title: Case T-561/14: Action brought on 25 July 2014 — One of Us and Others v Parlement and Others

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/45

         Action brought on 25 July 2014 — One of Us and Others v Parlement and Others
   (Case T-561/14)
   2014/C 409/65
   Language of the case: English

      Parties

      Applicants: European Citizens’ Initiative One of Us and Others (represented by: C. de La Hougue, lawyer)

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

      Form of order sought

   The applicants claim that the Court should:

               —

               annul Commission Communication COM (2014) 355 final;

               —

               in the alternative, annul of Article 10(1)(c) of Regulation (EU) No 211/2011;

               —

               order the defendants to pay the applicant’s costs of this procedure.

      Pleas in law and main arguments

   In support of the action, the applicants rely on three pleas in law.

               1.

               First plea in law, alleging that the Commission’s reply to the applicants’ legislative proposal and to the issues raised by the applicants in the citizens’ initiative ‘One of us’ is unsatisfactory as the Commission i) does not respond to the fact that the human embryo is a human being and ii) does not address obvious contradictions.

               2.

               Second plea in law, alleging violation of the democratic process as the Commission:

                           —

                           does not provide legal reasons for its refusal to transmit the applicants’ proposal to the Parliament;

                           —

                           misunderstands the requirements of Regulation No 211/2011 (1) and maintains a monopoly of the legislative process contrary to the provisions of the Treaties on the institutional dialogue;

                           —

                           does not set out its legal and political conclusions separately as required by Regulation No 211/2011.

               3.

               Third plea in law, alleging non-conformity of Regulation No 211/2011 with the Treaties. The applicants allege that:

                           —

                           the objectives of the Lisbon Treaty to improve the institutions’ democratic legitimacy and to encourage the participation of European citizens in the democratic process are countered if a citizens’ initiative can be dismissed by the Commission for subjective or arbitrary reasons without being examined by the Parliament;

                           —

                           the rule of law is infringed if the Commission’s decision is not subject to legal review.

      (1)  Regulation (EU) No 211/2011 of the European Parliament and of the Council of 16 February 2011 on the citizens’ initiative (OJ 2011 L 65, p. 1).


title: Case C-230/03: Reference for a preliminary ruling by the Bundesverwaltungsgericht by order of that Court of 18 March 2003 in the case of Mehmet Sedef against Freie und Hansestadt Hamburg; Party to proceedings: The representative of the national interest in the Bundesverwaltungsgericht

text:
23.8.2003             EN                         Official Journal of the European Union                                          C 200/11
Reference for a preliminary ruling by the Bundesverwal-                        the occupation concerned (in this case, typical of mari-
tungsgericht by order of that Court of 18 March 2003 in                        time shipping)?
the case of Mehmet Sedef against Freie und Hansestadt
Hamburg; Party to proceedings: The representative of the
      national interest in the Bundesverwaltungsgericht
                         (Case C-230/03)
                                                                         Appeal brought on 27 May 2003 by Communità Montana
                                                                         della Valnerina against the judgment of the Third Chamber
                                                                         of the Court of First Instance of 13 March 2003 in Case
                                                                         T-340/00 Communità Montana della Valnerina v Commis-
                                                                                sion
                         (2003/C 200/16)
                                                                                (Case C-240/03 P)
                                                                                (2003/C 200/17)
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesverwaltungsge-
richt (Federal Administrative Court) of 18 March 2003,                   An appeal against the judgment of the Third Chamber of the
received at the Court Registry on 26 May 2003, for a                     Court of First Instance of 13 March 2003 in Case T-340/00
preliminary ruling in the case of Mehmet Sedef against Freie             Communità Montana della Valnerina (supported by Italian
und Hansestadt Hamburg; Party to proceedings: The represen-              Republic) against Commission of the European Communities
tative of the national interest in the Bundesverwaltungsgericht          was brought before the Court of Justice of the European
on the following questions:                                              Communities on 27 May 2003 by Communità Montana della
                                                                         Valnerina, represented by Paolo De Caterini, Emilio Cappelli
                                                                         and Andrea Bandini, lawyers.
                                                                         The applicant claims that the Court should:
1.    Are the third indent of Article 6(1) and Article 6(2) of
      Decision No 1/80 of 19 September 1980 of the Associa-              —     confirm, in any event, the ‘deletion’ of the position of the
      tion Council set up by the Agreement establishing an                     ‘Route des Sentiers’, as held by the Court of First Instance
      Association between the European Economic Community                      in the contested judgment;
      and Turkey (‘Decision No 1/80’) to be interpreted as
      meaning that a Turkish worker who has been legally
                                                                         —     set aside the remainder of the judgment at first instance
      employed by various employers in maritime shipping
                                                                               and give final judgment on the dispute, annulling the
      forming part of the legitimate labour force of a Member
                                                                               whole of Commission decision No 2388 of 18 August
      State for more than 15 years since 1977 without a work
                                                                               2000;
      permit being required and who has satisfied the require-
      ments of the first indent of Article 6(1) of Decision No 1/
      80 during that time is entitled to a residence permit              —     make an appropriate order as to costs.
      where — in addition to various breaks for reasons of
      illness and involuntary unemployment duly certified by
      the relevant authority — his employment in maritime
      shipping has undergone interruptions of between one
      and seventy days between individual employment relation-           Pleas in law and main arguments
      ships on 17 occasions (totalling approximately 13 months)
      and, by his own admission, the Turkish worker has spent
      the longer breaks with his family in Turkey without any            The appellant claims that the judgment of the Court of First
      involuntary unemployment then being certified? Does the            Instance is vitiated as follows:
      answer depend on whether such breaks are typical of the
      occupation concerned (in this case, typical of maritime            —     failure to make a finding in respect of one of the pleas in
      shipping)?                                                               law;
                                                                         —     breach of the principle of proportionality;
2.    Is entitlement to a residence permit under the third               —     infringement of Article 24 of Regulation (EEC) No 4253/
      indent of Article 6(1) of Decision No 1/80 conditional                   88 and of Commission Decision No 3182/93;
      on the Turkish worker already satisfying the requirements
      of the second indent of Article 6(1) of Decision No 1/80?          —     breach of the rights of the defence.
      Does the answer depend on whether a change of
      employer before the expiry of three years is typical of


title: Case C-150/10: Judgment of the Court (Fourth Chamber) of 21 July 2011 (reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium)) — Bureau d’intervention et de restitution belge (BIRB) v Beneo-Orafti SA (Agriculture — Common organisation of the markets — Sugar — Nature and scope of transitional quotas allocated to an undertaking producing sugar — Possibility for an undertaking receiving restructuring aid for the marketing year 2006/2007 to use the transitional quota allocated to that undertaking — Calculation of the amount to be recovered and of the penalty to be applied in the case of non-compliance with commitments entered into under the restructuring plan — Ne bis in idem principle)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/13

         Judgment of the Court (Fourth Chamber) of 21 July 2011 (reference for a preliminary ruling from the Tribunal de première instance de Bruxelles (Belgium)) — Bureau d’intervention et de restitution belge (BIRB) v Beneo-Orafti SA
   (Case C-150/10) (1)

   (Agriculture - Common organisation of the markets - Sugar - Nature and scope of transitional quotas allocated to an undertaking producing sugar - Possibility for an undertaking receiving restructuring aid for the marketing year 2006/2007 to use the transitional quota allocated to that undertaking - Calculation of the amount to be recovered and of the penalty to be applied in the case of non-compliance with commitments entered into under the restructuring plan - Ne bis in idem principle)
   2011/C 269/20
   Language of the case: French

      Referring court

   Tribunal de première instance de Bruxelles

      Parties to the main proceedings

      Applicant: Bureau d’intervention et de restitution belge (BIRB)

      Defendant: Beneo-Orafti SA

      Re:

   Reference for a preliminary ruling — Tribunal de première instance de Bruxelles — Interpretation of Article 9 of Commission Regulation (EC) No 493/2006 of 27 March 2006 laying down transitional measures within the framework of the reform of the common organisation of the markets in the sugar sector, and amending Regulations (EC) No 1265/2001 and (EC) No 314/2002 (OJ 2006 L 89, p. 11) — Interpretation of Article 3 of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy (OJ 2006 L 58, p. 42) — Interpretation of Articles 26 and 27 of Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Council Regulation (EC) No 320/2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community (OJ 2006 L 176, p. 32) — Nature and scope of the transitional quotas allocated to an undertaking engaged in the production of sugar — Whether the grant of a transitional quota to an undertaking in receipt of restructuring aid for the marketing year 2006/2007 is compatible with the legislation of the European Union — Calculation of the amount to be recovered and of the penalty to be applied in the case of failure to meet commitments entered into under the restructuring plan

      Operative part of the judgment

               1.

               Article 3(1)(b) of Council Regulation (EC) No 320/2006 of 20 February 2006 establishing a temporary scheme for the restructuring of the sugar industry in the Community and amending Regulation (EC) No 1290/2005 on the financing of the common agricultural policy must be interpreted as meaning that the term ‘quota’ in that provision also includes the transitional quotas within the meaning of Article 9 of Commission Regulation (EC) No 493/2006 of 27 March 2006 laying down transitional measures within the framework of the reform of the common organisation of the markets in the sugar sector, and amending Regulations (EC) No 1265/2001 and (EC) No 314/2002.

               2.

               Article 3(1)(b) of Regulation No 320/2006 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, the commitment to renounce the quota for the production of sugar, isoglucose and inulin syrup that has been allocated to an undertaking and assigned by it to one or more of its factories, referred to in that provision, takes effect on the date when, having regard to the information that is communicated to it or that is published in the Official Journal of the European Union, the undertaking that makes that commitment is in a position to know, as a reasonably diligent undertaking, that, in the view of the competent authorities, the conditions for obtaining the restructuring aid set out in Article 5(2) of that regulation have been fulfilled.

               3.

               Articles 26(1) and 27 of Commission Regulation (EC) No 968/2006 of 27 June 2006 laying down detailed rules for the implementation of Regulation No 320/2006 and Article 15 of Council Regulation (EC) No 318/2006 of 20 February 2006 on the common organisation of the markets in the sugar sector must be interpreted as meaning that a production such as that at issue in the main proceedings, on the assumption that it is contrary to the commitment to renounce the quota for the production of sugar, isoglucose and inulin syrup that has been allocated to an undertaking and assigned by it to one or more of its factories, referred to in Article 3(1)(b) of Regulation No 320/2006, may give rise to recovery of the aid, the imposition of a penalty and the collection of the levy on surpluses, as respectively set out in those provisions. With regard to the penalty under Article 27(3) of Regulation No 968/2006, it is for the referring court to assess whether, having regard to all the circumstances of the case, the non-compliance can be regarded as having been committed intentionally or as a result of grave negligence. The principles of ne bis in idem, proportionality and non-discrimination must be interpreted as not precluding the cumulative application of those measures.

               4.

               Article 26(1) of Regulation No 968/2006 must be interpreted as meaning that, in circumstances such as those at issue in the main proceedings, if an undertaking has complied with its commitment partially to dismantle the production facilities of the factories concerned but not its commitment to renounce the quota for the production of sugar, isoglucose and inulin syrup that has been allocated to it and assigned by it to one or more of its factories, referred to in Article 3(1)(b) of Regulation No 320/2006, the amount of the aid to be recovered is equal to the part of the aid corresponding to the commitment that has not been complied with. That part of the aid must be determined on the basis of the amounts laid down in Article 3(5) of Regulation No 320/2006.

      (1)  OJ C 161, 19.6.2010.


title: Removal from the register of Joined Cases T-207/93 and T-224/93

text:
11.4.98              EN                 Official Journal of the European Communities                                C 113/21
the Basic Regulation, in particular with respect to the            Instance of the European Communities has ordered the
potential impact of definitive anti-dumping measures on            removal from the register of Case T-78/94: Hermann
importers/retailers and consumers. The procedure within            Cordes v. Council of the European Union and
the meaning of Article 21 requires an active analysis of           Commission of the European Communities.
the Community interest issues, at least to the extent that
these are raised by interested parties. Once legitimate            (1) OJ C 103, 11.4.1994.
points are raised in this context, the Commission is bound
either to agree and make recommendations accordingly to
the Council for its definitive measures, or to provide a
reasonable explanation of its decision to the contrary.
Neither of these steps was taken in this case, contrary to
the legitimate expectations of the applicants.                           Removal from the register of Case T-192/95 (1)
Finally, the applicants submit that the Council's decision                                 (98/C 113/52)
to impose definitive anti-dumping duties on top of the
existing quantitative restrictions on imports of the product                      (Language of the case: English)
concerned from two (India and Pakistan) of the three
exporting countries is contrary to the principle of                By order of 5 February 1998 the President of the Third
proportionality.                                                   Chamber, Extended Composition, of the Court of First
                                                                   Instance of the European Communities has ordered the
                                                                   removal from the register of Case T-192/95: Hitachi Ltd,
                                                                   Matsushita Electronics Corporation, Mitsubishi Electric
                                                                   Corporation, NEC Corporation, Oki Electric Industry Co.
                                                                   Ltd, Sanyo Electric Co. Ltd, Sharp Corporation and
      Removal from the register of Case T-191/93 (1)               Toshiba Corporation v. Commission of the European
                        (98/C 113/49)                              Communities.
               (Language of the case: German)                      (1) OJ C 351, 30.12.1995.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First
Instance of the European Communities has ordered the
removal from the register of Case T-191/93: Albrecht Graf
Brockdorff-Ahlefeldt v. Council of the European Union.                   Removal from the register of Case T-215/95 (1)
                                                                                (98/C 113/53)
(1) OJ C 270, 19.10.1992.
                                                                                (Language of the case: Italian)
                                                                   By order of 2 February 1998 the President of the Fourth
                                                                   Chamber, Extended Composition, of the Court of First
Removal from the register of Joined Cases T-207/93 and             Instance of the European Communities has ordered the
                         T-224/93 (1)                              removal from the register of Case T-215/95: Telecom Italia
                        (98/C 113/50)                              SpA v. Commission of the European Communities.
               (Language of the case: German)                      (1) OJ C 46, 17.2.1996.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First
Instance of the European Communities has ordered the
removal from the register of Joined Cases T-207/93 and
T-224/93: Hans-Erdmann von Flotow and Gunda                              Removal from the register of Case T-197/96 (1)
Bergmann v. Commission of the European Communities.
                                                                                (98/C 113/54)
(1) OJ C 270, 19.10.1992.
                                                                                (Language of the case: Italian)
                                                                   By order of 30 January 1998 the President of the Fourth
                                                                   Chamber of the Court of First Instance of the European
                                                                   Communities has ordered the removal from the register of
       Removal from the register of Case T-78/94 (1)               Case T-197/96: Consorzio del Formaggio Parmigiano
                                                                   Reggiano and Latteria Sociale Spadarotta soc. coop. arl v.
                        (98/C 113/51)
                                                                   Commission of the European Communities.
               (Language of the case: German)
                                                                   (1) OJ C 54, 22.2.1997.
By order of 30 January 1998 the President of the First
Chamber, Extended Composition, of the Court of First


title: Case C-438/15: Request for a preliminary ruling from the Tribunale di Taranto (Italy) lodged on 10 August 2015 — Criminal proceedings against Davide Durante

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/13

         Request for a preliminary ruling from the Tribunale di Taranto (Italy) lodged on 10 August 2015 — Criminal proceedings against Davide Durante
   (Case C-438/15)
   (2015/C 381/16)
   Language of the case: Italian

      Referring court

   Tribunale di Taranto

      Party to the main proceedings

   Davide Durante

      Question referred

   Must Articles 43, 49 and 56 et seq. TFEU be interpreted as precluding national legislation in the field of betting and gambling which, for the purposes of the launching of a fresh call for tenders for the award of licences as provided for by Article [10](9 g) of Law No 44 of 26 April 2012, regards as grounds for exclusion from the tendering procedure a tenderer’s failure to demonstrate economic and financial capacity, without providing, for the purpose of that demonstration, when references are supplied by one bank only, for appropriate criteria other than the stipulated requirement of two different references given by two different banking institutions?


title: Case C-10/00: Action brought on 13 January 2000 by the Commission of the European Communities against the Italian Republic

text:
C 79/16                EN                     Official Journal of the European Communities                                      18.3.2000
Reference for a preliminary ruling by the Bundespa-                          Regulation No 259/93 of waste to be transported for an
tentgericht by order of that court of 20 October 1999 in                     intended recovery operation under Annex II B to Directive
            the case of Merz & Krell GmbH & Co                               75/442/EEC (2) and, in the event that the classification is
                                                                             incorrect, prohibit the transport of such waste?
                         (Case C-517/99)
                                                                         2. In the reasoned objection to the transport of waste on the
                          (2000/C 79/29)                                     ground that the planned transport is not for purposes of
                                                                             recovery but for disposal, contrary to the classification
Reference has been made to the Court of Justice of the                       indicated by the notifier in the accompanying notification,
European Communities by order of the Bundespatentgericht                     may the competent authority at the place of dispatch rely
(Federal Patents Court) of 20 October 1999, received at the                  on the matters constituting grounds for an objection under
Court Registry on 31 December 1999, for a preliminary ruling                 the fifth indent of Article 7(4)(a) of Regulation No 259/93?
in the case of Merz & Krell GmbH & Co. on the following
question:                                                                3. Should the reply to Question 2 be in the negative:
Is Article 3(1)(d) of the First Council Directive of 21 December             On what provision of Regulation No 259/93 or other
1988 (1) to approximate the laws of the Member States relating               provisions of Community law may the competent auth-
to trade marks (89/104/EEC) to be interpreted restrictively,                 ority at the place of dispatch rely in refusing to authorise a
contrary to the wording thereof, as meaning that only signs or               transport of waste, where contrary to the information
indications which directly describe goods and services for                   given by the notifier, the transport is for purposes not of
which registration has specifically been applied, or the essential           recovery but of disposal?
characteristics or features thereof, are affected by the bar to
registration? Or is the provision to be construed as meaning
that, in addition to ‘free signs’ and generic names, signs or            4. Is any delivery of waste to a mine to be regarded,
indications which have become customary in the current                       irrespective of the actual circumstances of such delivery, as
language or in the bona fide and established practices of the                a disposal of waste within the meaning of Regulation
trade in the relevant or a similar sector as advertising slogans,            No 259/93 in conjunction with Annex II A (D 12) to
indications of quality or incitements to purchase etc., without              Directive 75/442/EEC?
directly describing the specific characteristics of the goods or
services for which registration has been applied, may likewise           5. If Question 4 is answered in the negative:
not be registered?
                                                                             According to what criteria is classification under the
(1) OJ 1989 L 40, p.1.                                                       operations listed in Annex II to Directive 75/442 to be
                                                                             carried out?
                                                                         (1) OJ 1993 L 30, p. 1.
                                                                         (2) OJ 1975 L 194, p. 39.
Reference for a preliminary ruling by the Verwaltungsge-
richtshof by order of that court of 16 December 1999 in
the case of A.S.A Abfall Service AG against Federal
     Minister for the Environment, Youth and Family
                           (Case C-6/00)
                          (2000/C 79/30)                                 Action brought on 13 January 2000 by the Commission
                                                                         of the European Communities against the Italian Republic
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgerichtsh-
of (Supreme Administrative Court) of 16 December 1999,                                            (Case C-10/00)
received at the Court Registry on 11 January 2000, for a
preliminary ruling in the case of A.S.A Abfall Service AG                                         (2000/C 79/31)
against Federal Minister for the Environment, Youth and
Family on the following questions:
                                                                         An action against the Italian Republic was brought before the
1. Is the competent authority at the place of dispatch under             Court of Justice of the European Communities on 13 January
    Council Regulation No 259/93 (1) on supervision and                  2000 by the Commission of the European Communities,
    control of shipments of waste within, into and out of the            represented by Enrico Traversa and Hans Hartvig, Legal
    European Community (OJ 1993 L 30, p. 1) competent to                 Advisers, acting as Agents, with an address for service in
    verify the correctness of the classification by the notifier as      Luxembourg at the office of Carlos Gómez de la Cruz, of its
    waste for recovery under the fifth indent of Article 6(5) of         Legal Service, Wagner Centre, Kirchberg.
 ---pagebreak--- 18.3.2000             EN                   Official Journal of the European Communities                                           C 79/17
The applicant claims that the Court should:                           Action brought on 18 January 2000 by the Commission
                                                                      of the European Communities against the Italian Republic
(a) Declare that, by failing to make available to the Com-
    mission LIT 29 223 322 226 and by not paying default
    interest on that amount as from 1 January 1996, the Italian                                (Case C-14/00)
    Republic has failed to fulfil its obligations under the
    Community provisions on own resources;
                                                                                (2000/C 79/32)
(b) Order the Italian Republic to pay the costs.
                                                                      An action against the Italian Republic was brought before the
                                                                      Court of Justice of the European Communities on 18 January
Pleas in law and main arguments                                       2000 by the Commission of the European Communities,
                                                                      represented by Gregorio Valero Jordana, of its Legal Service,
The Commission and the Italian Republic have agreed that the          and Giacinto Bisogni, appeal court judge on secondment to
duties relating to the importation into Italy of goods from           the Legal Service, acting as Agents, with an address for service
third countries intended for San Marino during the period             in Luxembourg at the office of Carlos Gómez de la Cruz, of its
running from 1 January 1979 to 30 November 1992 (that is              Legal Service, Wagner Centre, Kirchberg.
to say before the entry into force of the interim commercial
and customs union agreement between the Community and
San Marino of 16 December 1991 (1), did not constitute                The applicant claims that the Court should:
Community own resources in view of San Marino’s sovereign
state status and of the fact that it was not a Member State of
the Community. It was moreover agreed that a specific                 — Declare that, by prohibiting products containing vegetable
distinction was to be drawn between the duties payable to San              fats other than cocoa butter, which are lawfully manufac-
Marino and the duties levied by Italy which constituted                    tured in Member States which permit the use of such
Community own resources and that, in order to protect the                  substances, from being marketed in Italy under the name
Community’s financial interests, such a distinction could not              with which they are marketed in the State of origin
be made unilaterally by Italy without the approval of the                  and requiring that such products be marketed only on
Commission. However, no agreement was reached with regard                  condition that they bear the words ‘chocolate substitute’,
to the method to be employed when determining the duties                   the Italian Republic has failed to fulfil its obligations under
payable to San Marino; Italy has therefore improperly reduced              Article 28 of the Treaty; and
the own resources payable to the Community by carrying out
deductions, without the prior approval of the Commission,
according to a method contested by the Commission.                    — Order the Italian Republic to pay the costs.
According to the Commission, by continuing to make
deductions unilaterally from its payment of own resources
without the approval of the Commission and without                    Pleas in law and main arguments
responding to the Commission’s request to justify such
deductions, thus threatening improperly to reduce the Com-
munity’s own resources, Italy has failed to fulfil its obligations
under the Treaty.                                                     A ministerial circular adopted in 15 March 1996 lays down
                                                                      that chocolate products originating in the United Kingdom,
                                                                      Ireland and Denmark containing vegetable fats other than
The Commission accordingly asked the Italian Government to            cocoa butter may be marketed in Italy only under the name
make available to the Commission LIT 29 223 322 226 and               ‘chocolate substitute’.
to pay default interest thereon as from 1 January 1996, the
date from which such interest was due in view of the failure to
pay the principal sum, and until that sum is made available.
                                                                      The chocolate products in question are products which are
                                                                      lawfully manufactured in Member States which permit the
Since the abovementioned amount has not been made available           addition of vegetable fats and which comply with the manufac-
to the Commission and since the relevant default interest has         turing requirements laid down in Council Directive
not been paid, the Italian Republic has failed to fulfil its          73/241/EEC of 24 July 1973 on the approximation of the
obligations under the Community provisions relating to own            laws of the Member States relating to cocoa and chocolate,
resources.                                                            products intended for human consumption (1).
(1) OJ 1992 L 359, p. 14.
                                                                      The Italian authorities claim that the national provisions in
                                                                      question do not prevent access to the Italian market for the
                                                                      products concerned but rather provide for a namechange in
                                                                      the interests of consumer protection.


title: Case T-255/17: Action brought on 28 April 2017 — Les Mousquetaires and ITM Entreprises v Commission

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/30

         Action brought on 28 April 2017 — Les Mousquetaires and ITM Entreprises v Commission
   (Case T-255/17)
   (2017/C 231/38)
   Language of the case: French

      Parties

      Applicants: Les Mousquetaires (Paris, France), ITM Entreprises (Paris) (represented by: N. Jalabert-Doury, B. Chemama and K. Mebarek, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Adopt a measure of organisation of the procedure to require the Commission to state the presumptions and produce the indications which it had to justify the object and aim of Decisions AT.40466 — Tute 1 and AT.40467- Tute 2;

               —

               Uphold the plea of illegality of Article 20(4) of Regulation No 1/2003 in that it does not provide for an effective remedy with regard to the conditions for execution of the inspection decisions in accordance with Articles 6(1), 8 and 13 of the ECHR and Articles 7 and 47 of the Charter;

               —

               Annul Decisions AT.40466 — Tute 1 and AT.40467- Tute 2 of 21 February 2017 ordering Les Mousquetaires S.A.S. and all its subsidiaries to submit to an inspection under Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002;

               —

               In the entire alternative, annul Decisions AT.40466 — Tute 1 and AT.40467- Tute 2 adopted in the same terms with regard to ITM Entreprises S.A.S. on 9 February 2017, which were not served on their addressees;

               —

               Annul the decision taken by the Commission to seize and copy the data on communication and storage tools containing data concerning the private life of the users and to reject the applicants’ request for return of the data concerned;

               —

               Order the European Commission to pay all the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of the fundamental rights, of the right to inviolability of the dwelling and the right to effective judicial protection as a result of the lack of effective judicial remedy as regards the conditions of execution of the inspection decisions.

               2.

               Second plea in law, alleging infringement of Article 20(4) of Regulation No 1/2003 and the fundamental rights on the ground that insufficient reasons are stated for the inspection decisions and, as a result, the applicants are deprived of the fundamental guarantee required in that context. In particular, the decisions fail adequately to circumscribe the object and aim of the inspections and fail to state the presumptions and indications gathered by the Commission.

               3.

               Third plea in law, alleging infringement of Articles 20(3) and (4) and 21 of Regulation No 1/2003 and the fundamental rights on the ground that the applicants were deprived of other fundamental guarantees. In particular, the inspection decisions are not limited in time, could be implemented without effective notice and without respecting the right to legal assistance, the right to silence and the applicants’ right to privacy and did not permit the applicants to mount an effective opposition, having regard to the constant reminders of penalties in the case of obstruction.

               4.

               Fourth plea in law, alleging a manifest error of assessment and infringement of the principle of proportionality in the manner in which the Commission decided on the appropriateness, duration and extent of the inspections.

               5.

               Fifth plea in law, alleging an infringement of the fundamental rights committed by the adoption of the decision refusing to ensure suitable protection for certain documents containing personal data in respect of which the applicants had requested the protection of EU law.

               6.

               Sixth plea in law, seeking, in the alternative, the annulment of the inspection decisions dated 9 February 2017 on the basis of the same pleas.


title: Case C-524/09: Reference for a preliminary ruling from the Tribunal administratif de Paris (France) lodged on 12 November 2009 — Ville de Lyon v Caisse des dépôts et consignations

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/29

         Reference for a preliminary ruling from the Tribunal administratif de Paris (France) lodged on 12 November 2009 — Ville de Lyon v Caisse des dépôts et consignations
   (Case C-524/09)
   2010/C 37/36
   Language of the case: French

      Referring court

   Tribunal administratif de Paris

      Parties to the main proceedings

      Applicant: Ville de Lyon

      Defendant: Caisse des dépôts et consignations

      Questions referred

               1.

               Is the supply or refusal to supply the information provided for in point 12 of Annex XVI to Regulation (EC) No 2216/2004 (1) the responsibility of the Central Administrator alone or the responsibility also of the administrator of the national registry?

               2.

               If it is the responsibility of the administrator of the national registry, must that information be considered to be ‘information on emissions into the environment’ within the meaning of Article 4 of Directive 2003/4/EC, (2) against whose supply ‘the confidentiality of commercial or industrial information’ could not be invoked, or is the supply of that information governed by specific rules on confidentiality?

               3.

               In the event that specific rules on confidentiality apply, is that information not to be supplied before a period of five years has elapsed or does that time-limit concern only the five-year allowance allocation period under Directive 2003/87/EC? (3)

               4.

               In the event that that five-year time-limit does apply, does Article 10 of Regulation No 2216/2004 allow a derogation from it and can a refusal to derogate from it be invoked, on the basis of that article, against a local authority requesting the supply of that information in order to negotiate an agreement on public service delegation in respect of urban heating?

      (1)  Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1).

      (2)  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).

      (3)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).


title: Case C-287/05: Judgment of the Court (Grand Chamber) of 11 September 2007 (reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands)) — D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen (Social security for migrant workers — Articles 12 EC, 17 EC, 18 EC and 39 EC — Regulation (EEC) No 1408/71 — Article 4(2a), Article 10a and Annex IIa — Regulation (EEC) No 1612/68 — Article 7(1) — Non-contributory benefits — Netherlands benefit for disabled young people — Non-exportability)

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/5

         Judgment of the Court (Grand Chamber) of 11 September 2007 (reference for a preliminary ruling from the Centrale Raad van Beroep (Netherlands)) — D.P.W. Hendrix v Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen
   (Case C-287/05) (1)

   (Social security for migrant workers - Articles 12 EC, 17 EC, 18 EC and 39 EC - Regulation (EEC) No 1408/71 - Article 4(2a), Article 10a and Annex IIa - Regulation (EEC) No 1612/68 - Article 7(1) - Non-contributory benefits - Netherlands benefit for disabled young people - Non-exportability)
   (2007/C 269/11)
   Language of the case: Dutch
   Referring court
   Centrale Raad van Beroep (Netherlands)
   Parties to the main proceedings

      Applicant: D.P.W. Hendrix

      Defendant: Raad van Bestuur van het Uitvoeringsinstituut Werknemersverzekeringen
   Re:
   Reference for a preliminary ruling — Centrale Raad van Beroep — Interpretation of Articles 4(2a) and 10a of and Annex IIa to Regulation No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English Special Edition 1971(II), p. 416), as amended by Council Regulation (EEC) No 1247/92 of 30 April 1992 (OJ 1992 L 136, p. 1) — Interpretation of Article 7(2) of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (OJ, English Special Edition 1968(II), p. 475) — Interpretation of Articles 12, 18 and 39 EC — Special non-contributory benefits — Coordinating scheme provided for in Article 10a of Regulation No 1408/71 — Scope — Whether or not it includes a benefit for disabled young people referred to in Annex IIa to Regulation No 1408/71 — Recipients resident in the Netherlands
   Operative part of the judgment

               1.

               A benefit such as that provided under the Law on provision of incapacity benefit to disabled young people (Wet arbeidsongeschiktheidsvoorziening jonggehandicapten) of 24 April 1997 must be regarded as a special non-contributory benefit within the meaning of Article 4(2a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Council Regulation (EC) No 1223/98 of 4 June 1998, with the result that only the coordinating provision in Article 10a of that regulation must be applied to persons who are in the situation of the applicant in the main proceedings and that payment of that benefit may validly be reserved to persons who reside on the territory of the Member State which provides the benefit. The fact that the person concerned previously received a benefit for disabled young people which was exportable is of no relevance to the application of those provisions.

               2.

               Article 39 EC and Article 7 of Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community must be interpreted as not precluding national legislation which applies Article 4(2a) and Article 10a of Regulation No 1408/71, as amended and updated by Regulation No 118/97, as amended by Regulation No 1223/98, and provides that a special non-contributory benefit listed in Annex IIa to Regulation No 1408/71 may be granted only to persons who are resident in the national territory. However, implementation of that legislation must not entail an infringement of the rights of a person in a situation such as that of the applicant in the main proceedings which goes beyond what is required to achieve the legitimate objective pursued by the national legislation. It is for the national court, which must, so far as possible, interpret the national legislation in conformity with Community law, to take account, in particular, of the fact that the worker in question has maintained all of his economic and social links to the Member State of origin.

      (1)  OJ C 296, 26.11.2005.


title: Case T-294/11: Action brought on 9 June 2011 — Hellenic Republic v Commission

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/25

         Action brought on 9 June 2011 — Hellenic Republic v Commission
   (Case T-294/11)
   2011/C 238/44
   Language of the case: Greek

      Parties

      Applicant: Hellenic Republic (represented by: I. Khalkias and S. Papaioannou)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               Annul the Commission implementing decision of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic, or alternatively vary it;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   By its action the Hellenic Republic seeks the annulment of the Commission decision of 15 April 2011 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD), notified as C(2011) 2517, published in the official Journal of the European Union (OJ 2011 L 102, p. 33) and numbered 2011/244/EU, in so far as the decision concerns financial corrections to the detriment of the Hellenic Republic, in the areas of (a) olive oil production aid, (b) expenditure on setting up the olive cultivation-GIS, and (c) direct aid (arable crops).
   As regards the correction in the area of olive oil production aid, the applicant maintains, first, that the Commission made an erroneous assessment of the facts since the weaknesses in the way the basic checks to the system are generally carried out are minimal and do not justify a corresponding correction of 10 % and 15 %, particularly when since 1/11/2003 there has been established a fully functioning and reliable olive cultivation geographical information system (Olive cultivation-GIS) in Greece, as the main control tool of the entire system of olive oil production aid, and the cultivation information is checked in detail, and checks are also made on the olive grove production and the entire operation of oil mills.
   The applicant claims, secondly, that: (a) the Commission’s decision has no valid and sufficient legal basis for the increase in the correction because of repeat offending, and the meaning which the Commission gives to that term is incorrect, given that it is clear that there are no recurrent weaknesses, and repeat offending, as assumed by the Commission, is based on a mistaken premise, because an incorrect meaning is given by the Commission to that term, and the consequence is a manifestly erroneous assessment of the allegedly recurrent weaknesses, since, moreover, the main control tool of the system, the Olive cultivation-GIS has been established and (b) the Commission made an erroneous assessment of the facts, since in any event there is no legal basis and no justification for the increase of the correction from 10 % for the period 2003-2004 to 15 % for the period 2004-2005, given that there were numerous improvements and continuous updating of the Olive cultivation-GIS in that period and indeed the control system not only did not deteriorate but substantially improved.
   As regards the corrections in the area of expenditure in establishing the Olive cultivation-GIS, the applicant maintains, first, that there is no valid legal basis for the financial correction to the expenditure which relates to procedures for establishing the Olive cultivation-GIS, since the money which was made available for its development was deducted from aid to which the Greek producers were entitled, and the failure to recognise that expenditure invites an argument of unjustified enrichment of EAGGF and double financial penalty, since, in any event, all the expenditure which took place is ineligible, if it did not exceed the budget as determined by the Commission and the total amount which was deducted from Greek producers, since the critical time for the decision whether particular expenditure is or is not lawful is the time of acceptance of a legal commitment or the time when the expenditure is effected and not the time when the expenditure is declared.
   The applicant secondly claims: (a) breach of the principle of proportionality as regards the expenditure amounting to 2 920 191,03 which ensued from the additional contracts and (b) the erroneous assessment of the facts as regards the expenditure which ensued from the contract 5190/ES/2003.
   In connection with the corrections in the area of direct aid (arable crops), the applicant maintains, first, that: (a) there was no valid legal basis for applying the old guidelines, which laid down fixed percentages for the application of corrections to the new common agricultural policy (CAP), to the new single payment scheme and (b) their application seriously infringes the principle of proportionality.
   The applicant maintains, secondly, that the Commission made an erroneous assessment of the facts: (a) in relation to the alleged weakness of the LPIS-GIS, (b) in relation to the fact that if a comparison is made of information from the LPIS-GIS which was used for the claim year 2007 with the information from the complete and reliable 2009 LPIS-GIS, which the Commission checked by an on-the-spot inspection, it is clear that the differences and deficiencies are minimal and do not exceed 2 % and, accordingly, any correction should not exceed that percentage and (c) in relation to the alleged weaknesses in management checks, cross-checks and on-the-spot checks and their quality and in particular the alleged failure to measure grazing land and the alleged lateness in carrying out on-the-spot checks, since the multiplicity of improvements made in the 2007 claim year should lead the Commission to the conclusion that no correction is necessary.
   Lastly, the applicant claims that there was an erroneous interpretation and application of Article 33 of Regulation 1290/05 (1) in relation to the correction to expenditure on rural development measures.

      (1)  Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy


title: Case C-257/02: Reference for a preliminary ruling by the Oberster Gerichtshof of the Republic of Austria by order of that Court of 25 June 2002 in the case of Stuĳ en de Man B. V. against Republic of Austria

text:
12.10.2002              EN                    Official Journal of the European Communities                                         C 247/3
      (c)   to use health-related, pictorial or stylised represen-       3.     If the answers to questions 1 and 2 are in the affirmative:
            tations of organs of the human body, pictures
                                                                                How, and by reference to what parameters, is the
            of members of the health-care professions or of
            sanatoria or other pictures or illustrations referring              authorised toll for a single journey along the whole
            to health-care activities?                                          motorway to be calculated in each individual case?
                                                                         4.     Only if the answers to questions 1 and 2 are in
2.    Do Directive 79/112/EEC or Articles 28 and 30 EC                          the affirmative and are accompanied, as requested in
      preclude a national provision which, on the placing into                  question 3, by an explanation of the method of calcu-
      circulation of foodstuffs, permits health-related infor-                  lation to be employed:
      mation such as that described in Question (1) to be
      affixed thereto only after prior authorisation by the                     Is the Judgment of the Court of Justice in Case C-21/94
      competent federal minister, whereby a condition of                        Parliament v Council (3), in which it was held that the
      authorisation is that the health-related information is                   effects of Directive 93/89/EEC, which was annulled by
      consistent with protecting the consumer from being                        that judgment, were to be preserved until the Council had
      misled?                                                                   adopted a new directive, to be interpreted as meaning
                                                                                that the effects are to be preserved until the Member
                                                                                States have transposed the new directive or, as the case
( 1) OJ L 33, p. 1.                                                             may be, until the time-limit for transposition has expired?
                                                                         5.     Only if the answer to question 4 is in the negative:
                                                                                In respect of the period from 17 June 1999 to 1 July
                                                                                2000, are the Member States under an obligation to have
                                                                                regard to the new directive, that is to say, does it have
                                                                                advance effects which must be observed?
Reference for a preliminary ruling by the Oberster
Gerichtshof of the Republic of Austria by order of that                  (1 ) OJ L 279 [1993], p. 32.
Court of 25 June 2002 in the case of Stuij en de Man B. V.               (2 ) OJ L 187 [1999], p. 42.
                                                                         (3 ) ECR I-1827 [1995].
                    against Republic of Austria
                         (Case C-257/02)
                         (2002/C 247/05)
                                                                         Reference for a preliminary ruling by the Rheinland-Pfalz
                                                                         Oberverwaltungsgericht by order of that Court of 3 July
                                                                         2002 in the case of EU-WOOD-Trading GmbH against
Reference has been made to the Court of Justice of the                   Sonderabfall-Management-Gesellschaft Rheinland-Pfalz
European Communities by order of the Oberster Gerichtshof                                               mbH
(Supreme Court) of the Republic of Austria of 25 June 2002,
received at the Court Registry on 15 July 2002, for a                                              (Case C-277/02)
preliminary ruling in the case of Stuij en de Man B. V. against
Republic of Austria on the following questions:                                                    (2002/C 247/06)
1.    Are Article 7(b) and (h) of Directive 93/89/EEC ( 1) and
      Article 7(4) and (9) of Directive 1999/62/EC ( 2) intended         Reference has been made to the Court of Justice of the
      to confer on all transport undertakings the right, in return       European Communities by order of the Rheinland-Pfalz Ober-
      for payment of a road user charge which complies with              verwaltungsgericht (Rhineland-Palatinate Higher Administrat-
      those directives and is thus reasonable, to conduct                ive Court) of 3 July 2002, received at the Court Registry on
      journeys on stretches of motorway for which a toll is              29 July 2002, for a preliminary ruling in the case of
      levied on vehicles with more than three axles used for the         EU-WOOD-Trading GmbH against Sonderabfall-Management-
      commercial carriage of goods?                                      Gesellschaft Rheinland-Pfalz mbH on the following questions:
2.    If the answer to question 1 is in the affirmative:                 1.     Under the first indent of Article 7(4)(a) of Council
                                                                                Regulation (EEC) No 259/93 of 1 February 1993 on the
      Do Article 7(b) and (h) of Directive 93/89/EEC and                        supervision and control of shipments of waste within,
      Article 7(4) and (9) of Directive 1999/62/EC have direct                  into and out of the European Community (OJ 1993 L 30,
      effect according to the case-law of the Court of Justice,                 p. 1), can an objection to the shipment of waste for
      such that, if the directives have not been transposed, or                 recovery be raised on the ground that the planned
      have been transposed incorrectly, into Austrian law they                  recovery contravenes the requirement arising from the
      may be relied on in calculating a toll that complies with                 first paragraph of Article 4 of Council Directive 75/442/
      the directives for vehicles with more than three axles used               EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 74) for
      for the commercial carriage of goods along the whole of                   waste to be recovered in a manner which is compatible
      the Austrian Brenner motorway?                                            with health and environmental imperatives?


title: Case C-642/11: Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Stroy trans EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite (Taxation — VAT — Directive 2006/112/EC — Principle of fiscal neutrality — Right of deduction — Refusal — Article 203 — Entry of the VAT on the invoice — Chargeability — Existence of a taxable transaction — Identical determination in respect of the issuer of the invoice and its recipient — Necessity)

text:
               23.3.2013

               EN

               Official Journal of the European Union

               C 86/5

         Judgment of the Court (Third Chamber) of 31 January 2013 (request for a preliminary ruling from the Administrativen sad Varna — Bulgaria) — Stroy trans EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-642/11) (1)

   (Taxation - VAT - Directive 2006/112/EC - Principle of fiscal neutrality - Right of deduction - Refusal - Article 203 - Entry of the VAT on the invoice - Chargeability - Existence of a taxable transaction - Identical determination in respect of the issuer of the invoice and its recipient - Necessity)
   2013/C 86/08
   Language of the case: Bulgarian

      Referring court

   Administrativen sad Varna

      Parties to the main proceedings

      Claimant: Stroy trans EOOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Re:

   Request for a preliminary ruling — Administrativen sad Varna — Interpretation of Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Right to deduct input VAT — Tax payable owing to its being entered on the invoice despite the absence of supply or payment of the subject-matter of the invoice — Proof of actual supply of goods — No adjustment of the tax in the revised assessment relating to the taxable person’s direct supplier

      Operative part of the judgment

               1.

               Article 203 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as meaning that:

                           —

                           the value added tax entered by a person on an invoice is payable by him regardless of whether a taxable transaction actually exists;

                           —

                           it cannot be inferred from the mere fact that the tax authorities did not correct, in a tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter that those authorities have acknowledged that the invoice corresponded to an actual taxable transaction.

               2.

               The principles of fiscal neutrality, proportionality and the protection of legitimate expectations must be interpreted as not precluding the recipient of an invoice from being refused the right to deduct input value added tax because there is no actual taxable transaction even though, in the tax adjustment notice addressed to the issuer of that invoice, the value added tax declared by the latter was not adjusted. However, if, in the light of fraud or irregularities, committed by the issuer of the invoice or upstream of the transaction relied upon as the basis for the right of deduction, that transaction is considered not to have been actually carried out, it must be established, on the basis of objective factors and without requiring of the recipient of the invoice checks which are not his responsibility, that he knew or should have known that that transaction was connected with value added tax fraud, a matter which it is for the referring court to determine.

      (1)  OJ C 80, 17.3.2012.


title: Case T-464/04: Judgment of the Court of First Instance of 13 July 2006 — IMPALA v Commission (Competition — Regulation (EEC) No 4064/89 — Decision declaring a concentration compatible with the common market — Markets for recorded music and on-line music — Existence of a collective dominant position — Risk of creation of a collective dominant position — Conditions — Transparency of the market — Deterrence — Statement of reasons — Manifest error of assessment)

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/39

         Judgment of the Court of First Instance of 13 July 2006 — IMPALA v Commission
   (Case T-464/04) (1)

   (Competition - Regulation (EEC) No 4064/89 - Decision declaring a concentration compatible with the common market - Markets for recorded music and on-line music - Existence of a collective dominant position - Risk of creation of a collective dominant position - Conditions - Transparency of the market - Deterrence - Statement of reasons - Manifest error of assessment)
   (2006/C 224/85)
   Language of the case: English
   Parties

      Applicants: Independent Music Publishers and Labels Association (Impala, international association) (Brussels, Belgium) (represented by: S. Crosby and J. Golding, Solicitors, and I. Wekstein-Steg, lawyer)

      Defendant: Commission of the European Communities (represented by: A. Whelan and K Mojzesowicz, Agents)

      Interveners: Bertelsmann AG (Gütersloh, Germany) (represented by: J. Boyce, Solicitor, P. Chappatte and D. Loukas, lawyers), Sony BMG Music Entertainment BV (Vianen, Netherlands) and Sony Corporation of America (SCA) (New York, United States) (represented by: N. Levy, Barrister, R. Snelders and T. Graf, lawyers)
   Re:
   Annulment of Commission Decision C(2004) 2815 of 19 July 2004 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case No COMP/M.3333 — Sony/BMG)
   Operative part of the judgment
   The Court:

               1.

               Annuls Commission Decision C(2004) 2815 of 19 July 2004 declaring a concentration to be compatible with the common market and the functioning of the EEA Agreement (Case No COMP/M.3333 — Sony/BMG);

               2.

               Orders the Commission to bear its own costs and to pay three quarters of those incurred by the applicant;

               3.

               Orders the applicant to bear one quarter of its costs;

               4.

               Orders the interveners to bear their own costs.

      (1)  OJ C 6 of 8.1.2005


title: Action brought on 25 September 1996 by the Commission of the European Communities against the Kingdom of Belgium (Case C-313/96)

text:
23 . 11 . 96              EN                   Official Journal of the European Communities                                 No C 354/ 17
        Republic has in any event failed to fulfil its obligations        Reference for a preliminary ruling by the 0stre Landsret by
        under the said Directive;                                         a decision of that court of 4 September 1996 in the case of
                                                                             Brinkmann Tabakfabriken GmbH v. Skatteministeriet
— order the French Republic to pay the costs .                                                     ( Case C-3 19/96 )
                                                                                ( 96/C 354/34 )
Pleas in law and main arguments adduced in support:
The pleas in law and main arguments are the same as in Case               Reference has been made to the Court of Justice of the
C-3 1 1 /96 ( 2 ); the time-limit laid down in Article 34 of              European Communities by a decision of the 0stre Landsret
Directive 93/36/EEC expired on 14 June 1994 .                             [Eastern Regional Court] of 4 September 1996 , which was
                                                                          received at the Court Registry on 1 October 1996 , for a
(') OJ No L 199 , 9 . 8 . 1993 , p . 1 .                                  preliminary ruling in the case of Brinkmann Tabakfabriken
( 2 ) See Case C-3 11 /96 above .                                         GmbH against Skatteministeriet ( Ministry of Fiscal Affairs )
                                                                          on the following questions :
                                                                          1.   Should the definitions in the Council 's second Directive
                                                                               79/32/EEC of 18 December 1978 on taxes other than
                                                                               turnover taxes which affect the consumption of
Action brought on 25 September 1996 by the Commission                          manufactured tobacco ('), in the version in force on
of the European Communities against the Kingdom of                             14 May 1990 , be interpreted to the effect that a product
                                  Belgium                                      with the following characteristics should be classified as
                            ( Case C-3 13/96 )                                 cigarettes or as smoking tobacco :
                              ( 96/C 354/33
                                                                               — there is a packet containing 25 g of fine-cut smoking
                                                                                tobacco divided up into 30 rolls of tobacco,
An action against the Kingdom of Belgium was brought                                industrially manufactured , each roll being of the
before the Court of Justice of the European Communities on                          same size, consistency and uniformity;
25 September 1996 by the Commission of the European
Communities, represented by Henrik van Lier, Legal                             — each roll of tobacco is 68,6 mm long and consists of
Adviser, and Jean-Francis Pasquier, a national civil servant                        approximately 833 mg of fine-cut smoking tobacco
on secondment to the Legal Service pursuant to the scheme                           wrapped in cellulose , and pressed out into a thin
for the secondment of national experts, acting as Agents ,                          block;
with an address for service in Luxembourg at the office of
 Carlos Gomez de la Cruz, Wagner Centre, Kirchberg.                            — the wrapping is porous, and the roll of tobacco
                                                                                cannot be smoked as it is but must be inserted into a
The Commission of the European Communities claims that                              cigarette-paper tube or wrapped in ordinary
 the Court should :                                                                 cigarette paper, which in both cases can be done
                                                                                without the use of implements ?
— declare that, by failing to adopt the laws, regulations and
        administrative measures ( with the exception of those                  If the answer to Question 1 is that the product should be
        applicable to mobile gas cylinders containing butane,                  classified as smoking tobacco, the Court is asked to
        propane or liquid petroleum gas ) necessary in order to                 reply to the following questions :
        comply with Commission Directive 93/21 /EEC of
        27 April 1 993 ( 1 ) adapting to technical progress for the       2 . Under Community law is an undertaking entitled to
        18th time Council Directive 67/548/EEC (2 ) on the                     compensation for every loss suffered by it as a
        approximation of the laws , regulations and                             consequence of a Member State's infringement of
        administrative provisions relating to the classification,               Community law, consisting in the fact that an authority
        packaging and labelling of dangerous substances, and by                 responsible for the final administrative decision as to
        failing in any event to communicate such measures, the                  which tax group a tobacco product should fall under has
        Kingdom of Belgium has failed to fulfil its obligations                 reached a decision which conflicts with Article 3 ( 1 ) of
        under that directive;                                                   Directive 79/32/EEC and, if so , what are the conditions
                                                                                governing such liability ?
 — order the Kingdom of Belgium to pay the costs .
                                                                           3 . ( a ) Are the definitions of manufactured tobacco
  Pleas in law and main arguments adduced in support:                                 products in Directive 79/32/EEC properly
                                                                                implemented in a Member State if the Minister for
  The pleas in law and main arguments are the same as in Case                         Fiscal Affairs is, by law, empowered to lay down
  C 311 /96 ( 3 ); the time-limit laid down in Article 2 of                           provisions concerning the definitions of tobacco
  Directive 93/21 /EEC expired on 1 July 1994 .                                       products in compliance with the provisions laid
                                                                                down by the European Communities, where no
  (') OJ No L 110 , 4 . 5 . 1993 , p . 20 .                                           legal provisions have been adopted pursuant to the
  ( 2 ) OJ, English Special Edition 1967, p. 234 .                                    Law .
  ( 3 ) See Case C-311 /96 above .
                                                                                If Question 3 ( a ) is answered in the negative , the Court
                                                                                of Justice is asked to reply to the following question :


title: Case T-647/14: Judgment of the General Court of 3 December 2015 — Infusion Brands v OHIM (DUALSAW) (Community trade mark — Application for the Community figurative mark DUALSAW — Absolute grounds for refusal — Partial refusal of registration — Descriptive character — Lack of distinctive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               25.1.2016

               EN

               Official Journal of the European Union

               C 27/51

         Judgment of the General Court of 3 December 2015 — Infusion Brands v OHIM (DUALSAW)
   (Case T-647/14) (1)

   ((Community trade mark - Application for the Community figurative mark DUALSAW - Absolute grounds for refusal - Partial refusal of registration - Descriptive character - Lack of distinctive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2016/C 027/64)
   Language of the case: English

      Parties

      Applicant: Infusion Brands, Inc. (Myerlake Circle Clearwater, Florida, United States) (represented by: K. Piepenbrink, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by V. Melgar, and subsequently by H. O’Neill and M. Rajh, acting as Agents)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 1 July 2014 (Case R 397/2014-4), concerning an application for registration of the figurative sign DUALSAW as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Infusion Brands, Inc. to pay the costs.

      (1)  OJ C 380, 27.10.2014.


title: Case T-502/12: Judgment of the General Court of 9 April 2014  — Ferring v OHIM — Tillotts Pharma (OCTASA) (Community trade mark — Opposition proceedings — Application for Community word mark OCTASA — Earlier national, Benelux and international word marks PENTASA and OCTOSTIM — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/40

         Judgment of the General Court of 9 April 2014 — Ferring v OHIM — Tillotts Pharma (OCTASA)
   (Case T-502/12) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark OCTASA - Earlier national, Benelux and international word marks PENTASA and OCTOSTIM - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   2014/C 175/53
   Language of the case: English

      Parties

      Applicant: Ferring BV (Haarlem, Netherlands) (represented initially by I. Fowler, Solicitor, A. Renck and J. Fuhrmann, lawyers, and subsequently by I. Fowler, A. Renck and D. Slopek, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Tillotts Pharma AG (Ziefen, Switzerland) (represented by: T. Alkin, Barrister)

      Re:

   Action against the decision of the Fourth Board of Appeal of OHIM of 6 September 2012 (Case R 1216/2011-4), concerning opposition proceedings between Ferring BV and Tillotts Pharma AG.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 6 September 2012 (Case R 1216/2011-4);

               2.

               Orders OHIM to bear its own costs and to pay half of the costs incurred by Ferring BV;

               3.

               Orders Tillotts Pharma AG to bear its own costs and to pay half of the costs incurred by Ferring.

      (1)  OJ C 26, 26. 1. 2013.


title: Judgment of the Court of 11 March 2003 in Case C-186/01 (Reference for a preliminary ruling from the Verwaltungsgericht Stuttgart): Alexander Dory v Federal Republic of Germany (Inapplicability of Community law to compulsory military service — Equal treatment of men and women — Article 2 of Directive 76/207/EEC — Compulsory military service in Germany limited to men only — Directive not applicable)

text:
C 112/4                    EN                            Official Journal of the European Union                                             10.5.2003
      make-up or structure of such goods, or for goods or services               2.    Orders the Federal Republic of Germany to pay the costs.
      directly connected with the goods previously sold and intended
      to meet the needs of customers of those goods.
                                                                                (1 ) OJ C 161 of 2.6.2001.
2.    It is for the national court to draw the consequences for the
      resolution of the dispute before it of the interpretation of the
      Community law concept of ‘genuine use’ of the trade mark given
      in the reply to the first question referred for a preliminary ruling.
( 1) OJ C 95 of 24.3.2001.
                                                                                JUDGMENT OF THE COURT
                                                                                of 11 March 2003
                                                                                in Case C-186/01 (Reference for a preliminary ruling from
                    JUDGMENT OF THE COURT                                        the Verwaltungsgericht Stuttgart): Alexander Dory v
                                                                                Federal Republic of Germany (1)
                            (Sixth Chamber)
                                                                                (Inapplicability of Community law to compulsory military
                            of 20 March 2003                                     service — Equal treatment of men and women — Article 2
                                                                                of Directive 76/207/EEC — Compulsory military service in
in Case C-135/01: Commission of the European Communi-                               Germany limited to men only — Directive not applicable)
             ties v Federal Republic of Germany (1)
                                                                                (2003/C 112/07)
(Failure of a Member State to fulfil obligations — Directive
98/56/EC — Marketing of propagating material of orna-
                                                                                (Language of the case: German)
mental plants — Failure to transpose within the prescribed
             period — Difficulties of interpretation)
                                                                                (Provisional translation; the definitive translation will be published
                             (2003/C 112/06)                                                        in the European Court Reports)
                     (Language of the case: German)
                                                                                In Case C-186/01: Reference to the Court under Article 234
(Provisional translation; the definitive translation will be published           EC by the Verwaltungsgericht Stuttgart (Germany) for a
                      in the European Court Reports)                             preliminary ruling in the proceedings pending before that
                                                                                court between Alexander Dory and Federal Republic of
                                                                                Germany, on the interpretation of Article 2 of Council
                                                                                Directive 76/207/EEC of 9 February 1976 on the implemen-
In Case C-135/01, Commission of the European Communities                         tation of the principle of equal treatment for men and women
(Agent: G. Braun) v Federal Republic of Germany (Agents:                         as regards access to employment, vocational training and
W.-D. Plessing and B. Muttelsee-Schön): Application for a                        promotion, and working conditions (OJ 1976 L 39, p. 40),
declaration that, by failing within the prescribed period to                     and, more generally, on the compatibility with Community
adopt all the laws, regulations and administrative measures                      law of the limitation of compulsory military service in
necessary in order to transpose into national law Council                        Germany to men, the Court, composed of: G.C. Rodríguez
Directive 98/56/EC of 20 July 1998 on the marketing of                           Iglesias, President, J.-P. Puissochet (Rapporteur), M. Wathelet,
propagating material of ornamental plants (OJ 1998 L 226,                        R. Schintgen and C.W.A. Timmermans (Presidents of Cham-
p. 16), the Federal Republic of Germany has failed to fulfil its                 bers), C. Gulmann, D.A.O. Edward, P. Jann, V. Skouris,
obligations under the EC Treaty and that directive, the Court                    F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
(Sixth Chamber), composed of: J.-P. Puissochet, President of                     Judges; C. Stix-Hackl, Advocate General; H.A. Rühl, Principal
the Chamber, C. Gulmann and V. Skouris (Rapporteur),                             Administrator, for the Registrar, has given a judgment on
F. Macken and J.N. Cunha Rodrigues, Judges; L.A. Geelhoed,                       11 March 2003, in which it has ruled:
Advocate General; R. Grass, Registrar, has given a judgment
on 20 March 2003, in which it has ruled:
                                                                                Community law does not preclude compulsory military service being
1.    Declares that, by failing within the prescribed period to adopt            reserved to men.
      all the laws, regulations and administrative measures necessary
      to transpose into national law Council Directive 98/56/EC of
                                                                                (1 ) OJ C 200 of 14.7.2001.
      20 July 1998 on the marketing of propagating material of
      ornamental plants, the Federal Republic of Germany has failed
      to fulfil its obligations under that directive;


title: Case T-117/02: Action brought on 15 April 2002 by Grupo El Prado-Cervera, S.L. against Office for Harmonisation in the Internal Market

text:
C 156/34               EN                    Official Journal of the European Communities                                          29.6.2002
The applicant claims that the Court should:                             Finally, the applicant argues that it cannot be accused of
                                                                        deception and that it has not acted with manifest negligence.
—     annul Decision REM 06/01 of 14 January 2002 and allow
      a rebate of the anti-dumping duties imposed to SFT
      Gondrand Frères.                                                  (1) Council Regulation (EC) No 3319/94 of 22 December 1994
                                                                            imposing a definitive anti-dumping duty on imports of urea
                                                                            ammonium nitrate solution originating in Bulgaria and Poland,
                                                                            exported by companies not exempted from the duty, and col-
                                                                            lecting definitively the provisional duty imposed (OJ 1994 L 350,
                                                                            p. 20).
Pleas in law and main arguments
The applicant is an authorised customs agent. In 1997 it
released for circulation three cargo loads of urea ammonium             Action brought on 15 April 2002 by Grupo El Prado-
nitrate solution from Poland. When making the customs                   Cervera, S.L. against Office for Harmonisation in the
declaration the applicant applied for an exemption from anti-                                      Internal Market
dumping duty which applies to imports of that product from
Poland. Following checks, the French customs authorities took
the view that anti-dumping duty was due and demanded                                               (Case T-117/02)
payment of the customs duty from the applicant.
                                                                                (2002/C 156/64)
                                                                                (Language of the case: Spanish)
The applicant then requested a rebate of the anti-dumping
duty and the corresponding VAT. That request was sent by the
French authorities to the Commission, which refused a rebate
of the anti-dumping duties. The applicant is challenging that           An action against the Office for Harmonisation in the Internal
decision in this case.                                                  Market was brought before the Court of First Instance of the
                                                                        European Communities on 15 April 2002 by Grupo El Prado-
                                                                        Cervera, S.L., whose registered office is at Valencia (Spain),
                                                                        represented by Patricia Koch Moreno.
The applicant claims that anti-dumping duties are not payable,
as a result of EC Regulation No 3319/94 (1). The applicant              The applicant claims that the Court should:
states that the goods were invoiced directly by the Polish
company, Zaklady Azotowe Pulawy, to a French company,
Evertrade. The price of the goods was, furthermore, higher              —     declare the Decision of 12 February 2002 of the First
than the minimum import price. In those circumstances the                     Board of Appeal of the OHIM rejecting the opposition
applicant claims that to subject the contested imports to anti-               filed against Community trade mark application No
dumping duties is unjustified.                                                1021229, CHUFAFIT, in Classes 29 and 31 incompatible
                                                                              with Article 8(1)(b) of Regulation (EC) No 40/94 on the
                                                                              Community Trade Mark and annul that decision;
                                                                        —     declare that there is a likelihood of confusion between
The applicant also claims that it was justifiable for the duties              Community trade mark application No 1021229, CHU-
to be subject to a rebate in this case in the light of one                    FAFIT, in classes 29 and 31, and Spanish trade mark
particular factor. According to the applicant, the idea is                    No 1778419, CHUFI, registered in respect of goods in
to prevent dumping by means of import routes involving                        Class 29, and Spanish trade mark No 2063328, CHUFI,
intermediate companies in third countries. That danger has                    registered in respect of goods in Class 31;
been averted here, since the first buyer from the Polish exporter
was a French company. Furthermore, the regulation in question           —     refuse Community trade mark application No 1021229,
poses difficulties of interpretation. The applicant claims that               CHUFAFIT, in Classes 29 and 31; and, finally,
the French authorities interpreted it in the same way as the
applicant. It also adds that its omission is a purely formal one
and has not had any real effect on the proper functioning of            —     order the defendant and, if appropriate, the intervener to
the customs system.                                                           pay the costs of the proceedings.
 ---pagebreak--- 29.6.2002              EN                    Official Journal of the European Communities                                       C 156/35
Pleas in law and main arguments                                         The applicant claims that the Court should:
Person applying to regis-     D.J. Debuschewits                         —     partially annul Decision R 368/2000-2 of the Second
ter the Community trade                                                       Board of Appeal of 17 January 2002 to the extent that
mark:                                                                         the applicant was ordered to bear its own costs in the
                                                                              opposition and appeal proceedings and that reimburse-
Community trade mark          CHUFAFIT — application for                      ment of the appeal fee was not ordered;
concerned:                    registration No 1021229 —
                              application in respect of goods in
                              Classes 29 and 31.                        —     order the Office to pay the costs.
Proprietor of the trade       The applicant company.
mark or distinctive sign
relied on in the oppo-
sition proceedings:
                                                                        Pleas in law and main arguments
Trade mark or distinc-        Spanish Trade Mark CHUFI, regis-
tive sign relied on in the    tered in respect of goods in
opposition proceedings:       Class 29, and Spanish graphic-            The applicant filed an application for registration of the word
                              denominative mark CHUFI, with             mark ‘VITATASTE’ in respect of goods in Classes 5 and 29 at
                              specific distinction, registered in       the Office for Harmonisation in the Internal Market (appli-
                              respect of goods in Class 31.             cation no 156463). Vitakraft-Werke Wührmann & Sohn
                                                                        opposed that application. The opposition was based on the
Decision of the Oppo-         Appeal against the Opposition             German marks ‘VITAKRAFT’ and ‘VITA’ in respect of goods in
sition Division:                                                        Class 5.
Decision of the Board of      Appeal against the decision of the
Appeal:                       Opposition Division dismissed.
                                                                        As a result of a private settlement with the opposing party, the
Grounds of appeal:            Unlawful        application       of      applicant limited the category of goods by removing some of
                              Article 8(1)(b) of Regulation             the goods claimed in Class 5. The opposing party later
                              (EC) 40/94 on the Community               withdrew its opposition but sought a decision on costs.
                              Trade Mark.
                                                                        The Opposition Division decided that the applicant should
                                                                        bear the costs of the opposition procedure. The Board of
                                                                        Appeal set this decision aside and ordered each of the parties
                                                                        to pay its own costs in respect of the opposition and appeal
                                                                        proceedings.
Action brought on 17 April 2002 by Sunrider Corpor-
ation against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)
                                                                        The applicant is appealing against the decision of the Board of
                                                                        Appeal and claims that Article 81(4) of Council Regulation
                         (Case T-124/02)                                (EC) No 40/94 (1), not Article 81(3), is applicable in the present
                                                                        case. Furthermore, the defendant failed to consider that the
                                                                        requirements of Rule 51 of the implementing regulation (2)
                         (2002/C 156/65)                                were satisfied so that the Board of Appeal should have ordered
                                                                        reimbursement of the appeal fee. Finally, the Board of Appeal
(Language of the case to be determined pursuant to Article 131(2)       failed to comply with its obligation to state reasons.
of the Rules of Procedure — language in which the application was
                        submitted: German)
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                            Community trade mark (OJ 1994 L 11, p. 1)
An action against the Office for Harmonisation in the Internal          (2) Commission Regulation (EC) No 2868/95 of 13 December
Market (Trade Marks and Designs) was brought before the                     1995 implementing Council Regulation (EC) No 40/94 on the
Court of First Instance of the European Communities on                      Community trade mark (OJ 1995 L 303, p. 1)
17 April 2002 by Sunrider Corporation, Torrance (USA),
represented by A. Kockläuner, lawyer. Vitakraft-Werke Wühr-
mann & Sohn, Bremen (Germany), was an additional party to
the proceedings before the Board of Appeal.