           Instance of the European Communities on 7 February 1996
interest-free element . The applicant, on the other hand,               by Stephen Pascall , residing in Brussels, represented by
considers that the aid is represented not only by the grant of          Jean-Noël Louis, Thierry Demaseure and Ariane Tornel, of
the loan on an interest-free basis but also by the full amount          the Brussels Bar, with an address for service in Luxembourg
of the loan .                                                           at the Chambers of Fiduciaire Myson SARL, 1 Rue
                                                                        Glesener .
Pleas in support of the applicant's action for annulment:
1 . The Commission Decision , in that it holds that only the            The applicant claims that the Court should :
     interest-free element and not the loan itself amounts to
     State aid, constitutes an incorrect application of                 — annul the Commission's decision of 26 June 1995
     Article 92 of the EC Treaty. It would seem that when                    withdrawing its decision of 18 October 1994 awarding
     applying the market economy investor principle, the                     the applicant an additional step ;
     Commission is of the opinion that the application of the
     principle leads to different results according to whether
     the State aid takes the form of a capital injection or a           — order the defendant to pay the costs .
     loan . This constitutes a misinterpretation of Article 92
     ( 1 ) of the Treaty .
                                                                        Pleas in law and main arguments adduced in support:
2 . In failing to characterize the full amount of the loan as
     aid, the Commission has committed manifest errors of               The applicant states that he entered the employment of the
     assessment :                                                       Commission as a temporary agent in the scientific service on
                                                                        1 December 1986 . Following his success in an internal
     — the Belgian authorities have confirmed that the                  competition, he was appointed an official at Grade A 4,
           'loan ' was granted on an interest-free basis . This         step 4, on 6 May 1994 , with effect from 1 April 1994, and
           element in itself should have led the Commission to          was assigned to the post he had held as a temporary agent.
           conclude that the so-called loan was in fact akin to a       By decision of 18 October 1994, he was awarded an
           subsidy or at the very least was certainly not a             additional step pursuant to Article 97 ( 1 ) of the Staff
           normal loan transaction,                                     Regulations of officials of the European Communities . On
                                                                        26 June 1995 , the appointing authority decided to withdraw
     — the unusual or exceptional nature of the loan is                 that decision on the ground that, since 1 April 1994, the
           further confirmed by the fact that, on the one hand,         applicant no longer belonged to the scientific or technical
           the loan was granted on a totally unsecured basis            services of the Community .
           and, on the other hand , the aid was granted on a
           purely ad hoc basis and not pursuant to the
           legislation applicable to aids in the Flemish                In support of his action, the applicant pleads, first, breach of
           Region,
                                                                        the requirement to state reasons, claiming that the contested
                                                                        decision does not provide sufficient information to allow
                                                                        him to ascertain whether it was well founded and whether it
     — the Commission manifestly misjudged VLM's
           financial situation which, contrary to what the              was appropriate to bring an action before the Court of First
                                                                        Instance .
           Commission states in its decision, underwent further
           substantial deterioration in the course of 1994 .
                                                                        He also alleges breach of the principle of legal certainty and
3 . By failing to take account of the applicant's observations          claims that it is unlawful to withdraw a decision which
     and by failing to give the applicant the opportunity to            conferred individual rights . In that regard, he states that
     comment on the replies furnished by the Belgian                    even if the decision of 1 8 October 1 994 had been improperly
     authorities, the Commission has infringed Article 190 of           adopted , the appointing authority could only withdraw it
     the EC Treaty .                                                    within a reasonable period; in this instance , it was not until
                                                                        more than eight months after the decision was adopted that
                                                                        the appointing authority withdrew it, which is an
                                                                         unacceptable lapse of time .
                                                                         Finally, the applicant considers that the contested decision
  Action brought on 7 February 1996 by Stephen Pascall                   infringed the principle of the protection of legitimate
   against the Commission of the European Communities                    expectations . He claims that when the appointing authority
                           ( Case T-20/96 )                              awarded him the additional step, it must have known that he
                                                                         had already been appointed as an official; it is indisputable,
                             ( 96/C 108/26 )                             therefore , that in adopting that decision the appointing
                                                                         authority raised reasonable expectations on the applicant's
                   (Language of the case: Frencb)                        part .
 An action against the Commission of the European
 Communities was brought before the Court of First