title: Case C-221/06: Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft (Reference for a preliminary ruling — Levy on the long-term depositing of waste at a waste disposal site — Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited and the state of the waste disposal site — Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria — No exemption for the deposit of waste from contaminated sites located in other Member States — Article 90 EC — Internal taxation — Discrimination)

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/16

         Judgment of the Court (First Chamber) of 8 November 2007 (reference for a preliminary ruling from the Verwaltungsgerichtshof (Austria)) — Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH v Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft
   (Case C-221/06) (1)

   (Reference for a preliminary ruling - Levy on the long-term depositing of waste at a waste disposal site - Levy payable by the operator of the waste disposal site and calculated according to the weight of the waste being deposited and the state of the waste disposal site - Exemption from the levy in respect of the deposit of waste from contaminated sites in Austria - No exemption for the deposit of waste from contaminated sites located in other Member States - Article 90 EC - Internal taxation - Discrimination)
   (2007/C 315/25)
   Language of the case: German
   Referring court
   Verwaltungsgerichtshof
   Parties to the main proceedings

      Applicants: Stadtgemeinde Frohnleiten, Gemeindebetriebe Frohnleiten GmbH

      Defendant: Bundesminister für Land- und Forstwirtschaft, Umwelt und Wasserwirtschaft,

      Intervener: Republik Österreich
   Re:
   Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Articles 10, 12, 23, 25, 49 and 90 of the EC Treaty — Exemption from tax on the deposit of waste for waste deriving from the rehabilitation of disused hazardous sites (Altlasten) if those sites are entered in public registers — Exclusion of waste deriving from disused hazardous sites located in another Member State
   Operative part of the judgment
   The first paragraph of Article 90 EC precludes a national tax provision such as Paragraph 3(2).1 of the Law on the rehabilitation of disused hazardous sites (Altlastensanierungsgesetz) of 7 June 1989 which exempts from the levy imposed on the long-term depositing of waste at waste disposal sites in the Member State concerned deposits of waste derived from the rehabilitation or safeguarding of disused hazardous sites or suspected contaminated sites located in that Member State alone, but excludes exemption of deposits of waste derived from the rehabilitation or safeguarding of sites located in other Member States.

      (1)  OJ C 178, 29.7.2006.


title: Case T-113/13 P: Order of the General Court of 20 September 2013 –Van Neyghem v Council (Appeal — Civil service — Officials — Promotion — 2007 promotion year — Decision to not promote the appellant to Grade AST 7 — Dismissal of action at first instance — Obligation to state reasons — Article 266 TFEU — Appeal in part clearly inadmissible and in part clearly unfounded)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/25

         Order of the General Court of 20 September 2013 –Van Neyghem v Council
   (Case T-113/13 P) (1)

   (Appeal - Civil service - Officials - Promotion - 2007 promotion year - Decision to not promote the appellant to Grade AST 7 - Dismissal of action at first instance - Obligation to state reasons - Article 266 TFEU - Appeal in part clearly inadmissible and in part clearly unfounded)
   2013/C 336/54
   Language of the case: French

      Parties

      Appellant: Kris Van Neyghem (Tienen, Belgium) (represented by: M. Velardo, lawyer)

      Other party to the proceedings: Council of the European Union (represented by: M. Bauer and A. Bisch, acting as Agents)

      Re:

   Appeal brought against the decision of the European Union Civil Service Tribunal (Third Chamber) of 12 December 2012 in Case F-77/11 Van Neyghem v Council, (not yet published in the ECR), and seeking the setting aside of that judgment.

      Operative part of the order

               1.

               The appeal is rejected.

               2.

               Mr Kris Van Neyghem is to bear his own costs and those incurred by the Council of the European Union in these proceedings.

      (1)  OJ C 147, 25.5.2013.


title: Case T-86/02: Action brought on 26 March 2002 by Territorio Histórico de Alava — Diputación Foral de Alava against Commission of the European Communities

text:
C 144/52                EN                     Official Journal of the European Communities                                        15.6.2002
Decision of the oppo-           Refusal of registration in respect        1993 of 5 July 1993 on urgent fiscal provisions to promote
sition division:                of certain products                       investment and economic activity (Boletı́n Oficial del Territorio
                                                                          Histórico de Alava No 79 of 16 July 1993), which provides
Decision of the Board of        Partial annulment of the decision         for exemption from company tax for undertakings created
Appeal:                         of the Opposition Division and            between the entry into force of that Law and 31 December
                                refusal of registration in respect        1994, provided that they invest more than PTA 80 million
                                of an additional product (‘cheeses’)      (EUR 480 810), create more than 10 new jobs and have
                                                                          disbursed capital amounting to more than PTA 20 million
Pleas in law:                   —     Infringement       of    Arti-      (EUR 120 202).
                                      cle 8(1)(b) of Regulation
                                      No 40/94
                                —     Incorrect interpretation of
                                      the concept of risk of con-
                                      fusion                              The applicants put forward essentially 5 pleas in law:
                                                                          a.    infringement of the first paragraph of Article 87 EC
                                                                                inasmuch as the Commission committed a manifest error
                                                                                of assessment by considering that the fiscal measure at
                                                                                issue is prima facie State aid within the meaning of the
Action brought on 26 March 2002 by Territorio Histórico                        aforementioned article. In the applicant’s view, the pre-
de Alava — Diputación Foral de Alava against Com-                              sent case does not involve selective advantage, which is
            mission of the European Communities                                 typical of State aid within the meaning of that provision,
                                                                                since it is a measure which is established on the basis of
                           (Case T-86/02)                                       objective criteria and affects all economic operators (both
                                                                                natural and legal persons) in the same way.
                         (2002/C 144/104)
                    (Language of the case: Spanish)                       b.    in the alternative, with regard to the first plea in law,
                                                                                misinterpretation by the Commission of the concept of
                                                                                ‘State aid’. The applicants state that, should the Court take
                                                                                the view that the measure at issue is indeed State aid, it
                                                                                would in any event be as an existing aid scheme either
An action against the Commission of the European Communi-                       within the meaning of Article 1(b)(v) of Regulation (EC)
ties was brought before the Court of First Instance of the                      No 659/1999 since, when it was implemented, the
European Communities on 26 March 2002 by the Territorio                         measure was not ‘aid’, or within the meaning of 1(b)(ii) as
Histórico de Alava — Diputación Foral de Alava, Alava (Spain),                aid which, at the time, was impliedly authorised by the
represented by Ignacio Saenz-Cortabarria and Marta Morales                      Commission.
Isasi.
The applicants claim that the Court should:
                                                                          c.    in the further alternative to the first plea in law, failure to
                                                                                observe the procedures laid down by law. According to
—      annul the Commission Decision of 20 December 2001                        Article 88(1) EC and Regulation (EC) No 659/1999, the
       on the system of aid implemented by Spain in 1993 in                     proper procedure for the review of systems of existing
       favour of a number of newly-created undertakings in                      aid is as provided for in Articles 17 to 19 of that
       Alava;                                                                   regulation, not that followed by the Commission in the
                                                                                present case, which is the procedure to be applied to
—      in the alternative, annul Article 3 of that decision;                    unlawful aid.
—      order the Commission to pay the costs.
                                                                          d.    in the alternative with regard to the first three pleas in
                                                                                law, abuse by the Commission of its power to authorise
Pleas in law and main arguments                                                 aid under Article 87(3)(c) EC by considering the disputed
                                                                                fiscal measure to be operating aid and to declare, as a
                                                                                consequence, that it is aid incompatible with the common
The applicants contest Commission Decision C(2001) 4475                         market. The Commission improperly equates what is
final of 20 December 2001 declaring State aid incompatible                      nothing more than a means of assessing the element of
with the common market the exemption from company tax                           aid with the genuine concept of aid to investment or for
arising from Article 14 of Norma Foral (Regional Law) No 18/                    job creation. The fact that the amount of the aid as a
 ---pagebreak--- 15.6.2002              EN                     Official Journal of the European Communities                                        C 144/53
      percentage of the investment or the cost of salaries was           —     in the alternative, annul Article 3 of that decision;
      not set beforehand in no way precludes its being done
      subsequently with the aim of checking that it does not
      exceed the level of aid for a region authorised as part of         —     order the Commission to pay the costs.
      overall regional aid.
e.    in the alternative to all the above pleas in law, the order        Pleas in law and main arguments
      requiring recovery of the aid (first sentence of Article 3
      of the contested decision) infringes the last sentence of
      Article 14(1) of Regulation (EC) No 659/1999 given the
      exceptional circumstances of the present case (duration            The applicants contest Commission Decision C(2001) 4478
      of the preliminary examination, which lasted more than             final of 20 December 2001 declaring State aid incompatible
      79 months). The fact that the Commission examined the              with the common market the exemption from company tax
      fiscal scheme at issue in 1994 and did not find against it         arising from Article 14 of Norma Foral (Regional Law) No 5/
      gave rise to a well-founded expectation that it was                1993 of 24 June 1993 on urgent fiscal provisions to promote
      regarded as compliant with Community law, so that                  investment and economic activity (Boletı́n Oficial de Bizkaia
      Article 3 of the contested decision is contrary to the             No 154 of 7 July 1993), which provides for exemption from
      principles of legal certainty and legitimate expectations.         company tax for undertakings created between the entry into
                                                                         force of that Law and 31 December 1994, provided that they
                                                                         invest more than PTA 80 million (EUR 480 810), create more
                                                                         than 10 new jobs and have disbursed capital amounting to
                                                                         more than PTA 20 million (EUR 120 202).
                                                                         The pleas in law and main arguments put forward by the
                                                                         applicants are identical to those put forward in Case T-86/02.
Action brought on 26 March 2002 by Territorio Histórico
de Bizkaia — Diputación Foral de Bizkaia aygainst Com-
            mission of the European Communities
                          (Case T-87/02)                                 Action brought on 26 March 2002 by Territorio Histórico
                                                                         de Gipuzkoa — Diputación Foral de Gipuzkoa against
                                                                                Commission of the European Communities
                        (2002/C 144/105)
                                                                                (Case T-88/02)
                  (Language of the case: Spanish)                                                (2002/C 144/106)
                                                                                (Language of the case: Spanish)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               An action against the Commission of the European Communi-
European Communities on 26 March 2002 by the Territorio                  ties was brought before the Court of First Instance of the
Histórico de Bizkaia — Diputación Foral de Bizkaia, Bizkaia            European Communities on 26 March 2002 by the Territorio
(Spain), represented by Ignacio Saenz-Cortabarria and Marta              Histórico de Gipuzkoa — Diputación Foral de Gipuzkoa,
Morales Isasi.                                                           Gipuzkoa (Spain), represented by Ignacio Saenz-Cortabarria
                                                                         and Marta Morales Isasi.
The applicants claim that the Court should:                              The applicants claim that the Court should:
—     annul the Commission Decision of 20 December 2001                  —     annul the Commission Decision of 20 December 2001
      on the system of aid implemented by Spain in 1993 in                     on the system of aid implemented by Spain in 1993 in
      favour of a number of newly-created undertakings in                      favour of a number of newly-created undertakings in
      Bizkaia;                                                                 Gipuzkoa;


title: Case C-220/11: Reference for a preliminary ruling from the Nejvyšší Správní Soud (Czech Republic) lodged on 11 May 2011 — Star Coaches s.r.o. v Finanční ředitelství pro hlavní město Prahu

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/8

         Reference for a preliminary ruling from the Nejvyšší Správní Soud (Czech Republic) lodged on 11 May 2011 — Star Coaches s.r.o. v Finanční ředitelství pro hlavní město Prahu
   (Case C-220/11)
   2011/C 219/10
   Language of the case: Czech

      Referring court

   Nejvyšší Správní Soud

      Parties to the main proceedings

      Applicant: Star Coaches, s.r.o.

      Defendant: Finanční ředitelství pro hlavní město Prahu

      Questions referred

               1.

               Does Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) refer only to supplies made by travel agents to end users of a travel service (travellers) or also to supplies made to other persons (customers)?

               2.

               Should a transport company which merely provides transport of persons by providing bus transport to travel agencies (not directly to travellers) and which does not provide any other services (accommodation, information, consultancy etc.) be regarded as a travel agent for the purposes of Article 306 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax?

      (1)  OJ 2006 L 347, p. 1.


title: Case F-101/07: Action brought on 3 October 2007 — Cova v Commission

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/73

         Action brought on 3 October 2007 — Cova v Commission
   (Case F-101/07)
   (2007/C 269/134)
   Language of the case: English
   Parties

      Applicant: Philippe Cova (Brussels, Belgium) (represented by: S. Pappas, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               Annul the decision of the Appointing Authority dated 29 June 2007 to the extent that it does not award the management premium provided for in Article 7(2) of the staff regulation for a period longer than one year,

               —

               Order the European Commission to pay the costs of the proceedings.

         Pleas in law and main arguments
   The Applicant invokes the following pleas in law:
   1.   Infringement of Article 7(2) of the SR by the Appointing Authority

               —

               the objective of Article 7(2) of the staff regulation is to ensure smooth continuity of the service in cases of vacancy of a post; according to the right meaning of this provision, the temporary occupation of a post should be as short as possible and for that reason the Administration is urged by the law to proceed without delay to the termination of the temporary posting by the nomination of a Head of unit to the post.

               —

                  ‘The duration of a temporary posting shall not exceed one year’ refers exclusively to the duration of the temporary posting and does not affect the remuneration corresponding to it if the temporary posting is prolonged beyond the duration of one year.

               —

               The deadline of one year is not of absolute character all the more since it is not a deadline addressed to the civil servant but to the Administration without any further qualification that it is compulsory or binding or imperative; hence, it should be understood as a strong reminder to the Administration to fill in the vacancy as soon as possible.

         2.   Infringement of the duty to have regard for the welfare of the officials and the principle of good administration

               —

               The aforementioned duty implies that when an authority takes a decision concerning the position of an official, it should take into consideration all the factors which may affect its decision and that when doing so it should take into account not only the interests of the service but also those of the official concerned.

               —

               In this connection the principle of good administration is frequently linked to the duty to have regard for the welfare of officials.

               —

               In the present case the Commission failed to comply with its duties as it was aware that the previous Head of Unit should be assigned to another post and tolerated Mr Cova's appointment ad interim for a period longer than one year. The interpretation of the Commission leads to the paradoxical situation that while the responsibilities assumed for the allotted period were higher, the plaintiff may only be granted a management premium which is limited to one year.


title: Case C-188/14: Request for a preliminary ruling from the Juzgado de Primera Instancia No 58 de Madrid (Spain) lodged on 15 April 2014  — Juan Pedro Ludeña Hormigos v Banco Santander, S.A.

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/3

         Request for a preliminary ruling from the Juzgado de Primera Instancia No 58 de Madrid (Spain) lodged on 15 April 2014 — Juan Pedro Ludeña Hormigos v Banco Santander, S.A.
   (Case C-188/14)
   2014/C 223/04
   Language of the case: Spanish

      Referring court

   Juzgado de Primera Instancia No 58 de Madrid

      Parties to the main proceedings

      Applicant: Juan Pedro Ludeña Hormigos

      Defendant: Banco Santander, S.A.

      Questions referred

               1.

               Is Article 22.1 of Law 16/09 of 13 November on payment services compatible with Community law, insofar as it allows a bank to apply and/or increase the cost of services by changing the conditions initially agreed upon?

               2.

               Is it sufficient protection for that user that he may terminate the contract without charge?

               3.

               Are contractual terms agreed between the parties that provide the same options as those provided for in the provision referred to in the first question lawful?

               4.

               Lastly, if the reply to the foregoing questions is affirmative, is the notice period of two months compatible with Community law?


title: Case C-340/11: Reference for a preliminary ruling from the Tribunal Administratif de Montreuil (France) lodged on 4 July 2011 — Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka v Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’État

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/34

         Reference for a preliminary ruling from the Tribunal Administratif de Montreuil (France) lodged on 4 July 2011 — Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka v Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’État
   (Case C-340/11)
   2011/C 269/66
   Language of the case: French

      Referring court

   Tribunal Administratif de Montreuil

      Parties to the main proceedings

      Applicant: Kapitalanlagegesellschaft mbH, on behalf of Alltri Inka

      Defendant: Ministre du budget, des comptes publiques, de la fonction publique et de la réforme de l’État

      Questions referred

               1.

               Must the situation of the shareholders be taken into account together with that of undertakings for collective investments in transferable securities (UCITS)?

               2.

               If so, what are the conditions under which the withholding tax at issue may be regarded as consistent with the principle of free movement of capital?


title: Case T-526/11: Action brought on 3 October 2011 — Igcar Chemicals v ECHA

text:
               26.11.2011

               EN

               Official Journal of the European Union

               C 347/41

         Action brought on 3 October 2011 — Igcar Chemicals v ECHA
   (Case T-526/11)
   2011/C 347/74
   Language of the case: Spanish

      Parties

      Applicant: Igcar Chemicals, SL (Rubí, Spain) (represented by: L. Fernández Vaissieres, lawyer)

      Defendant: European Chemicals Agency (ECHA)

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that the action is well-founded and admissible;

               —

               annul in part the contested decision, insofar as it refers to the issuing of an invoice for administrative charges, and annul that invoice;

               —

               order the ECHA to pay the costs.

      Pleas in law and main arguments

   This action has been brought against the Decision of the European Chemicals Agency (‘ECHA’) number SME (2011) 0572, dated 3 August 2011, and for the related cancellation of the invoice for administrative charges (invoice number 10028302 of 5 August 2011).
   It is noted in that respect that the applicant pre-registered various substances that it intended to register. Prior to the latter registration, the applicant was incorrectly recorded as a small enterprise.
   In June 2011, on the basis of Article 13(3) of Commission Regulation (EC) No 340/2008 of 16 April 2008 on the fees and charges payable to the European Chemicals Agency pursuant to Regulation (EC) No 1907/2006 of the European Parliament and of the Council on the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) (the ‘Charges Regulation’), the Agency requested the applicant to show that it had the right to the reduction in registration charges that had been applied. The applicant confirmed that its size corresponded to that of a medium-sized enterprise, a matter which it had voluntarily corrected in the REACH-IT system prior to receiving the abovementioned request from the ECHA.
   In support of the action, the applicant relies on five pleas in law.

               1.

               First plea in law, concerning the European Commission’s lack of competence to delegate the imposition of an administrative charge to the ECHA and the ECHA’s lack of competence to adopt Decision MB/29/2010 of its Management Board of 12 November 2010 (‘on the classification of services for which charges are levied’).

                           —

                           The applicant alleges in that regard that, by providing in Article 13(4) of the Charges Regulation that the ECHA is to levy an administrative charge distinct from the registration charge, which is the only charge that is permitted by the provisions establishing the ECHA, the Commission goes beyond that which is permitted by those provisions, and in that regard Article 114 TFEU is not a sufficient basis for the competence of the Commission or the ECHA.

               2.

               Second plea in law, concerning the unlawfulness of the delegation of powers contained in Article 13(4) of the Charges Regulation.

                           —

                           The applicant alleges in that regard that the provision referred to leaves it to the discretion of the ECHA to establish an administrative charge without defining its objectives, content, scope or duration, which renders Article 2 of Decision MB/29/2010, and in particular Table 1 in the Annex thereto, unlawful.

               3.

               Third plea in law, concerning the punitive nature of Decision MB/29/2010.

                           —

                           The applicant alleges in that regard that, although pursuant to Article 74(1) of the ECHA basic regulation the Agency is authorised to charge for the services it supplies, in accordance with Article 74(3) of that text the charges are to be fixed in such a way as to ensure that the revenue derived from them, when combined with other sources of the Agency’s revenue, is sufficient to cover the cost of the services delivered. However, an administrative charge for the ECHA’s prior checks in the fixed amount of EUR 14 500 cannot be justified and is disproportionately high in relation to the services delivered. Rather, those administrative charges are in the nature of a penalty.

               4.

               Fourth plea in law, concerning infringement of the principle of legal certainty.

                           —

                           It is alleged in that respect that the REACH-IT system did not provide sufficient information to enterprises to enable them to know the penalties which may be incurred in respect of the obligation they are under to verify their size. Moreover, the Agency did not take into account either the applicant’s lack of intention or the voluntary correction of the error made.

               5.

               Fifth plea in law, concerning infringement of the principle of proportionality in the establishment of the administrative charges concerned.


title: Case C-642/13 P: Appeal brought on 4 December 2013 by Villeroy & Boch — Belgium against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 Villeroy & Boch v Commission

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/23

         Appeal brought on 4 December 2013 by Villeroy & Boch — Belgium against the judgment of the General Court (Fourth Chamber) delivered on 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 Villeroy & Boch v Commission
   (Case C-642/13 P)
   2014/C 45/40
   Language of the case: Dutch

      Parties

      Appellant: Villeroy & Boch — Belgium (represented by: O.W. Brouwer and N. Lorjé, advocaten)

      Other party to the proceedings: European Commission

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Fourth Chamber) of 16 September 2013 in Joined Cases T-373/10, T-374/10, T-382/10 and T-402/10 Villeroy & Boch v Commission in so far as it dismisses the appellant’s claims;

               —

               in the alternative, annul in part the determination in paragraph 1 of the operative part of the judgment of 16 September 2013 in so far as it concerns the appellant;

               —

               in the further alternative, reduce the fine imposed on the appellant in Article 2 of the contested decision of 23 June 2010 to such an amount as the Court considers fair and appropriate;

               —

               in the further alternative, set aside the judgment of the General Court of 16 September 2013 and refer the case back to the General Court;

               —

               in each case, order the Commission to pay the costs.

      Grounds of appeal and main arguments

   The appellant claims that the judgment under appeal should be set aside on the following grounds:

               1.

               In its first ground, the appellant argues that the General Court is guilty of distorting evidence by wrongly failing to take account of information, submitted by the appellant and discussed during the oral procedure before the General Court, that was relevant to its verdict.

               2.

               In its
                     second ground
                  , the appellant objects to the merging of factually and legally independent courses of conduct into one allegedly single, complex and continuous infringement. The appellant also contends that the application by the General Court and the Commission of the principle of ‘one single, complex and continuous infringement’ is at variance with the right to due process and the proper administration of justice and contrary to the legal requirement of review by the General Court.

               3.

               By its
                     third ground
                  , the appellant contends that the General Court failed to carry out a proper legal assessment, thereby allowing the guarantee of effective legal protection under European Union law to be infringed.

               4.

               By its
                     fourth ground
                  , the appellant argues that the fine imposed cannot, in any event, be supported by the outcome of the General Court’s examination and that it is disproportionate.


title: Judgment of the Court of First Instance of 12 May 2004 in Case T-191/01 André Hecq v Commission of the European Communities (Officials — Social security — Article 72(1) of the Staff Regulations — Reimbursement of medical expenses — Serious illness — Refusal to reimburse certain medical services at 100 %)

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/15

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 12 May 2004
   in Case T-191/01 André Hecq v Commission of the European Communities (1)

   (Officials - Social security - Article 72(1) of the Staff Regulations - Reimbursement of medical expenses - Serious illness - Refusal to reimburse certain medical services at 100 %)
   (2004/C 190/25)
   Language of the case: French
   In Case T-191/01 André Hecq, an official of the Commission of the European Communities, residing in Mondercange (Luxembourg), represented by C. Mourato, lawyer, with an address for service in Luxembourg, against Commission of the European Communities (Agent: J. Currall) – application for annulment of two decisions adopted by the office responsible for the settlement of claims on 13 October 2000 and 6 November 2000 respectively, refusing to reimburse at 100 % certain medical services provided for the applicant's wife – the Court of First Instance, composed of J. Azizi, President, and M. Jaeger and F. Dehousse, Judges; I. Natsinas, Administrator, for the Registrar, has given a judgment on 12 May 2004 the operative part of which is as follows:

               1.

               The decisions adopted by the office responsible for the settlement of claims are annulled in so far as they refuse to reimburse at 100 % certain medical services provided for the applicant's wife;

               2.

               The Commission is ordered to pay the costs.

      (1)  OJ C 317 of 10.11.2001.


title: Order of the Court of 2 July 1999 in Case C-158/99 (reference for a preliminary ruling from the Tribunal Tributário de Primeira Instância de Faro): Corticeira Amorim-Algarve Lda v Fazenda Pública (Inadmissibility)

text:
4.12.1999                EN                     Official Journal of the European Communities                                      C 352/9
                      ORDER OF THE COURT                                   Court of First Instance of the European Communities (Third
                                                                           Chamber) of 16 March 1998 in Case T-235/97 Goldstein v
                           of 2 July 1999                                  Commission, not published in the European Court Reports,
                                                                           seeking to have that order set aside, the other party to
                                                                           the proceedings being the Commission of the European
in Case C-158/99 (reference for a preliminary ruling from
                                                                           Communities (Agent: Richard Lyal) — the Court (Fourth
the Tribunal Tributário de Primeira Instância de Faro):
                                                                           Chamber), composed of: P.J.G. Kapteyn, President of the
    Corticeira Amorim-Algarve Lda v Fazenda Pública (1)
                                                                           Chamber, J.L. Murray (Rapporteur) and H. Ragnemalm, Judges;
                                                                           J. Mischo, Advocate General; R. Grass, Registrar, has made an
                          (Inadmissibility)                                order on 8 July 1999, the operative part of which is as follows:
                          (1999/C 352/17)                                  1. The appeal is dismissed.
                                                                           2. Mr Goldstein is to pay the costs.
                   (Language of the case: Portuguese)
In Case C-158/99: reference to the Court under Article 234 EC              (1) OJ C 234 of 25.7.1998.
(formerly Article 177 of the EC Treaty) from the Tribunal
Tributário de Primeira Instância de Faro (Portugal) for a
preliminary ruling in the proceedings pending before that
court between Corticeira Amorim-Algarve Lda and Fazenda
Pública, intervener: Ministério Público, on the interpretation of
Council Directive 69/335/EEC of 17 July 1969 concerning
indirect taxes on the raising of capital (OJ, English Special              Appeal brought on 24 June 1999 by Limburgse Vinyl
Edition 1969 (II), p. 412), in the version thereof resulting from          Maatschappij NV against the judgment delivered on
Council Directive 85/303/EEC of 10 June 1985 (OJ 1985                      20 April 1999 by the Third Chamber, Extended Compo-
L 156, p. 23) — the Court, composed of: G.C. Rodrı́guez                    sition, of the Court of First Instance of the European
Iglesias, President, P.J.G. Kapteyn, J.-P. Puissochet, G. Hirsch           Communities in Joined Cases T-305/94, T-306/94,
and P. Jann, Presidents of Chambers, J.C. Moitinho de Almeida,             T-307/94, T-313/94, T-314/94, T-315/94, T-316/94,
C. Gulmann, J.L. Murray, D.A.O. Edward, H. Ragnemalm (Rap-                 T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94
porteur), L. Sevón, M. Wathelet and R. Schintgen, Judges;                 between Limburgse Vinyl Maatschappij NV, Elf Atochem
G. Cosmas, Advocate General; R. Grass, Registrar, has made an              SA, BASF AG, Shell International Chemical Company Ltd,
order on 2 July 1999, the operative part of which is as follows:           DSM NV and DSM Kunststoffen BV, Wacker-Chemie
                                                                           GmbH, Hoechst AG, Société Artésienne de Vinyle, Monte-
The reference for a preliminary ruling made by the Tribunal Tributário    dison SpA, Imperial Chemical Industries plc, Hüls AG and
de Primeira Instância de Faro is inadmissible.                             Enichem SpA, and the Commission of the European
                                                                                Communities
(1) OJ C 188 of 3.7.1999.
                                                                                (Case C-238/99 P)
                                                                                (1999/C 352/19)
                                                                           An appeal against the judgment delivered on 20 April 1999
                                                                           by the Third Chamber, Extended Composition, of the Court of
                      ORDER OF THE COURT                                   First Instance of the European Communities in Joined Cases
                                                                           T-305/94, T-306/94, T-307/94, T-313/94, T-314/94,
                         (Fourth Chamber)                                  T-315/94, T-316/94, T-318/94, T-325/94, T-328/94,
                                                                           T-329/94 and T-335/94 between Limburgse Vinyl Maatschap-
                           of 8 July 1999                                  pij NV, Elf Atochem SA, BASF AG, Shell International
                                                                           Chemical Company Ltd, DSM NV and DSM Kunststoffen BV,
                                                                           Wacker-Chemie GmbH, Hoechst AG, Société Artésienne de
in Case C-199/98 P: Anthony Goldstein v Commission of                      Vinyle, Montedison SpA, Imperial Chemical Industries plc,
                  the European Communities (1)                             Hüls AG and Enichem SpA, and the Commission of the
                                                                           European Communities was brought before the Court of
(Appeal — Manifestly inadmissible and manifestly                           Justice of the European Communities on 24 June 1999 by
                       unfounded application)                              Limburgse Vinyl Maatschappij NV, represented by I.G.F. Cath,
                                                                           Advocaat with a right of audience before the Hoge Raad der
                          (1999/C 352/18)                                  Nederlanden, with an address for service in Luxembourg at the
                                                                           Chambers of L. Dupong, 4-6 Rue de la Boucherie.
                     (Language of the case: English)                       The appellant claims that the Court should:
In Case C-199/98 P: Anthony Goldstein, residing at Harrow                  (1) set aside, either wholly or in part, the judgment delivered
(United Kingdom), represented by Raymond St. John Murphy,                      by the Court of First Instance of the European Communities
Solicitor, of Messrs Merriman White, 3 King’s Bench Walk,                      on 20 April 1999 against which the present appeal has
Inner Temple, London — appeal against the order of the                         been brought, and terminate the proceedings;


title: Case C-225/13: Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 29 April 2013 — Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix v Région wallonne

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/13

         Request for a preliminary ruling from the Conseil d’État (Belgium) lodged on 29 April 2013 — Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix v Région wallonne
   (Case C-225/13)
   2013/C 207/24
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicants: Ville d’Ottignies-Louvain-la-Neuve, Michel Tillieut, Willy Gregoire, Marc Lacroix

      Defendant: Région wallonne

      Questions referred

               1.

               Is Article 7 of Directive 75/442/EEC (1) on waste to be interpreted as permitting the classification as a waste management plan of a legislative provision that states that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan, landfills authorised before that waste management plan entered into force may, after such entry into force, be the subject-matter of new authorisations in respect of the plots covered by the authorisation pre-dating the entry into force of the waste management plan?

               2.

               Is Article 2(a) of Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment (2) to be interpreted as including within the meaning of plan and programme a legislative provision which states that, in derogation from the rule that no landfills may be authorised except on the sites provided for in the waste management plan required by Article 7 of Directive 75/442/EEC on waste, landfills authorised before that waste management plan entered into force may, after such entry into force, be the subject-matter of new authorisations in respect of the plots covered by the authorisation pre-dating the entry into force of the waste management plan?

               3.

               If the answer to the second question is in the affirmative, does the second paragraph of Article 70 of the Decree of 27 June 1996 on waste, as amended by the Decree of 16 October 2003, satisfy the requirements for the assessment of effects laid down in Directive 2001/42/EC?

      (1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

      (2)  Directive 2001/42/EC of the European Parliament and of the Council of 27 June 2001 on the assessment of the effects of certain plans and programmes on the environment (OJ 2001 L 197, p. 30).


title: Case C-155/12: Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland), lodged on 30 March 2012 — Minister Finansów v RR Donnelley Global Turnkey Solutions Poland Sp. z o.o.

text:
               23.6.2012

               EN

               Official Journal of the European Union

               C 184/3

         Reference for a preliminary ruling from the Naczelny Sąd Administracyjny (Poland), lodged on 30 March 2012 — Minister Finansów v RR Donnelley Global Turnkey Solutions Poland Sp. z o.o.
   (Case C-155/12)
   2012/C 184/05
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny

      Parties to the main proceedings

      Appellant: Minister Finansów

      Respondent: RR Donnelley Global Turnkey Solutions Poland Sp. z o.o.

      Questions referred

               1.

               Are the provisions of Articles 44 and 47 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (1) to be interpreted as meaning that complex services relating to the storage of goods, which comprise admission of the goods to the warehouse, placing the goods on the appropriate storage shelves, storing the goods for the customer, issuing the goods, unloading and loading and, in the case of certain customers, repackaging materials supplied in collective packaging into individual sets, constitute services connected with immovable property which are to be taxed, in accordance with Article 47 of Directive 2006/112, at the place where the immovable property is located?

               2.

               Alternatively, should it be accepted that the services in question are to be taxed, pursuant to Article 44 of Directive 2006/112, at the place where the customer for whom the services are supplied has established his business on a permanent basis or has a fixed establishment or, in the absence of such a place, at the place where he has his permanent address or usually resides?

      (1)  OJ 2006 L 347, p. 1.


title: Case C-310/06: Reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands) lodged on 14 July 2006 — F.T.S. International BV v Inspecteur van de Belastingdienst/Douane West

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/25

         Reference for a preliminary ruling from the Gerechtshof te Amsterdam (Netherlands) lodged on 14 July 2006 — F.T.S. International BV v Inspecteur van de Belastingdienst/Douane West
   (Case C-310/06)
   (2006/C 224/46)
   Language of the case: Dutch
   Referring court
   Gerechtshof te Amsterdam
   Parties to the main proceedings

      Applicant: F.T.S. International BV,

      Defendant: Inspecteur van de Belastingdienst/Douane West
   Question referred
   Is Commission Regulation (EC) No 1223/2002 (1) of 8 July 2002 concerning the classification of certain goods in the Combined Nomenclature valid?

      (1)  Commission Regulation (EC) No 1223/2002 of 8 July 2002 concerning the classification of certain goods in the Combined Nomenclature (OJ 2002 L 179, p.8).


title: Reference for a preliminary ruling by the Pretura Circondariale di Padova by order of that court of 17 December 1996 in the case of Tommaso Nalon against Ente Poste Italiane (Case C-123/97)

text:
No C 166/8             EN                    Official Journal of the European Communities                                        31 . 5 . 97
Pleas in law and main arguments adduced in support:                     ( b ) Do national rules exempting a public economic entity
                                                                              from complying with the general rules laid down by
Whilst Article 171 ( 1 ) of the EC Treaty does not lay down                   ordinary private-law provisions for all the other
a specific time-limit for the Member State concerned to                       operators in the sector in respect of fixed-term
fulfil its obligations arising under a judgment of the                        contracts of employment constitute an aid within the
Court of Justice, the latter must nevertheless begin                          meaning of Article 92 of the EEC Treaty ?
implementation of the judgment without delay and
conclude it as soon as possible .
The Federal Republic of Germany has failed to take
binding measures to transpose Article 3 ( 1 ) of Directive              Reference for a preliminary ruling from the Vaasan
75/440/EEC (2 ). It has also not yet drawn up a systematic              Hovioikeus by order of that court of 21 March 1997 in
plan of action under Article 4 ( 2 ) of the Directive, nor, in          the     case    of Markku Läärä and Others            v.   District
the Bundesländer, drawn up improvement plans for all                                         Prosecutor and Finnish State
watercourses . Finally, it has failed to comply with its                                           (Case C-124/97)
obligations to provide information under Article 8 of
Council Directive 79/869/EEC ( 3 ) of 9 October 1979 .                                              ( 97/C 166/14 )
The application for determination of a penalty payment                  Reference has been made to the Court of Justice of the
is based on Article 171 ( 2 ) of the EC Treaty. The                     European Communities by an order of the Vaasan
Commission justifies the amount of the penalty by                       Hovioikeus (Vaasa Court of Appeal ) of 21 March 1997,
reference to its calculation method set out in Official                 which was received at the Court Registry on 25 March
Journal No C 242 of 21 . 8 . 1996 , p. 6 . It assesses the              1997, for a preliminary ruling in the case of Markku
Treaty infringement as severe ( Coefficient 8/20 ) and                  Läärä , Cotswold Microsystems Limited and Oy
regards its duration as very considerable ( Coefficient 2/3 ).          Transatlantic        Software   Limited v.   District Prosecutor
Concerning the deterrent effect of the penalty applied for,             (Jyväskylä Prosecutor's Office ) and Finnish State,
the Commission uses a calculation formula notified to the               represented by the Provincial Governments of Keski-Suomi
Member States, whereby reference is made to the relative                und Uusimaa, on the following questions :
position of each Member State in relation to its gross
domestic product and its weighted voting strength in the                 1 . Is the judgment of the Court of Justice of 24 March
Council under Article 148 ( 2 ) of the EC Treaty.                             1994 in Case C-275/92 Her Majesty's Customs and
                                                                              Excise v. Gerhart Schindler and Jörg Schindler (^ to be
(') [ 1991 ] ECR 1-4983 .                                                     interpreted in such a way that it may be regarded as
( 2 ) OJ No L 194 , 1975 , p . 26 .                                           equivalent to the present case ( compare the judgment
( 3 ) OJ No L 271 , 1979 , p . 44 .                                           of the Court of Justice of 6 October 1982 in Case 283/
                                                                              81 Sri CILFIT and Lanificio di Gavardo SpA v.
                                                                              Ministry of Health ( 2 ) and that the provisions of the
                                                                              EC Treaty should therefore be interpreted in the
                                                                              present case in the same way as in the aforesaid case ?
Reference for a preliminary ruling by the Pretura                             In case the answer to the first question is wholly or
Circondariale di Padova by order of that court of                             partly negative, the Hovioikeus submits the following
17 December 1996 in the case of Tommaso Nalon against                         additional questions .
                        Ente Poste Italiane
                          ( Case C-123/97 )                             2 . Do the rules of the EC Treaty on the free movement of
                            ( 97/C 166/ 13 )                                  goods and services (Articles 30, 59 and 60 ) apply also
                                                                              to gaming machines like those in question here ?
Reference has been made to the Court of Justice of the                   3 . If the answer to the second question is affirmative,
European Communities by order of the Pretura Circonda
riale di Padova (Padua District Magistrate's Court ) of                       ( a ) do Articles 30 , 59 or 60 or any other article
 17 December 1996 , which was received at the Court                                 preclude Finland from restricting operation of the
Registry on 24 March 1997, for a preliminary ruling in                              gaming machines in question by granting the
the case of Tommaso Nalon against Ente Poste Italiane on                            sole right to the Raha-automaattiyhdistys ( Slot
the following questions concerning the interpretation of                            Machine Association ), irrespective of whether the
Articles 92 and 93 of the Treaty:                                                   restriction affects domestic and foreign organizers
                                                                                of gaming in the same way, and
 ( a ) May the questions concerning the compatibility of the                  ( b ) do there exist for that restriction any justifications
       national law with the Community provisions at issue                          as referred to in Articles 36 or 56 or any other
       be raised and determined in proceedings which have                           article of the EC Treaty, on the grounds put
       not been initiated by undertakings having interests                          forward in the Arpajaislaki ( Law on Lotteries ) or
       protected by the Community rules designed to                                 its preparatory work or any other grounds, and in
       safeguard competition ?                                                      considering that question may it be relevant how


title: Case T-391/17: Action brought on 28 June 2017 — Romania v Commission

text:
               14.8.2017

               EN

               Official Journal of the European Union

               C 269/33

         Action brought on 28 June 2017 — Romania v Commission
   (Case T-391/17)
   (2017/C 269/45)
   Language of the case: Romanian

      Parties

      Applicant: Romania (represented by: R. Radu, C.-M. Florescu, E. Gane and L. Liţu, acting as Agents)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s (EU) decision of 29 March 2017 on the proposed citizens’ initiative entitled ‘Minority SafePack — one million signatures for diversity in Europe’;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the provisions of the Treaties of the European Union relating to the competence of the Union.

                           —

                           The proposed citizens’ initiative is exclusively aimed at improving the protection of the rights of persons belonging to national and linguistic minorities, and has no direct link with cultural diversity for the purposes of Article 3 TEU and Article 167 TFEU.

               2.

               Second plea in law, alleging a failure to comply with the obligation to state reasons under the second paragraph of Article 296 TFEU.

                           —

                           The Commission confines itself to listing the proposals for measures by means of which statements of support will be collected from citizens and does not put forward any legal argument to support the conclusion that these fall within its sphere of competence.


title: Case T-892/16: Action brought on 19 December 2016 — Apple Sales International and Apple Operations Europe v Commission

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/37

         Action brought on 19 December 2016 — Apple Sales International and Apple Operations Europe v Commission
   (Case T-892/16)
   (2017/C 053/46)
   Language of the case: English

      Parties

      Applicants: Apple Sales International (Cork, Ireland) and Apple Operations Europe (Cork, Ireland) (represented by: A. von Bonin and E. van der Stok, lawyers, D. Beard QC, A. Bates, L. Osepciu and J. Bourke, Barristers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the decision of the European Commission of 30 August 2016 on State aid SA.38373 (2014/C) (ex 2014/NN) (ex 2014/CP) implemented by Ireland to Apple;

               —

               alternatively, annul the decision in part; and

               —

               order the Commission to pay the applicants’ costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the Commission erred in its interpretation of Irish law.

                           —

                           The applicants consider that as non-resident Irish companies, they were only liable to Irish corporation tax under Section 25 of the Taxes Consolidation Act 1997 on ‘chargeable profits’ attributable to activities performed by their Irish branches. The Opinions properly reflected the branches’ ‘chargeable profits’ and did not therefore confer an advantage. The Commission also erred by finding that profit allocation under Section 25 must be under the ‘arm’s length principle’ (the ‘ALP’).

               2.

               Second plea in law, alleging that the ALP does not operate as the test for State aid in tax assessments under Article 107 TFEU.

                           —

                           The Commission was wrong to find that Article 107(1) TFEU required Ireland to calculate the applicants’ taxable profits under Section 25 in accordance with the Commission’s ALP.

               3.

               Third plea in law, alleging that the Commission made fundamental errors relating to the applicants’ activities outside of Ireland.

                           —

                           The Commission made fundamental errors by failing to recognise that the applicants’ profit-driving activities, in particular the development and commercialisation of intellectual property (‘Apple IP’), were controlled and managed in the United States. The profits from those activities were attributable to the United States, not Ireland. The Commission wrongly considered only the minutes of the applicants’ board meetings and ignored all other evidence of activities.

               4.

               Fourth plea in law, alleging that the Commission made fundamental errors relating to the applicants’ activities in Ireland.

                           —

                           The Commission failed to recognise that the Irish branches carried out only routine functions and were not involved in the development and commercialisation of Apple IP which drove profits.

               5.

               Fifth plea in law, alleging that the Commission’s presumptions are contrary to the burden of proof, OECD guidelines and unanimous expert evidence; the conclusion is self-contradictory.

                           —

                           The Commission presumed that all of the applicants’ critical profit-making activities were attributable to the Irish branches without properly assessing the evidence, including extensive expert evidence showing that the profits were not attributable to activities in Ireland.

               6.

               Sixth plea in law, alleging that the applicants were treated in the same way as other non-resident taxpayers in Ireland and were not afforded selective treatment.

                           —

                           The Commission failed to prove selectivity: it has wrongly treated the applicants as if they were Irish resident companies and as if they should be taxed on their worldwide profits.

               7.

               Seventh plea in law, alleging that the primary line must be annulled for a breach of an essential procedural requirement.

                           —

                           The opening decision did not articulate the primary line of reasoning. If it had, Apple would have been able to present evidence which could and should have changed the outcome.

               8.

               Eighth plea in law, alleging that there were errors of fact and assessment in the Commission’s application of the TNMM to the Irish branches under the subsidiary line.

                           —

                           The Commission’s subsidiary line wrongly rejects expert evidence and fails to articulate what a correct profit attribution analysis would be.

               9.

               Ninth plea in law, alleging that the alternative line is vitiated by breach of essential procedural requirements and manifest error of assessment.

                           —

                           The Commission was wrong to compare the opinions with other opinions issued by Irish Revenue to third parties since the factual circumstances were different.

               10.

               Tenth plea in law, alleging that the subsidiary and alternative lines do not enable calculation of a recovery amount.

                           —

                           The decision does not contain any explanation of how much is to be recovered under the subsidiary or alternative lines, contrary to State aid rules and the principle of legal certainty.

               11.

               Eleventh plea in law, alleging that the Commission violated the principles of legal certainty and non-retroactivity by ordering recovery of the alleged aid.

               12.

               Twelfth plea in law, alleging a failure to conduct a diligent and impartial investigation.

               13.

               Thirteenth plea in law, alleging a breach of Article 296 TFEU and Article 41(2)(c) of the Charter of Fundamental Rights of the European Union.

               14.

               Fourteenth plea in law, alleging that the decision exceeds the Commission’s competence under Article 107(1) TFEU.

                           —

                           The Commission has violated legal certainty by ordering recovery under an unforeseeable interpretation of State aid law; failed to examine all relevant evidence contrary to its obligation of due diligence; failed to reason the decision adequately; and exceeded its competence under Article 107 TFEU by attempting to redesign Ireland’s corporate tax system.


title: Joined Cases C-94/04 and C-202/04: Judgment of the Court (Grand Chamber) of 5 December 2006 (references for a preliminary ruling from the Corte d'appello di Torino and the Tribunale di Roma — Italy) — Federico Cipolla v Rosaria Fazari, née Portolese, C-94/04) and Stefano Macrino, Claudia Capodarte v Roberto Meloni (C-202/04) (Community competition rules — National rules concerning lawyers' fees — Setting of professional scales of charges — Freedom to provide services)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 331/2

         Judgment of the Court (Grand Chamber) of 5 December 2006 (references for a preliminary ruling from the Corte d'appello di Torino and the Tribunale di Roma — Italy) — Federico Cipolla v Rosaria Fazari, née Portolese, C-94/04) and Stefano Macrino, Claudia Capodarte v Roberto Meloni (C-202/04)
   (Joined Cases C-94/04 and C-202/04) (1)

   (Community competition rules - National rules concerning lawyers' fees - Setting of professional scales of charges - Freedom to provide services)
   (2006/C 331/03)
   Language of the case: Italian
   Referring court
   Corte d'appello di Torino
   Parties to the main proceedings

      Applicants: Federico Cipolla (C-94/04) and Stefano Macrino, Claudia Capodarte (C-202/04)

      Defendants: Rosaria Fazari, née Portolese (C-94/04), Roberto Meloni (C-202/04)
   Re:
   Reference for a preliminary ruling — Corte d'appello di Torino — Applicability of Community competition rules to lawyers' services — National rules laying down scales of fees to which no exceptions can be made and under which any agreement between client and lawyer concerning professional fees is void
   Reference for a preliminary ruling — Tribunale di Roma — Comparability with Articles 10 EC and 81 EC of national rules approving a tariff of fees encompassing services provided by lawyers in the area of legal representation and legal consultation which may also be provided by non-lawyers — Tariff proposed by the professional body of lawyers
   Operative part of the judgment

               1.

               Articles 10 EC, 81 EC and 82 EC do not preclude a Member State from adopting a legislative measure which approves, on the basis of a draft produced by a professional body of lawyers such as the Consiglio nazionale forense (National Lawyers' Council), a scale fixing a minimum fee for members of the legal profession from which there can generally be no derogation in respect of either services reserved to those members or those, such as out-of-court services, which may also be provided by any other economic operator not subject to that scale.

               2.

               Legislation containing an absolute prohibition of derogation, by agreement, from the minimum fees set by a scale of lawyers' fees, such as that at issue in the main proceedings, for services which are (a) court services and (b) reserved to lawyers constitutes a restriction on freedom to provide services laid down in Article 49 EC. It is for the national court to determine whether such legislation, in the light of the detailed rules for its application, actually serves the objectives of protection of consumers and the proper administration of justice which might justify it and whether the restrictions it imposes do not appear disproportionate having regard to those objectives.

      (1)  OJ C 94, 17.4.2004.

      OJ C 179, 10.7.2004.


title: Case C-29/07: Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic

text:
               22.12.2007

               EN

               Official Journal of the European Union

               C 315/31

         Order of the President of the Court of 19 July 2007 — Commission of the European Communities v Hellenic Republic
   (Case C-29/07) (1)

   (2007/C 315/56)

      Language of the case: Greek

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 56, 10.3.2007.


title: Case T-257/10: Action brought on 4 June 2010 — Italy v Commission

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/50

         Action brought on 4 June 2010 — Italy v Commission
   (Case T-257/10)
   ()
   2010/C 221/81
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s decision of 24 March 2010 (C(2010) 1711 final) concerning State aid No C 4/2003 (ex NN 102/2002);

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The Italian Republic contests before the General Court the Commission’s decision of 24 March 2010 (C(2010) 1711 final), concerning State aid No C 4/2003 (ex NN 102/2002), notified by letter of 25 March 2010 (SG Greffe (2010) D/4224. That decision — which was adopted following the judgment of the Court of Justice in Case C-494/06 P Commission v Italy and WAM [2009] ECR I-3639, dismissing the Commission’s appeal against the judgment by which the General Court had upheld the actions brought by Italy and by WAM against Commission Decision 2006/177/EC concerning State aid C 4/2003 (ex NN 102/2002) granted by Italy in favour of WAM — categorised as incompatible with the common market the measures relating to the interest rate subsidies granted to WAM SpA under Law 394/81 concerning measures in support of Italian exports in 1995 and 2000.
   In support of its action, the Italian Republic submits:

               First plea in law. Infringement of Article 4(5) and (6) of Regulation (EC) No 659/99 (1) and of the principle ne bis in idem. In this connection it is stated that the Commission’s earlier decision, adopted in 2004, concerning the same aid was retrospectively annulled in its entirety by the General Court and the Court of Justice. That implied silent assent to the aid with effect from the decision to initiate a formal investigation in January 2003. The principle ne bis in idem also applies.

               Second plea in law. Infringement of Article 108(2) and (3) TFEU and Articles 4, 6, 7, 10, 13 and 20 of Regulation (EC) 659/99. According to the Italian Republic, the new decision contains an entirely fresh examination of the aid in question. It should therefore have been adopted by means of a formal investigation procedure in the course of which both the Member State concerned and the interested parties were given an opportunity to make known their views.

               Third plea in law. Contravention of the authority of res iudicata. In the view of the Italian Republic, the judgments of the General Court and of the Court of Justice regarding the earlier aid have the authority of res iudicata in relation to the fact that the aid does not facilitate exports but rather eases the cost burden of business penetration of third markets, and the fact that simple generalised references to the principles governing State aid which has a direct impact on the internal market are not enough by way of reasons to substantiate a decision on aid which has a direct impact on a third market and, what is more, a market of scant importance. As it is, in the new decision the Commission has ignored the res iudicata and paid no more than lip service to those principles.

               Fourth plea in law. Breach of the principle of audi alteram partem and infringement of Article 20 of Regulation (EC) No 659/99. Lack of a preliminary investigation. The Italian Republic states in this connection that the ‘preliminary investigation’ on the basis of which the new decision was adopted took the form of a 2009 university research paper on the recipient undertaking, which the Commission neither sent to the interested parties nor discussed with them before adopting the new decision.

               Fifth plea in law. Infringement of Article 107(1) TFEU and Articles 1(1)(d) and 2 of Regulation (EC) No 1998/2006. Contravention of res iudicata. Logical inconsistency in the decision. According to the Italian Republic, the aid in question fell within the scope of Regulation No 1998/2006 on ‘de minimis’ aid, in that it was worth less than EUR 200 000 over three years. For that reason, the aid did not constitute State aid and did not need to be notified. Regulation No 1998/2006 applied because it was a matter of res iudicata that the aid was not export aid.

               Sixth plea in law. Infringement of Article 107(3)(c) and (e) TFEU and Article 4(1) and (2) of Regulation (EC) No 70/2001. In any event, the aid was compatible with the common market pursuant to Article 107(3)(c) TFEU because it was intended to promote the internationalisation of Community undertakings. The decision failed to consider that point.

               Seventh plea in law. Infringement of Article 14 of Regulation (EC) No 659/99 and breach of the principle of proportionality. In any event, the aid to be recovered has been over-estimated: the actual aid is equal to the difference between the preferential rate and the reference rate at the time of the individual payments of the instalments, not to the difference between the preferential rate and the reference rate in effect at the (much earlier) time at which the financing was granted.

         The Italian Republic also alleges breach of the duty to state reasons and of the principle of the protection of legitimate expectations.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1).


title: Case T-299/13: Action brought on 31 May 2013 — El Corte Inglés v OHIM — Azzedine Alaïa (ALIA)

text:
               27.7.2013

               EN

               Official Journal of the European Union

               C 215/17

         Action brought on 31 May 2013 — El Corte Inglés v OHIM — Azzedine Alaïa (ALIA)
   (Case T-299/13)
   2013/C 215/24
   Language in which the application was lodged: Spanish

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela and J. L. Rivas Zurdo, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Azzedine Alaïa (Paris, France)

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 March 2013 in Case R 819/2012-2;

               —

               order both OHIM and Azzedine Alaïa to pay the costs of the present proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Applicant

      Community trade mark concerned: Word mark ‘ALIA’ for goods in Classes 3, 14, 18 and 25 — Community trade mark application No 3 788 999

      Proprietor of the mark or sign cited in the opposition proceedings: Azzedine Alaïa

      Mark or sign cited in opposition: International word mark ‘ALAÏA’ and Community figurative mark ‘ALAÏA PARIS’ for goods and services in Classes 3, 16, 18, 20, 25 and 35 as well as earlier non-registered trade mark ‘ALAÏA’

      Decision of the Opposition Division: Opposition upheld in part

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law:

               —

               Breach of Rules 20(6) and 50(1) of Regulation No 2868/95

               —

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


title: Action brought on 21 October 1997 by the Commission of the European Communities against the United Kingdom of Great Britain and Northern Ireland (Case C-359/97)

text:
20 . 12 . 97         EN                 Official Journal of the European Communities                                           C 387/7
VAT \vhatever the purpose or results of that activity' as          should have been taken into account as part of Ireland's
stated in Article 4 paragraph 1 of the Directive .                 contribution to the own resources of the Communities .
                                                                   (') Council Directive 77/388/EEC of 17 May 1977 on the
In particular, the Commission submits that operating                   harmonization of the laws of the Member States relating to
motorways, inland waterways and port facilities is an                  turnover taxes — Common system of value added tax :
economic activity.                                                     uniform basis of assessment ( OJ L 145, 13 . 6 . 1977, p. 1 ).
The case-law of the Court makes it clear that a supply of
services is subject to VAT when the service in question is
provided in return for payment, the taxable base being
everything which makes up the consideration given in
return for that service . As the Court has pointed out there       Action brought on 21 October 1997 by the Commission
must be 'a direct link between the service rendered and            of the European Communities against the United
the consideration received '.                                              Kingdom of Great Britain and Northern Ireland
                                                                                Case C-359/97 )
With regard to tolls paid for the use of a road there is                                     ( 97/C 387/ 12 )
incontestably a direct link between the service rendered
and the consideration received in exchange, if payment is
levied each time a vehicle is allowed to use the road .            An action against the United Kingdom of Great Britain
                                                                   and Northern Ireland was brought before the Court of
                                                                   Justice of the European Communities on 21 October 1997
The fact that a private operator carries out activities            by the Commission of the European Communities,
which contribute to the general good does not prevent              represented by Helene Michard and Barry Doherty,
those activities being subject to VAT.                             members of its Legal Service, acting as Agents, with an
                                                                   address for service in Luxembourg at the office of Carlos
                                                                   Gomez de la Cruz, also a member of its Legal Service,
Community definition                                               Centre Wagner.
                                                                   The Applicant claims that the Court should :
The Sixth VAT Directive imposes VAT on any 'economic
activity' of which 'supplying services' is one category. In
this context the concepts of 'supplying services' and              — declare that in not subjecting tolls for the use of
'economic activity' for the purposes of the Sixth VAT                   existing toll-roads and toll-bridges in the United
Directive must be interpreted objectively on the basis of               Kingdom to value-added tax contrary to the provisions
the economic reality of the transaction and irrespective of             of Articles 2, 4 ( 1 ), ( 2 ) and ( 5 ) of the Sixth VAT
the manner in which the transaction may be classified                   Directive (') and by failing to make available to the
under the various national legal systems . Any other                    Commission      the    amounts   of   own      resources      and
interpretation would encroach upon the uniform                          interest on late payment as a consequence of this
application of Community law.                                           infringement the United Kingdom has failed to fulfil
                                                                        its obligations under the EC Treaty,
Interpreted objectively, the concept of ' supplying services'
encompasses services supplied to users by the operators of         — order the United Kingdom to bear the costs of these
a road or other element of infrastructure used for the                  proceedings.
transport of goods or persons. This interpretation has
always been accepted by a number of Member States
notably Spain and Italy which levy VAT on all tolls paid           Pleas in law and main arguments adduced in support:
for the use of motorways and other elements of road
infrastructure . The exemption from VAT granted by
                                                                   Value Added Tax
certain Member States including Ireland therefore throws
out of balance not only the operation of the common
system of value added tax but also the contributions to            Taxable transactions
the Communities' own resources by the Member States .
                                                                   The heart of the present case is whether certain
The absence of VAT on road tolls is incompatible with              transactions are subject to VAT. As a result, it is necessary
Community rules on the collection of the Communities'              to establish the exact scope of the tax. Article 2
own resources .                                                    paragraph 1 of the Sixth VAT Directive provides that
                                                                   value added tax shall be levied on 'the supply of goods or
                                                                   services effected for consideration within the territory of
The Commission submits that if road tolls are subject to           the country by a taxable person acting as such'. Article 4
VAT, it follows that a proportion of the VAT concerned             of the same Directive provides some definitions:
 ---pagebreak--- C 387/8               fENl                Official Journal of the European Communities                                         20 . 12 . 97
' 1 . 'Taxable    person'    shall mean   any    person   who        under the various national legal systems . Any other
      independently carries out in any place any economic            interpretation would encroach upon the uniform
      activity specified in paragraph 2 whatever the purpose         application of Community law.
      or results of that activity.
                                                                     Interpreted objectively, the concept of ' supplying services'
  2 . The economic activities referred to in paragraph 1             encompasses services supplied to users by the operators of
      shall comprise all activities of producers traders and         a road or other element of infrastructure used for the
      persons supplying services      .). The exploitation of        transport of goods or persons. This interpretation has
      tangible or intangible property for the purpose of             always been accepted by a number of Member States
      obtaining income therefrom on a continuing basis               notably Spain and Italy which levy VAT on all tolls paid
      shall also be considered an economic activity '.               for the use of motorways and other elements of road
      ( Emphasis added )                                             infrastructure . The exemption from VAT granted by
                                                                     certain Member States including the United Kingdom
                                                                     therefore throws out of balance not only the operation of
The Commission submits that one example of 'the                      the common system of value added tax but also the
exploitation of tangible or intangible property for the              contributions to the Communities' own resources by the
purpose of obtaining income therefrom on a continuing                Member States .
 basis' is operating a road and charging a toll for its use .
As a result, such operations are an economic activity and
 hence the person carrying them out is a taxable person for          The absence of VAT on road tolls is incompatible with
the purposes of the Sixth VAT Directive .                            Community rules on the collection of the Communities'
                                                                     own resources .
The Commission submits that a transaction which falls
 under the scope of the Sixth VAT Directive is subject to            The Commission submits that if road tolls are subject to
 VAT Svhatever the purpose or results of that activity' as           VAT, it follows that a proportion of the VAT concerned
 stated in Article 4 paragraph 1 of the Directive .
                                                                     should have been taken into account as part of the United
                                                                     Kingdom's contribution to the own resources of the
                                                                     Communities .
 In particular, the Commission submits that operating
 motorways, inland waterways and port facilities is an
 economic activity.                                                  (') Council Directive 77/388/EEC of 17 May 1977 on the
                                                                         harmonization of the laws of the Member States relating to
                                                                         turnover taxes — Common system of value added tax:
                                                                         uniform basis of assessment ( OJ L 145 , 13 . 6 . 1977, p. 1 ).
 The case-law of the Court makes it clear that a supply of
 services is subject to VAT when the service in question is
 provided in return for payment, the taxable base being
 everything which makes up the consideration given in
 return for that service . As the Court has pointed out there
 must be 'a direct link between the service rendered and
 the consideration received '.
                                                                     Action brought on 22 October 1997 by the Commission
                                                                      of the European Communities against the Italian Republic
 With regard to tolls paid for the use of a road there is                                     ( Case C-365/97)
 incontestably a direct link between the service rendered
 and the consideration received in exchange, if payment is                                      ( 97/C 387/13 )
 levied each time a vehicle is allowed to use the road .
 The fact that a private operator carries out activities             An action against the Italian Republic was brought before
 which contribute to the general good does not prevent               the Court of Justice on 22 October 1997 by the
 those activities being subject to VAT.                               Commission of the European Communities, represented
                                                                      by Paolo Stancanelli, of its Legal Service, acting as Agent,
                                                                      assisted by Massimo Merola, of the Rome Bar, with an
 Community definition
                                                                      address for service in Luxembourg at the office of Carlos
                                                                      Gomez de la Cruz, Wagner Centre , Kirchberg.
 The Sixth VAT Directive imposes VAT on any 'economic
 activity' of which 'supplying services' is one category. In          The applicant claims that the Court should:
 this context the concepts of ' supplying services' and
 'economic activity' for the purposes of the Sixth VAT
 Directive must be interpreted objectively on the basis of            — Declare that the Italian Republic has failed to fulfil its
 the economic reality of the transaction and irrespective of              obligations under the EC Treaty in that, with regard to
 the manner in which the transaction may be classified                    the S. Rocco riverbed,


title: Case T-448/13: Judgment of the General Court of 3 June 2015 — Bora Creations v OHIM — Beauté prestige international (essence) (Community trade mark — Invalidity proceedings — Community word mark essence — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — No distinctive character — Article 7(1)(b) of Regulation No 207/2009)

text:
               20.7.2015

               EN

               Official Journal of the European Union

               C 236/35

         Judgment of the General Court of 3 June 2015 — Bora Creations v OHIM — Beauté prestige international (essence)
   (Case T-448/13) (1)

   ((Community trade mark - Invalidity proceedings - Community word mark essence - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - No distinctive character - Article 7(1)(b) of Regulation No 207/2009))
   (2015/C 236/46)
   Language of the case: English

      Parties

      Applicant: Bora Creations, SL (Ceuta, Spain) (represented by: R. Lange, G. Hild and C. Pape, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: L. Rampini, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Beauté prestige international (Paris, France) (represented by: T. de Haan and P. Péters, lawyers)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 6 June 2013 (Case R 1085/2012-5), relating to invalidity proceedings between Beauté prestige international and Bora Creations, SL.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bora Creations, SL to pay the costs.

      (1)  OJ C 304, 19.10.2013.


title: Case C-452/09: Judgment of the Court (First Chamber) of 19 May 2011 (reference for a preliminary ruling from the Corte d’appello di Firenze (Italy)) — Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle v Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa (Directive 82/76/EEC — Freedom of establishment and freedom to provide services — Doctors — Acquisition of the title of medical specialist — Remuneration during the period of training — Five-year limitation period in respect of the right to payment of periodic remuneration)

text:
               9.7.2011

               EN

               Official Journal of the European Union

               C 204/8

         Judgment of the Court (First Chamber) of 19 May 2011 (reference for a preliminary ruling from the Corte d’appello di Firenze (Italy)) — Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle v Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa
   (Case C-452/09) (1)

   (Directive 82/76/EEC - Freedom of establishment and freedom to provide services - Doctors - Acquisition of the title of medical specialist - Remuneration during the period of training - Five-year limitation period in respect of the right to payment of periodic remuneration)
   2011/C 204/15
   Language of the case: Italian

      Referring court

   Corte d’appello di Firenze

      Parties to the main proceedings

      Applicants: Tonina Enza Iaia, Andrea Moggio, Ugo Vassalle

      Defendants: Ministero dell’Istruzione, dell’Università e della Ricerca, Ministero dell’Economia e delle Finanze, Università degli studi di Pisa

      Re:

   Reference for a preliminary ruling — Corte di Appello di Firenze (Court of Appeal, Florence) — Interpretation of Council Directive 82/76/EEC of 26 January 1982 amending Directive 75/362/EEC concerning the mutual recognition of diplomas, certificates and other evidence of formal qualifications in medicine, including measures to facilitate effective exercise of the right of establishment and freedom to provide services and Directive 75/363/EEC concerning the coordination of provisions laid down by law, regulation or administrative action in respect of activities of doctors (OJ 1982 L 43, p. 21) — Training of medical specialists — Right to appropriate remuneration during the period of training — Direct effect of a directive that has not yet been transposed into national law — Whether it is possible for a Member State to rely, in relation to the period preceding the first implementing legislation, on five-year or ten-year limitation in respect of a right arising under the directive

      Operative part of the judgment

   European Union law must be interpreted as not precluding a Member State from relying on the expiry of a reasonable limitation period as a defence in legal proceedings brought by an individual for the purpose of safeguarding rights conferred by a directive, even though the Member State did not transpose that directive correctly, on condition that, by its conduct, that Member State was not responsible for the delay in bringing the action. The finding by the Court that there has been a breach of European Union law does not affect the starting point of the limitation period, in the case where that breach is not in doubt.

      (1)  OJ C 24, 30.1.2010.