title: Case C-256/07: Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 31 May 2007 — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/21

         Reference for a preliminary ruling from the Finanzgericht Düsseldorf (Germany) lodged on 31 May 2007 — Mitsui & Co. Deutschland GmbH v Hauptzollamt Düsseldorf
   (Case C-256/07)
   (2007/C 183/36)
   Language of the case: German
   Referring court
   Finanzgericht Düsseldorf
   Parties to the main proceedings

      Applicant: Mitsui & Co. Deutschland GmbH

      Defendant: Hauptzollamt Düsseldorf
   Questions referred

               1.

               Do payments of the seller/manufacturer to the buyer which, as in the present case, are made in the context of a guarantee agreement and by which the buyer is reimbursed the expenditure on repairs invoiced to him by his customers, reduce the customs value under Article 29(1) and (3)(a) of Council Regulation (EEC) No 2913/92 (1) establishing the Community Customs Code which was declared on the basis of the price agreed between the seller/manufacturer and the buyer?

               2.

               Do the payments referred to in Question 1 of the seller/manufacturer to the buyer for the reimbursement of expenses incurred under a guarantee constitute an adjustment of the transaction value under Article 145(2) of Commission Regulation (EEC) No 2454/93 (2) laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 (3) amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001?

               3.

               Should either of the first two questions be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending Regulation (EEC) No 2454/93 and Regulations (EC) No 2787/2000 and (EC) No 993/2001, to be applied to imports in respect of which the customs declarations were accepted before the entry into force of Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001?

               4.

               Should Question 3 be answered in the affirmative: is Article 145(2) and (3) of Commission Regulation (EEC) No 2454/93 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code, as amended by Commission Regulation (EC) No 444/2002 amending the Regulation implementing the Community Customs Code and Regulations (EC) No 2787/2000 and (EC) No 993/2001, valid?

      (1)  OJ 1992 L 302, p. 1.

      (2)  OJ 1993 L 253, p. 1.

      (3)  OJ 2002 L 68, p. 11.


title: Case T-328/10: Action brought on 10 August 2010 — Fraas v OHIM (Dark grey, light grey, beige and dark red coloured checked pattern)

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/44

      Action brought on 10 August 2010 — Fraas v OHIM (Dark grey, light grey, beige and dark red coloured checked pattern)
      (Case T-328/10)
      ()
      (2010/C 288/85)
      Language in which the application was lodged: German

         Parties

         Applicant: V. Fraas GmbH (Helmbrechts-Wüstenselbitz, Germany) (represented by G. Würtenberger and R. Kunze, lawyers)

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

         Form of order sought

                  —

                  Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 June 2010 in Case R 190/2010-4;

                  —

                  Order the Office for Harmonisation in the Internal Market to pay the costs of the proceedings.

         Pleas in law and main arguments

         Community trade mark concerned: Figurative mark representing a dark grey, light grey, beige and dark red coloured checked pattern, for goods in Classes 18, 24 and 25.

         Decision of the Examiner: Registration was refused.

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

         Pleas in law: Infringement of Article 7(1)(b) in conjunction with Article 7(2) of Regulation (EC) No 207/2009 (1) since the Community trade mark concerned does have distinctive character, and infringement of Articles 75 and 76 of Regulation (EC) No 207/2009 as the Board of Appeal did not address the applicant's extensive factual and legal submissions.

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


title: Case C-550/11: Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria) lodged on 2 November 2011 — ET ‘PIGI — P. Dimova’ — P. Dimova v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/8

         Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria) lodged on 2 November 2011 — ET ‘PIGI — P. Dimova’ — P. Dimova v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-550/11)
   2012/C 13/15
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Varna

      Parties to the main proceedings

      Applicant: ET ‘PIGI — P. Dimova’

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

      Questions referred

               1.

               In which cases is it to be assumed that there is a theft of property duly proved or confirmed within the meaning of Article 185(2) of Directive 2006/112 (1), and is it necessary in that regard that the identity of the perpetrator has been established and that that person has already been finally convicted?

               2.

               Depending on the answer to the first question: does the expression ‘theft of property duly proved or confirmed’ within the meaning of Article 185(2) of Directive 2006/112 cover a situation such as that in the main proceedings, in which a pre-litigation procedure for theft was initiated against person or persons unknown, a fact that is not disputed by the revenue collection department and on the basis of which it has been assumed that there is a shortfall?

               3.

               In the light of Article 185(2) of Directive 2006/112, are national legal provisions such as those laid down in Articles 79(3) and 80(2) of the Law on VAT and a tax practice such as that adopted in the main proceedings permissible, under which the input tax deduction made on the acquisition of goods which are subsequently stolen must be adjusted, if it is assumed that the State has not made use of the power afforded to it to provide expressly for adjustments to the input tax deducted in the case of theft?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Judgment of the Court (Fourth Chamber) of 2 December 2004 in Case C-398/03 (reference for a preliminary ruling from the Helsingin Hallinto-Oikeus): E. Gavrielides Oy (Directive 90/642/EEC — Maximum levels for pesticide residues — Vine leaves)

text:
               22.1.2005

               EN

               Official Journal of the European Union

               C 19/5

      JUDGMENT OF THE COURT

   (Fourth Chamber)
   of 2 December 2004
   in Case C-398/03 (reference for a preliminary ruling from the Helsingin Hallinto-Oikeus): E. Gavrielides Oy (1)

   (Directive 90/642/EEC - Maximum levels for pesticide residues - Vine leaves)
   (2005/C 19/09)
   Language of the case: Finnish
   In Case C-398/03: reference for a preliminary ruling under Article 234 EC from the Helsingin Hallinto-Oikeus (Finland), made by judgment of 22 September 2003, received at the Court on 24 September 2003, in the proceedings brought by E. Gavrielides Oy, – the Court (Fourth Chamber), composed of: K. Lenaerts (Rapporteur), President of the Chamber, J.N. Cunha Rodrigues and K. Schiemann, Judges; J. Kokott, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, has given a judgment on 2 December 2004, in which it has ruled:
   Council Directive 90/642/EEC of 27 November 1990 on the fixing of maximum levels for pesticide residues in and on certain products of plant origin, including fruit and vegetables, as amended by Commission Directive 2000/42/EC of 22 June 2000, is not applicable to vine leaves.

      (1)  OJ C 275 of 15.11.2003.


title: Case C-21/14 P: Appeal brought on 16 January 2014 by European Commission against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 5 November 2013 in Case T-512/09: Rusal Armenal ZAO v Council of the European Union

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/7

         Appeal brought on 16 January 2014 by European Commission against the judgment of the General Court (Second Chamber, Extended Composition) delivered on 5 November 2013 in Case T-512/09: Rusal Armenal ZAO v Council of the European Union
   (Case C-21/14 P)
   2014/C 61/11
   Language of the case: English

      Parties

      Appellant: European Commission (represented by: J. Brakeland, M. França and T. Maxian Rusche, Agents)

      Other parties to the proceedings: Rusal Armenal ZAO, Council of the European Union

      Form of order sought

   The appellant claims that the Court should:

               —

               set aside the judgment of the General Court (Second Chamber, extended composition) of 5 November 2013, notified to the Commission on 6 November 2013, in Case T-512/09 Rusal Armenal ZAO v Council;

               —

               reject the first plea of the Application at first instance as unfounded in law;

               —

               refer the case for the remaining pleas to the General Court for reconsideration;

               —

               reserve the costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

   The Commission maintains that the judgment under appeal should be set aside on the following grounds:

               First, the General Court has ruled ultra petita.

               Second, the General Court has misinterpreted Article 2(7) of Council Regulation (EC) No 384/96 on protection against dumped imports from countries not members of the European Community (1), in the version applicable when the contested Regulation was adopted, and the intention of the Community legislator, in the sense of the Nakajima case-law (2), when adopting that provision.

               Third, the General Court has violated the general principle of Community law of institutional balance.

      (1)  OJ 1996 L 56, p. 1.

      (2)  Case C-69/89 Nakajima v Council [1991] ECR I-2069, paragraphs 28 to 32; restated in Case C-149/96 Portugal v Council [1999] ECR I-8395, paragraph 49; see also Case C-76/00 P Petrotub and Republica v Council [2003] ECR I-79, paragraphs 53 to 56.


title: Case C-329/04: Action brought on 29 July 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
               25.9.2004

               EN

               Official Journal of the European Union

               C 239/7

         Action brought on 29 July 2004 by the Commission of the European Communities against the Federal Republic of Germany
   (Case C-329/04)
   (2004/C 239/13)
   An action against the Federal Republic of Germany was brought before the Court of Justice of the European Communities on 29 July 2004 by the Commission of the European Communities, represented by Denis Martin, of its legal service and Horstpeter Kreppel, Judge of the Arbeitsgericht (Labour Court) seconded to the Commission's legal service as part of an exchange programme with national civil servants, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, by failing to adopt the laws, regulations and administrative provisions necessary fully to comply with Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (1), or to notify the Commission of any such provisions, the Federal Republic of Germany has failed to fulfil its obligations under that directive;

               2.

               order the Federal Republic of Germany to pay the costs of the proceedings.

         Pleas in law and main arguments:
   The period for transposition of Directive 2000/43/EC expired on 19 July 2003.

      (1)  OJ L 180, 19.7.2000, p. 22.


title: Case C-297/07: Reference for a preliminary ruling from the Landgericht Regensburg (Germany) lodged on 21 June 2007 — Staatsanwaltschaft Regensburg v Klaus Bourquain

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/20

         Reference for a preliminary ruling from the Landgericht Regensburg (Germany) lodged on 21 June 2007 — Staatsanwaltschaft Regensburg v Klaus Bourquain
   (Case C-297/07)
   (2007/C 211/37)
   Language of the case: German
   Referring court
   Landgericht Regensburg
   Parties to the main proceedings

      Applicant: Staatsanwaltschaft Regensburg

      Defendant: Klaus Bourquain
   Question referred
   With regard to the interpretation of Article 54 of the Convention implementing the Schengen Agreement of 14 June 1985 between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the gradual abolition of checks at their common borders (1), does the rule prohibiting a person whose trial has been finally disposed of in one contracting party from being prosecuted in another contracting party for the same act apply, where the penalty imposed on him could never be enforced under the laws of the sentencing contracting party?

      (1)  OJ 2000 L 239, p. 19.


title: Case C-550/08: Judgment of the Court (Fourth Chamber) of 17 June 2010 (reference for a preliminary ruling from the Finanzgericht München — Germany) — British American Tobacco (Germany) GmbH v Hauptzollamt Schweinfurt (Directive 92/12/EEC — Products subject to excise duty — Importation of raw tobacco not subject to excise duty under the inward processing procedure — Processing into cut tobacco — Movement between Member States — Accompanying document)

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/7

         Judgment of the Court (Fourth Chamber) of 17 June 2010 (reference for a preliminary ruling from the Finanzgericht München — Germany) — British American Tobacco (Germany) GmbH v Hauptzollamt Schweinfurt
   (Case C-550/08) (1)

   (Directive 92/12/EEC - Products subject to excise duty - Importation of raw tobacco not subject to excise duty under the inward processing procedure - Processing into cut tobacco - Movement between Member States - Accompanying document)
   2010/C 221/10
   Language of the case: German

      Referring court

   Finanzgericht München

      Parties to the main proceedings

      Applicant: British American Tobacco (Germany) GmbH

      Defendant: Hauptzollamt Schweinfurt

      Re:

   Reference for a preliminary ruling — Finanzgericht München — Interpretation of Articles 5(2) and 15(4) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products (OJ 1992 L 76, p. 1) — Cut tobacco subject to excise duty, manufactured in a Member State under an inward processing procedure in the form of a suspension system from raw tobacco which was not subject to excise duty when it was imported into Community territory — Whether, for purposes of applying the duty-suspension arrangements to the intra-Community movement of that tobacco product, an accompanying document drawn up by the consignor in accordance with Article 18(1) of Directive 92/12/EEC is required

      Operative part of the judgment

   The first indent of the first subparagraph of Article 5(2) of Council Directive 92/12/EEC of 25 February 1992 on the general arrangements for products subject to excise duty and on the holding, movement and monitoring of such products must be interpreted as meaning that products subject to excise duty (such as manufactured tobacco) which are manufactured from products not subject to excise duty (such as raw tobacco) and imported into the Community under the inward-processing procedure are to be deemed to be subject to duty-suspension arrangements, within the meaning of that provision, even though they have become products subject to excise duty only by virtue of having been processed within Community territory, with the result that they can move between Member States without the administrative authorities being entitled to insist on production of the administrative or commercial document provided for in Article 18(1) of that directive.

      (1)  OJ C 69, 21.03.2009.


title: Case C-171/17: Action brought on 5 April 2017 — Commission v Hungary

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/5

         Action brought on 5 April 2017 — Commission v Hungary
   (Case C-171/17)
   (2017/C 231/07)
   Language of the case: Hungarian

      Parties

      Applicant: European Commission (represented by: V. Bottka and H. Tserepa-Lacombe, acting as Agents)

      Defendant: Hungary

      Form of order sought

   The Commission claims that the Court should:

               —

               declare that the national mobile payment system established and maintained by Hungary, governed by Law CC of 2011 and Governmental Implementing Decree No 356/2012 of 13 December 2012, which creates a monopoly by granting exclusive rights to Nemzeti Mobilfizetési Zrt. and impedes entry into the wholesale mobile payments market, which was previously open to competition, and the establishment of which, moreover, was not necessary or proportional, is contrary:

                           —

                           first, to Article 15(2)(d) and Article 16(1) of Directive 2006/123/EC, (1) and

                           —

                           secondly, to Articles 49 TFEU and 56 TFEU.

               —

               order Hungary to pay the costs.

      Pleas in law and main arguments

   The a nemzeti mobilfizetési rendszerről szóló, 2011. április 1-jei CC. törvény (Law CC of 1 April 2011 concerning the national mobile payment system; ‘the Law’) changed the legal framework for mobile payment services with effect from 1 April 2013, although it only became binding as from 2 July 2014. The Law defines centralised mobile commerce services in the following sectors: (a) public car park services; (b) granting access to use public roads; (c) transport of persons carried out by a State undertaking; (d) other services provided by State bodies. Of the services mentioned, in practice it has only been possible, up to the present, to make mobile payments in Hungary in the sector of public car park services and in the sector of granting access to use public roads (the ‘e-matrica’ electronic toll sticker and the ‘HU-GO’ system). Nevertheless, the present proceedings concern the four sectors governed by the Law.
   According to the Commission, as regards public car park services, the Company Nemzeti Mobilfizetési Zrt. carries out essentially the same activity as that carried out by mobile payment service providers under the previous system, except that it enjoys an exclusive right to enter into contracts with car park operators and its fees are regulated. The same is true as regards the sector of granting access to use public roads, since Nemzeti Mobilfizetési Zrt. is the sole services provider which maintains a contractual relationship with the public services provider and may directly sell the authorisation to use the road. Accordingly, in those two sectors, the other providers of mobile services and mobile telephone services may only operate as resellers.
   Consequently, the establishment of the national mobile payment system and the exclusive rights granted to Nemzeti Mobilfizetési Zrt. impede, both as regards Hungarian and foreign undertakings, entry into the wholesale mobile payment market — and, therefore, into the market of services offered, pursuant to contractual relationships with the provider of the public car park services or other public services, to other providers which resell mobile payment services — which was previously open to competition. Thus, according to the Commission, the rules in relation to the national mobile payment system, taken as a whole, give rise to discrimination and are contrary to the freedom of establishment (infringement of Article 15 of Directive 2006/123 and of Article 49 TFEU). In addition, those rules are also contrary to the freedom to provide services (infringement of Article 16 of Directive 2006/123 and of Article 56 TFEU), since the exclusive rights granted to Nemzeti Mobilfizetési Zrt. restrict the provision of cross border services. In relation to the other centralised mobile commerce services, in respect of which it is not yet possible to make mobile payments in Hungary, the Law establishes the same exclusive right in favour of Nemzeti Mobilfizetési Zrt. and the legal analysis above is therefore equally valid.
   In accordance with the relevant provisions of the TFEU and Directive 2006/123, restrictions on the freedom of establishment and the freedom to provide services may be imposed only where they are not discriminatory and serve the public interest and moreover, where they fulfil the conditions of necessity and proportionality. In the Commission’s view, the arguments put forward by Hungary are not capable of justifying the restrictions imposed by the Law, since they do not meet the requirements of necessity and proportionality.

      (1)  Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006, L 376, p. 36).


title: Case C-491/06: Judgment of the Court (Third Chamber) of 8 May 2008 (reference for a preliminary ruling from the Vestre Landsret, Denmark) — Danske Svineproducenter v Justitsministeriet (Directive 91/628/EEC — Protection of animals during transport — Implementation — Margin of discretion — Domestic animals of the porcine species — Journeys exceeding eight hours — Minimum height of each deck of the vehicle — Loading density)

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/4

         Judgment of the Court (Third Chamber) of 8 May 2008 (reference for a preliminary ruling from the Vestre Landsret, Denmark) — Danske Svineproducenter v Justitsministeriet
   (Case C-491/06) (1)

   (Directive 91/628/EEC - Protection of animals during transport - Implementation - Margin of discretion - Domestic animals of the porcine species - Journeys exceeding eight hours - Minimum height of each deck of the vehicle - Loading density)
   (2008/C 158/06)
   Language of the case: Danish
   Referring court
   Vestre Landsret
   Parties to the main proceedings

      Applicant: Danske Svineproducenter

      Defendant: Justitsministeriet

      Intervener: Den Europæiske Dyre- og Kødhandelsunion (UECBV)
   Re:
   Reference for a preliminary ruling — Vestre Landsret — Interpretation of points 2(b), 47(D) and the third indent of point 48(3) of the Annex to Council Directive 91/628/EEC on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC (OJ 1991 L 340, p. 17), as amended by Council Directive 95/29/EC of 29 June 1995 (OJ 1995 L 148, p. 52) — Minimum height and loading density in each deck in vehicles transporting pigs where the transport exceeds eight hours
   Operative part of the judgment

               1.

               National rules such as those at issue in the main proceedings, comprising figures for the animal compartment height in order that transporters may refer to more precise standards than those set out in Council Directive 91/628/EEC of 19 November 1991 on the protection of animals during transport and amending Directives 90/425/EEC and 91/496/EEC, as amended by Council Directive 95/29/EC of 29 June 1995, may fall within the margin of discretion conferred on the Member States by Article 249 EC, on condition that those rules, which comply with the objective pursued by that directive, as amended, of protecting animals during transport do not, contrary to the principle of proportionality, prevent attainment of the objectives, also pursued by that directive, as amended, of eliminating technical barriers to trade in live animals and allowing market organisations to operate smoothly. It is for the national court to establish whether those rules comply with those principles.

               2.

               Section D of point 47 in Chapter VI of the annex to Directive 91/628, as amended by Directive 95/29, must be interpreted as meaning that a Member State is entitled to introduce national rules under which, in the case of transport operations of over eight hours' duration, the available space per animal must be at least 0,50 m2 per 100 kg of pig.

      (1)  OJ C 326, 30.12.2006.


title: Case C-303/08: Reference for a preliminary ruling from the Bundesverwaltungsgericht (Deutschland) lodged on 8 July 2008 — Metin Bozkurt v Land Baden-Württemberg

text:
               27.9.2008

               EN

               Official Journal of the European Union

               C 247/6

         Reference for a preliminary ruling from the Bundesverwaltungsgericht (Deutschland) lodged on 8 July 2008 — Metin Bozkurt v Land Baden-Württemberg
   (Case C-303/08)
   (2008/C 247/09)
   Language of the case: German
   Referring court
   Bundesverwaltungsgericht
   Parties to the main proceedings

      Applicant: Metin Bozkurt

      Defendant: Land Baden-Württemberg

      Other party: Der Vertreter des Bundesinteresses beim Bundesverwaltungsgericht
   Questions referred

               1.

               Is the right of residence and employment acquired as a member of the family pursuant to the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council by the spouse of a Turkish worker who is duly registered as belonging to the labour force of a Member State retained even after a divorce?
               If the reply to the first question is in the affirmative:

               2.

               Is it an abuse of rights to plead the right of residence derived from his former wife under the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council where the Turkish national raped and injured his former wife after acquiring the legal status and the offence was punished with two years' imprisonment?


title: Case T-224/11: Judgment of the General Court of 20 February 2013 — Caventa v OHIM — Anson’s Herrenhaus (BERG) (Community trade mark — Opposition proceedings — Application for the Community word mark BERG — Earlier Community word mark Christian Berg — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               13.4.2013

               EN

               Official Journal of the European Union

               C 108/22

         Judgment of the General Court of 20 February 2013 — Caventa v OHIM — Anson’s Herrenhaus (BERG)
   (Case T-224/11) (1)

   (Community trade mark - Opposition proceedings - Application for the Community word mark BERG - Earlier Community word mark Christian Berg - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2013/C 108/58
   Language of the case: German

      Parties

      Applicant: Caventa AG (Rekingen, Switzerland) (represented initially by: J. Krenzel, then by T. Stein and A. Segler, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented initially by: R. Manea, then by D. Walicka, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Anson's Herrenhaus KG (Düsseldorf, Germany) (represented by: O Löffel and P. Lange, lawyers)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 10 February 2011 (Case R 1494/2010-1), relating to opposition proceedings between Anson’s Herrenhaus KG and Caventa AG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Caventa AG to pay the costs.

      (1)  OJ C 194, 2.7.2011.


title: Case T-156/10: Action brought on 6 April 2010 — Confederación de Cooperativas Agrarias de España and CEPES v Commission

text:
               5.6.2010

               EN

               Official Journal of the European Union

               C 148/46

         Action brought on 6 April 2010 — Confederación de Cooperativas Agrarias de España and CEPES v Commission
   (Case T-156/10)
   2010/C 148/75
   Language of the case: Spanish

      Parties

      Applicants: Confederación de Cooperativas Agrarias de España (Madrid, Spain), Confederación Empresarial Española de la Economía Social (CEPES) (Madrid, Spain) (represented by: M. Araujo Boyd and M. Muñoz de Juan, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Accept as admissible and uphold the pleas in support of annulment submitted in this action;

               —

               annul Article 1 of the contested decision;

               —

               alternatively, annul Article 4 of the contested decision, and

               —

               order the Commission to pay the costs of these proceedings.

      Pleas in law and main arguments

   This action is brought against the Commission Decision of 15.12.2009 (State aid No C 22/2001) relating to measures to support agriculture implemented by Spain following the fuel price increase. That decision declares that certain measures to support agriculture included in Royal Decree Law 10/2000 of 6 October on emergency support for agriculture, fisheries and transport, (1) notified by Spain on 29 September 2000, constituted aid incompatible with the common market and orders recovery.
   The measures in question were the subject of an initial Commission Decision of 11 November 2001 (‘the initial decision’) which declared that ‘the measures to support agricultural cooperatives provided for by Royal Decree Law 10/2000 (…) do not constitute aid within the meaning of Article 87(1) EC’. That initial decision was annulled by a judgment of 12 December 2006, (2) on the ground of an inadequate statement of reasons, since the Commission did not in its decision take sufficient account the effect which other taxes, apart from those affecting companies, might have had on the tax arrangements applying to cooperatives. Thereafter, without adopting a fresh decision to initiate the procedure, the Commission adopted on 15 December 2009 the contested decision.
   The applicants put forward five pleas in support of annulment:

               —

               The first plea is based on the Commission’s infringement of the right of the parties concerned in the proceedings to be heard, since the Commission adopted the contested decision, the findings of which are diametrically opposed to those contained in the initial decision, without re-opening the formal procedure or giving the parties concerned the opportunity to submit their comments.

               —

               The second plea consists of the complaint that the Commission is going beyond what is required by the judgment in Case T-146/03, which merely found fault with the lack of an adequate statement of reasons in certain aspects of the initial decision. Instead of correcting those details, the Commission revised elements of its initial decision which were not called into question by the court. Such conduct on the part of the Commission infringes the principles of legal certainty and the protection of legitimate expectations of concerned parties.

               —

               Third, the applicants challenge the classification of the measure as State aid, on the ground that it is not enough to assert that, because they have a tax status which differs from that of companies, agricultural cooperatives whose trade is not 100 % with its members (the pure mutual cooperative model) enjoy an ‘advantage’, disregarding the fact that cooperatives and limited liability companies are not in a similar situation either in fact or in law. Moreover, even if such comparability were accepted — which is disputed — the tax arrangements of cooperatives do not entail any advantage, rather the differences are justified by the structure and nature of the Spanish tax system, as the Commission itself recognised in the initial decision, that aspect of which was not called into question by the judgment of 12 December 2006.

               —

               Alternatively, as a fourth plea in law, the applicants argue that the Commission did not state adequate reasons and erred in its analysis of the compatibility of the measure, in the light of Article 107(3)(c) TFEU, and that the measure at issue should have been declared to be compatible.

               —

               Lastly, the applicants challenge the order for recovery made in the contested decision

      (1)  Boletín Oficial del Estado No 241/2000 of 7 October, p. 34614.

      (2)  Case T-146/03 [2003] ECR II-98.


title: Case C-399/09: Judgment of the Court (Fourth Chamber) of 22 June 2011 (reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic)) — Marie Landtová v Česká správa socialního zabezpečení (Freedom of movement for workers — Social security — Agreement on social security entered into by two Member States before accession to the European Union — Member State competent to determine the value of completed periods of insurance — Old-age pension — Supplementary benefit paid solely to nationals and residents of a Member State)

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/6

         Judgment of the Court (Fourth Chamber) of 22 June 2011 (reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic)) — Marie Landtová v Česká správa socialního zabezpečení
   (Case C-399/09) (1)

   (Freedom of movement for workers - Social security - Agreement on social security entered into by two Member States before accession to the European Union - Member State competent to determine the value of completed periods of insurance - Old-age pension - Supplementary benefit paid solely to nationals and residents of a Member State)
   2011/C 232/09
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: Marie Landtová

      Defendant: Česká správa socialního zabezpečení

      Re:

   Request for a preliminary ruling — Nejvyšší správní soud — Interpretation of Article 12 EC and Articles 3(1) and 7(2)(c), 10 and 46 of Council Regulation (EEC) No 1408/71 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 1971 L 149, p. 2) together with point 6 of Part A of Annex III thereto — Old age pension — Determination of the Member State competent to determine the value of completed periods of insurance — Effects of Community legislation on an agreement on social security between two Member States entered into before their accession to the European Union.

      Operative part of the judgment

               1.

               The provisions of point 6 of Annex III(A) to Council Regulation (EC) 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 and as amended by Regulation (EC) No 629/2006 of the European Parliament and of the Council of 5 April 2006, read in conjunction with Article 7(2)(c) thereof, do not preclude a national rule, such as that at issue in the main proceedings, which provides for payment of a supplement to old age benefit where the amount of that benefit, granted pursuant to Article 20 of the bilateral agreement between the Czech Republic and the Slovak Republic signed on 29 October 1992 as a measure to regulate matters after the dissolution of the Czech and Slovak Federal Republic, is lower than that which would have been received if the retirement pension had been calculated in accordance with the legal rules of the Czech Republic.

               2.

               The combined provisions of Article 3(1) and Article 10 of Regulation No 1408/71, as amended by Regulation No 629/2006, preclude a national rule, such as that at issue in the main proceedings, which allows payment of a supplement to old age benefit solely to Czech nationals residing in the territory of the Czech Republic, but it does not necessarily follow, under European Union law, that an individual who satisfies those two requirements should be deprived of such a payment.

      (1)  OJ C 24, 30.1.2010.


title: Case C-162/10: Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Phonographic Performance (Ireland) Ltd v Ireland, Attorney General (Copyright and related rights — Directive 2006/115/EC — Articles 8 and 10 — Concepts of ‘user’ and ‘communication to the public’ — Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal)

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/3

         Judgment of the Court (Third Chamber) of 15 March 2012 (reference for a preliminary ruling from the High Court of Ireland — Ireland) — Phonographic Performance (Ireland) Ltd v Ireland, Attorney General
   (Case C-162/10) (1)

   (Copyright and related rights - Directive 2006/115/EC - Articles 8 and 10 - Concepts of ‘user’ and ‘communication to the public’ - Installation in hotel bedrooms of televisions and/or radios to which the hotelier distributes a broadcast signal)
   2012/C 133/05
   Language of the case: English

      Referring court

   High Court of Ireland

      Parties to the main proceedings

      Applicant: Phonographic Performance (Ireland) Ltd

      Defendants: Ireland, Attorney General

      Re:

   Reference for a preliminary ruling — High Court of Ireland — Interpretation of Articles 8(2) and 10(1)(a) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property (OJ 2006 L 376, p. 28) — Broadcasting and communication to the public of phonograms — Right to a single equitable remuneration for artists and producers — Concept of ‘user’ and of ‘communication to the public’ — Installation in hotel rooms of televisions and/or radios to which the hotel company distributes a broadcast signal

      Operative part of the judgment

               1.

               A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is a ‘user’ making a ‘communication to the public’ of a phonogram which may be played in a broadcast for the purposes of Article 8(2) of Directive 2006/115/EC of the European Parliament and of the Council of 12 December 2006 on rental right and lending right and on certain rights related to copyright in the field of intellectual property;

               2.

               A hotel operator which provides in guest bedrooms televisions and/or radios to which it distributes a broadcast signal is obliged to pay equitable remuneration under Article 8(2) of Directive 2006/115 for the broadcast of a phonogram, in addition to that paid by the broadcaster;

               3.

               A hotel operator which provides in guest bedrooms, not televisions and/or radios to which it distributes a broadcast signal, but other apparatus and phonograms in physical or digital form which may be played on or heard from such apparatus, is a ‘user’ making a ‘communication to the public’ of a phonogram within the meaning of Article 8(2) of Directive 2006/115/EC. It is therefore obliged to pay ‘equitable remuneration’ under that provision for the transmission of those phonograms;

               4.

               Article 10(1)(a) of Directive 2006/115, which provides for a limitation to the right to equitable remuneration provided for by Article 8(2) of that directive in the case of ‘private use’, does not allow Member States to exempt a hotel operator which makes a ‘communication to the public’ of a phonogram, within the meaning of Article 8(2) of that directive, from the obligation to pay such remuneration.

      (1)  OJ C 161, 19.6.2010.


title: Action brought on 19 October 1996 by Moccia Irme SpA against the Commission of the European Communities (Case T-164/96)

text:
8 . 2 . 97              EN                  Official Journal of the European Communities                                 No C 40/21
— infringement of the second paragraph of Article 25 of                conversion of plant to economic activities other than steel
      the Staff Regulations, inasmuch as the decision                  production . Under that legislation, aid is granted to
      rejecting the candidature in issue is vitiated by a              undertakings which reduce their productive capacity by
      complete absence of any statement of reasons,                    destroying plant . By decision of 12 December 1994, the
                                                                       Commission approved the abovementioned provisions .
— illegality of the vacancy notice referred to above, in               Pursuant to the legislation in question , the Italian
      that it does not mention the qualifications required for         authorities notified in September 1995 the provision of a
                                                                       contribution   of Lit    13 509 000 000    for the definitive
      the post to be filled and thereby enabled the
       appointing authority, when making the appointment in            cessation of steel production by the applicant and the
       issue, to stipulate, as decisive criteria , qualifications      closure of the relevant undertaking and the destruction of
       which had not been specified in that notice,                    plant resulting in capacity reductions of 288 000 tonnes in
                                                                       steel and 165 000 tonnes of hot-rolled products .
— infringement of Articles 7 ( 1 ), 27 and 45 ( 1 ) of the
       Staff Regulations. In advancing this plea , the applicant       By the contested decision , adopted on the basis of the
       claims that the appointing authority did not act in the         Steel Aid Code, the Commission declared the aid intended
       matter solely in the interest of the service, did not seek      for, inter alia, the applicant undertaking, to be
       to secure the highest standard of ability and did not           incompatible , since it considered that aid for closures must
       consider the comparative merits of, and reports on,             be granted only to undertakings which have regular
       the candidates . He states in that regard that, even if         production on the steel market.
       such a comparative analysis had been carried out, it
       would still have been apparent that there has been a
       manifest error of assessment and a breach of the                The applicant claims first of all that, where undertakings
       principle of the protection of legitimate expectations .        do not merely suspend production temporarily but cease
                                                                       production definitively, they no longer satisfy the
                                                                       conditions laid down in Article 80 and thus of Article 4 ( c )
                                                                       of the Treaty. It follows therefrom that by regulating and
                                                                       limiting by way of the Steel Aid Code national state
                                                                       contributions granted to persons no longer subject to the
                                                                       obligations arising from the ECSC Treaty, the defendant
Action brought on 19 October 1996 by Moccia Irme SpA                   has legislated in a matter not provided for in that Treaty.
    against the Commission of the European Communities                 Hence, the second paragraph of Article 4 of the Code is
                          ( Case T-164/96 )                            unlawful .
                             ( 97/C 40/50 )
                                                                       The applicant further alleges that the principle of equal
                  (Language of the case: Italian)                      treatment has been breached . It should be noted in this
                                                                       regard that, where closure is partial, the incentive may be
 An action against the Commission of the European                      granted for the closure of a plant which is suitable solely
 Communities was brought before the Court of First                      for production , while a steel undertaking which has only
 Instance of the European Communities on 19 October                     one plant is required to have regularly manufactured steel
 1996 by Moccia Irme SpA, whose registered office is in                 products up to the date of notification of the aid scheme .
 Naples ( Italy ), represented by Emilio Cappelli , Paolo de            Moreover, if an undertaking is in the course of adapting
 Caterini and Andrea Bandini, of the Rome Bar, with an                  its plant for industrial waste disposal and is doing so
 address for service in Luxembourg at the Chambers of                   because it is required by law, it cannot be criticized for
 Charles Turk, 13 B, Avenue Guillaume .                                 suspending production .
 The applicant claims that the Court should:                            As regards breach of the principle that legislation must be
                                                                        published and cannot be retroactive, the applicant
                                                                        maintains that the defendant cannot fulfil such essential
 — annul, pursuant to Articles 33 and 36 of the ECSC
        Treaty, the Commission Decision of 30 July 1996 —               requirements by introducing and applying in 1996 , that is
        C(96 ) 2385 final, and                                          subsequently and for specific cases, criteria for interpreting
                                                                        the Code with the aim of regulating the 1993 steel
                                                                        production of those undertakings .
 — order the Commission to pay the costs .
  Pleas in law and main arguments adduced in support:                    Finally, the applicant states that the Commission, by
                                                                         applying unjustifiably restrictive parameters when
                                                                         assessing aid to closure while at the same time rejecting
  In 1994, the Italian Government notified to the                        the alternative criterion of ' suitability for production',
  Commission Law No 481 of 3 August 1994 and the                         proposed by the Italian authority, has disregarded the
  Decree of the Minister for Industry, Commerce and Crafts               objectives which its discretionary powers are intended to
  No 683 of 12 October 1994, both of which were intended                 achieve, and has therefore misused its powers .
  to promote the implementation of a plan to restructure the
  distribution of the national steel industry by means of
  assistance in the closure of production units and the


title: Case C-192/12 PPU: Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Korkein oikeus, Finland) — Execution of a European arrest warrant in respect of Melvin West (Police and judicial cooperation in criminal matters — Framework Decision 2002/584/JHA — European arrest warrant and surrender procedures between Member States — European arrest warrant issued for the purposes of execution of a custodial sentence — Article 28 — Subsequent surrender — ‘Chain’ of European arrest warrants — Execution of a third European arrest warrant in respect of the same person — Concept of ‘executing Member State’ — Consent to surrender — Urgent preliminary ruling procedure)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/7

         Judgment of the Court (Second Chamber) of 28 June 2012 (reference for a preliminary ruling from the Korkein oikeus, Finland) — Execution of a European arrest warrant in respect of Melvin West
   (Case C-192/12 PPU) (1)

   (Police and judicial cooperation in criminal matters - Framework Decision 2002/584/JHA - European arrest warrant and surrender procedures between Member States - European arrest warrant issued for the purposes of execution of a custodial sentence - Article 28 - Subsequent surrender - ‘Chain’ of European arrest warrants - Execution of a third European arrest warrant in respect of the same person - Concept of ‘executing Member State’ - Consent to surrender - Urgent preliminary ruling procedure)
   2012/C 258/11
   Language of the case: Finnish

      Referring court

   Korkein oikeus

      Parties to the main proceedings

   Melvin West

      Re:

   Reference for a preliminary ruling — Korkein oikeus — Interpretation of Article 28(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States — Arrest warrant for the execution of a custodial sentence — Concept of ‘executing Member State’ in the case of subsequent surrender — National of Member State A surrendered by that Member State to Member State B for the execution of a term of imprisonment and then, after the end of that term, by Member State B to Member State C for the execution of a term of imprisonment in that State — Request by Member State D to Member State C, under an arrest warrant, for the person concerned to be surrendered to Member State D for the execution of a sentence of imprisonment

      Operative part of the judgment

   Article 28(2) of Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, as amended by Council Framework Decision 2009/299/JHA of 26 February 2009, must be interpreted as meaning that, where a person has been subject to more than one surrender between Member States pursuant to successive European arrest warrants, the subsequent surrender of that person to a Member State other than the Member State having last surrendered him is subject to the consent only of the Member State which carried out that last surrender.

      (1)  OJ C 184, 23.6.2012.


title: Case C-117/03: Reference for a preliminary ruling by the Consiglio di Stato in sede giurisdizionale, Sezione Sesta by order of that Court of 17 December 2002 in the case of Società Italiana Dragaggi s.p.a. against Ministero delle Infrastrutture e dei Trasporti and Regione Autonoma del Friuli Venezia Giulia

text:
24.5.2003               EN                       Official Journal of the European Union                                          C 124/7
Appeal brought on 14 March 2003 by Augusto Fichtner,                           b)   even if it should be deemed that the appellant did,
a former official of the Commission of the European                                 however, fail to fulfil said obligation, such breach
Communities, against the judgment of 16 January 2003 of                             could not be held to have been committed ‘intention-
the Fourth Chamber of the Court of First Instance in Case                           ally or through negligence’;
           T-75/00 Augusto Fichtner v Commission
                                                                         2.    the principle of proportionality (by the administration)
                                                                               by:
                         (Case C-116/03 P)
                                                                               a)   misuse of its powers: the Commission, by adopting
                                                                                the contested decision, pursued an objective other
                          (2003/C 124/11)                                           that for which the relevant power had been con-
                                                                                ferred on it (safeguarding the internal rules of the
                                                                                civil service) and, in any event, in order to achieve
                                                                                purposes other than those declared;
An appeal against the judgment of 16 January 2003 of the
Fourth Chamber of the Court of First Instance in Case T-75/                    b)   manifest error of assessment of the facts: the Com-
00 Augusto Fichtner v Commission was brought before the                             mission failed to take into account:
Court of Justice of the European Communities on 14 March
2003 by Augusto Fichtner, represented by Michele Tamburini                          1)    the good faith of the appellant;
and Franco Colussi, lawyers.
                                                                                2)    that he could not have been refused the per-
                                                                                mission in question since the outside activity
                                                                                did not impair the official’s independence nor
The appellant claims that the Court should:
                                                                                was detrimental to the work of the Communi-
                                                                                ties.
—     set aside the contested judgment;
—     uphold the claims submitted at first instance and, accord-
      ingly;
      —     annul the contested decision of the appointing
            authority of 30 September 1999, which is at issue;           Reference for a preliminary ruling by the Consiglio di
                                                                         Stato in sede giurisdizionale, Sezione Sesta by order of
                                                                         that Court of 17 December 2002 in the case of Società
      —     order the Commission to pay him the outstanding              Italiana Dragaggi s.p.a. against Ministero delle Infrastruttu-
            remuneration and allowances as revalued and with             re e dei Trasporti and Regione Autonoma del Friuli
            interest to run from the date on which the decision                                    Venezia Giulia
            took effect until actual payment is made;
                                                                                (Case C-117/03)
      —     order the Commission to make good the material
            and non-material damage suffered by the appellant,
            such compensation being assessed at EUR 50 000 or                                     (2003/C 124/12)
            any other amount which the Court might deem
            appropriate and equitable or as may be subsequently
            decided;
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by order of the Consiglio di Stato in
—     order the Commission to pay the costs.                             sede giurisdizionale, Sezione Sesta (Judicial Committee of the
                                                                         Council of State, Sixth Chamber) of 17 December 2002,
                                                                         received at the Court Registry on 18 March 2003, for a
                                                                         preliminary ruling in the case of Società Italiana Dragaggi s.p.a.
                                                                         against Ministero delle Infrastrutture e dei Trasporti and
Pleas in law and main arguments
                                                                         Regione Autonoma del Friuli Venezia Giulia on the following
                                                                         question:
The judgment of the Court of First Instance is contrary to
Community law, in particular to:
                                                                         Is Article 4(5) of Directive No 92/43/EEC (1) of 21 May 1992
                                                                         to be interpreted as meaning that the measures under Article 6
1)    Article 86(1) of the Staff Regulations, inasmuch as:
                                                                         and, in particular, under Article 6(3) of that directive are
                                                                         mandatory for the Member States only after final approval at
      a)    the appellant did not fail to fulfil his obligations         Community level of the list of sites under Article 21 or,
            under the third paragraph of Article 12 of the Staff         alternatively, in addition to determination of the ordinary
            Regulations, having proved that he did request               commencement date of conservation measures, must a distinc-
            permission to pursue an outside activity;                    tion be drawn between declaratory listing and determinative
 ---pagebreak--- C 124/8                EN                        Official Journal of the European Union                                           24.5.2003
listing (including in the first category the listing of priority         2(b) In the event that Article 2(4) of Directive 92/46/EEC also
sites) with the result that, in order to ensure the effectiveness              refers to semifinished products, according to which
of the directive, where a Member State identifies a site of                    criteria must it be determined whether milk or a milk
Community importance sustaining priority natural habitat                       product forms an essential part of a product, either in
types or species, there must be considered to be an obligation                 terms of quantity or for characterization of those prod-
to carry out an assessment of plans and projects with a                        ucts, as referred to in Article 2(4) of Directive 92/46/EEC?
significant effect on the site even before the Commission draws
up the draft list of sites or adopts the final version of that list
pursuant to Article 21 of the directive and, in fact, with effect        (1 ) OJ L 268 [1992], p. 1.
from the drawing up of the national list?
( 1) OJ L 206 of 22.7.1992, p. 7.
                                                                         Action brought on 20 March 2003 by the Commission of
                                                                         the European Communities against the Federal Republic
                                                                                of Germany
                                                                                (Case C-126/03)
Reference for a preliminary ruling by the College van
Beroep voor het bedrijfsleven by judgment of that Court                                            (2003/C 124/14)
of 11 March 2003 in the case of (1) Artrada (Freezone)
NV, (2) Videmecum BV and (3) Jac. Meisner Internationaal
Expeditiebedrijf BV against Rijksdienst voor de Keuring
                        van Vee en Vlees                                 An action against the Federal Republic of Germany was
                                                                         brought before the Court of Justice of the European Communi-
                                                                         ties on 20 March 2003 by the Commission of the European
                         (Case C-124/03)                                 Communities, represented by Klaus Wiedner, of the Com-
                                                                         mission’s Legal Service, acting as Agent, with an address for
                         (2003/C 124/13)                                 service in Luxembourg.
                                                                         The Commission claims that the Court should:
Reference has been made to the Court of Justice of the                   —     Declare that, by reason of the fact that the contract for
European Communities by judgment of the College van Beroep                     waste transport concluded by the City of Munich was
voor het bedrijfsleven (Administrative Court for Trade and                     awarded without compliance with the notification
Industry) of 11 March 2003, received at the Court Registry on                  requirements laid down in Article 8, in conjunction with
20 March 2003, for a preliminary ruling in the case of                         Articles 15(2) and 16(1), of Directive 92/50 (1), the
(1) Artrada (Freezone) NV, (2) Videmecum BV and (3) Jac.                       Federal Republic of Germany has failed to fulfil its
Meisner Internationaal Expeditiebedrijf BV against Rijksdienst                 obligations under that directive; and
voor de Keuring van Vee en Vlees (Netherlands Livestock and
Meat Inspectorate) on the following questions:                           —     Order the Federal Republic of Germany to pay the costs
                                                                               of the proceedings.
1(a) Must the term ‘milk for the manufacture of milk-based
      products’ in Article 2(2) of Directive 92/46/EEC (1) be
      interpreted as meaning that it (also) includes milk con-
      stituents of a product which also contains other non-milk          Pleas in law and main arguments
      constituents and where the milk constituent cannot be
      separated from the non-milk constituents?
                                                                         If — as is the case with the Municipality of the City of Munich
                                                                         — the conditions for the existence of a body governed by
1(b) If the answer to question 1(a) is affirmative: must                 public law are met, there is no need under the directive to
      Article 22 of Directive 92/46/EEC be interpreted as                draw a distinction, in the case of every requested provision of
      meaning that in the case of imports from non-Member                services, as to whether such services are provided in the general
      States that directive is applicable only to the milk               interest and are commercial in nature. It is for that reason
      constituent of a product and thus not to the product of            irrelevant that, in the present case, the City of Munich, in
      which it is a constituent?                                         connection with the provision of a service for a third party,
                                                                         burns waste in its own incineration plant and does not effect
2(a) Does the concept of ‘milk-based products’ in Article 2(4)           the transport to that plant itself but relies on a private
      of Directive 92/46/EEC concern only finished products              undertaking to do so. If a public body tenders successfully for
      or also semifinished products which must undergo further           a contract but is obliged to subcontract out certain services in
      processing before they can be offered for sale to the              order to ensure provision of the overall service, that public
      consumer?                                                          body must apply the procedures set out in Directive 92/50.


title: Case T-402/10: Action brought on 9 September 2010 — Villeroy & Boch — Belgium v Commission

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/53

         Action brought on 9 September 2010 — Villeroy & Boch — Belgium v Commission
   (Case T-402/10)
   ()
   2010/C 301/85
   Language of the case: Dutch

      Parties

      Applicant: Villeroy & Boch — Belgium (Brussels, Belgium) (represented by: O. Brouwer and J. Blockx, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul the contested decision in so far as it concerns Villeroy & Boch Belgium N.V./S.A;

               —

               in the alternative, reduce the fine imposed on the applicant; and also

               —

               order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant seeks the partial annulment of Commission Decision C(2010) 4185 of 23 June 2010 in Case COMP/39092 — Bathroom fixtures and fittings, relating to an infringement of Article 101(1) TFEU on the market for taps, shower cabins and ceramic products.
   The applicant puts forward seven pleas in support of its action:

               —

               breach of Article 101 TFEU, Article 53 of the EEA Agreement and settled case-law in so far as the Commission incorrectly assumed that there had been a single and continuous infringement;

               —

               breach of the duty to state reasons flowing from Article 296(2) TFEU on account of an inadequate and defective statement of reasons in relation to the finding of a single and continuous infringement;

               —

               breach of the duty to state reasons in relation to the applicant’s alleged participation in the infringement of which it stands accused on the Belgian market and absence of evidence that the applicant participated in that infringement on the Belgian market;

               —

               the joint and several liability for the fine imposed on the applicant and its parent company infringes the principle nulla poena sine lege laid down in Article 49(1) of the Charter of Fundamental Rights of the European Union and the principle of the proportionality of the penalty to the offence pursuant to Article 49(3) in conjunction with Article 48(1) of the Charter, and infringement of Article 23 of Regulation (EC) No 1/2003;

               —

               miscalculation of the amount of the fine, since that amount relates to certain turnover which has no connection with the infringement of which the applicant stands accused;

               —

               breach of Article 41 of the Charter, since the disproportionate length of the procedure did not result in a reduction of the fine;

               —

               breach of Article 23(3) of Regulation No 1/2003 on account of the incorrect setting of the fine in the light of the gravity of the infringement and incorrect setting of the ‘deterrent factor’, as well as the disproportionate amount of the fine in absolute terms.


title: Case C-186/05: Judgment of the Court (Sixth Chamber) of 4 October 2007 — Commission of the European Communities v Kingdom of Sweden (Failure of a Member State to fulfil obligations — National monopoly on retail sales of alcoholic beverages — Importation by private individuals prohibited)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/4

         Judgment of the Court (Sixth Chamber) of 4 October 2007 — Commission of the European Communities v Kingdom of Sweden
   (Case C-186/05) (1)

   (Failure of a Member State to fulfil obligations - National monopoly on retail sales of alcoholic beverages - Importation by private individuals prohibited)
   (2007/C 297/05)
   Language of the case: Swedish
   Parties

      Applicant: Commission of the European Communities (represented by: L. Ström van Lier and S. Pardo Quintillán, acting as Agents)

      Defendant: Kingdom of Sweden (represented by: K. Wistrand, acting as Agent)

      Intervener in support of the defendant: Republic of Finland (represented by: E. Bygglin, acting as Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 28 EC and 30 EC — National legislation relating to a national monopoly on retail sales of alcoholic beverages prohibiting the direct importation of such beverages by private individuals
   Operative part of the judgment
   The Court:

               1.

               Declares that, by prohibiting the importation of alcoholic beverages by private individuals acting by their designated independent intermediaries or professional transporters, the Kingdom of Sweden has failed to fulfil its obligations under Article 28 EC and that prohibition cannot be regarded as being justified under Article 30 EC.

               2.

               Orders the Kingdom of Sweden to pay the costs.

      (1)  OJ C 171 of 9.7.2005.


title: Case T-811/16: Action brought on 18 November 2016 — Di Bernardo v Commission

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/49

         Action brought on 18 November 2016 — Di Bernardo v Commission
   (Case T-811/16)
   (2017/C 030/57)
   Language of the case: French

      Parties

      Applicant: Danilo Di Bernardo (Brussels, Belgium) (represented by: S. Orlandi and T. Martin, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of 10 August 2016 by which the selection board in Open Competition EPSO/AST-SC/03/15 excluded the applicant from that competition;

               —

               order the Commission to pay all of the costs in any event.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a number of manifest errors of assessment on the part of the selection board when evaluating the applicant’s professional experience.

               2.

               Second plea in law, raised in the alternative, alleging insufficient reasoning of the contested decision on the basis of the failure to inform the applicant of the selection criteria established by the selection board.


title: Case T-405/13: Action brought on 8 August 2013 — Le Comptoir d'Épicure v OHIM — A-Rosa Akademie (da rosa)

text:
               28.9.2013

               EN

               Official Journal of the European Union

               C 284/4

         Action brought on 8 August 2013 — Le Comptoir d'Épicure v OHIM — A-Rosa Akademie (da rosa)
   (Case T-405/13)
   2013/C 284/06
   Language in which the application was lodged: French

      Parties

      Applicant: Le Comptoir d'Épicure (Paris, France) (represented by: S. Arnaud, lawyer)

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

      Other party to the proceedings before the Board of Appeal: A-Rosa Akademie GmbH (Rostock, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the Fifth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 22 May 2013 in case R 1195/2012-5; and

               —

               order OHIM and A-Rosa Akademie GmbH to pay the costs

      Pleas in law and main arguments

      Applicant for a Community trade mark: Le Comptoir d'Épicure

      Community trade mark concerned: The international registration designating the European Union of the figurative mark with word elements ‘da rosa’ for goods and services in Classes 29, 30 and 43 — International registration No 1 047 095 designating the European Union

      Proprietor of the mark or sign cited in the opposition proceedings: A-Rosa Akademie GmbH

      Mark or sign cited in opposition: National, international and Community word marks ‘aROSA’ and national and international figurative marks with the word elements ‘aROSA Lust auf Schiff’

      Decision of the Opposition Division: The opposition is upheld in part

      Decision of the Board of Appeal: The action is dismissed

      Pleas in law:

               —

               First plea, alleging a contradiction in the reasoning , if not an excess of authority;

               —

               Second plea, alleging infringement of Articles 5, 34(1) and 35 of Regulation No 207/2009;

               —

               Third plea, alleging infringement of Article 42(2) of Regulation No 207/2009, of Rule 22 of Regulation No 2868/95, and of Article 78(1) of Regulation No 207/2009;

               —

               Fourth plea, alleging infringement of general principles of law, of the hierarchy of legal rules and a manifest error of assessment;

               —

               Fifth plea, alleging infringement of Article 8(1)(b) of Regulation No 207/2009;

               —

               Sixth plea, alleging infringement of Article 6 of the European Convention on Human Rights, Article 75 of Regulation No 207/2009 and Rule 22(2) and (3) of Regulation No 2868/95;

               —

               Seventh plea, alleging a manifest error concerning the relevant public and the assessment of the signs;

               —

               Eighth plea: the distinctive character of the earlier mark in Classes 39, 43 and 44.


title: Case C-272/09 P: Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Market for copper industrial tubes — Fines — Size of the market, duration of the infringement and cooperation capable of being taken into consideration — Effective judicial remedy)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/4

         Judgment of the Court (Second Chamber) of 8 December 2011 — KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA v European Commission
   (Case C-272/09 P) (1)

   (Appeal - Competition - Agreements, decisions and concerted practices - Market for copper industrial tubes - Fines - Size of the market, duration of the infringement and cooperation capable of being taken into consideration - Effective judicial remedy)
   2012/C 32/06
   Language of the case: English

      Parties

      Appellants: KME Germany AG, formerly KM Europa Metal AG, KME France SAS, formerly Tréfimétaux SA, KME Italy SpA, formerly Europa Metalli SpA (represented by: M. Siragusa, avvocato, A. Winckler, avocat, G. Rizza, avvocato, T. Graf, advokat, M. Piergiovanni, avvocato)

      Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and J. Bourke, acting as Agents, C. Thomas, Solicitor)

      Re:

   Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 6 May 2009 in Case T-127/04 KME Germany and Others v Commission, in which the Court dismissed an action seeking reduction of the fine imposed on the applicants by Commission Decision 2004/421/EC of 16 December 2003, relating to a proceeding pursuant to Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/E-1/38.240 — Industrial tubes) (OJ 2004 L 125, p. 50) — Price-fixing and market-sharing — Actual impact on the market — Guidelines for calculating the amount of fines

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders KME Germany AG, KME France SAS and KME Italy SpA to pay the costs.

      (1)  OJ C 220, 12.9.2009.


title: Case T-303/94: Order of the General Court (Eighth Chamber) of 4 March 2010 — Jong v Council and Commission

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/50

         Order of the General Court (Eighth Chamber) of 4 March 2010 — Jong v Council and Commission
   (Case T-303/94)
   2010/C 134/80

      Language of the case: Dutch

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


               22.1.2005

               EN

               Official Journal of the European Union

               C 19/17

         Removal from the register of Case C-86/04 (1)

   (2005/C 19/39)

      (Language of the case: French)

   By order of 14 October 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-86/04: Commission of the European Communities v Grand Duchy of Luxembourg.

      (1)  OJ C 85 of 3.4.2004.


title: Case C-453/10: Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o. (Consumer protection — Consumer credit agreement — Incorrect statement of annual percentage rate of charge — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/7

         Judgment of the Court (First Chamber) of 15 March 2012 (reference for a preliminary ruling from the Okresný súd Prešov — Slovakia) — Jana Pereničová, Vladislav Perenič v SOS financ, spol. s r. o.
   (Case C-453/10) (1)

   (Consumer protection - Consumer credit agreement - Incorrect statement of annual percentage rate of charge - Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole)
   2012/C 133/11
   Language of the case: Slovak

      Referring court

   Okresný súd Prešov

      Parties to the main proceedings

      Applicants: Jana Pereničová, Vladislav Perenič

      Defendant: SOS financ, spol. s r. o.

      Re:

   Reference for a preliminary ruling — Okresný súd Prešov — Interpretation of Articles 4(1) and 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts (OJ 1993 L 95, p. 29), and of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) (OJ 2005 L 149, p. 22) — Consumer credit contract stipulating a usurious interest rate — Effect of unfair commercial practices and unfair terms on the validity of the contract as a whole.

      Operative part of the judgment

               1.

               Article 6(1) of Council Directive 93/13/EEC of 5 April 1993 on unfair terms in consumer contracts must be interpreted as meaning that, when assessing whether a contract concluded with a consumer by a trader which contains one or more unfair terms can continue to exist without those terms, the court hearing the case cannot base its decision solely on a possible advantage for one of the parties, in this case the consumer, of the annulment of the contract in question as a whole. That directive does not, however, preclude a Member State from providing, in compliance with European Union law, that a contract concluded with a consumer by a trader which contains one or more unfair terms is to be void as a whole where that will ensure better protection of the consumer.

               2.

               A commercial practice such as that at issue in the main proceedings which consists in indicating in a credit agreement an annual percentage rate of charge lower than the real rate must be regarded as ‘misleading’ within the meaning of Article 6(1) of Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (‘Unfair Commercial Practices Directive’) in so far as it causes or is likely to cause the average consumer to take a transactional decision that he would not have taken otherwise. It is for the national court to ascertain whether that is the case in the main proceedings. A finding that such a commercial practice is unfair is one element among others on which the competent court may, pursuant to Article 4(1) of Directive 93/13, base its assessment of the unfairness of the contractual terms relating to the cost of the loan granted to the consumer. Such a finding, however, has no direct effect on the assessment, from the point of view of Article 6(1) of Directive 93/13, of the validity of the credit agreement concluded.

      (1)  OJ C 328, 4.12.2010.


title: Case C-345/12: Action brought on 19 July 2012 — European Commission v Italian Republic

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/26

         Action brought on 19 July 2012 — European Commission v Italian Republic
   (Case C-345/12)
   2012/C 287/50
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: E. Montaguti and K. Hermann, acting as Agents)

      Defendant: Italian Republic

      Form of order sought

               —

               Declare that, by failing to lay down an obligation to make available, when buildings are sold or rented out, an energy performance certificate, in accordance with the provisions, and on the conditions, laid down in Articles 7 and 10 of Directive 2002/91/EC of the European Parliament and of the Council of 16 December 2002 on the energy performance of buildings, (1) the Italian Republic has failed to fulfil its obligations under Article 7(1) and (2) and Article 10 of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings; (2)

               —

               declare that, by having failed to notify all the measures transposing Article 9 of Directive 2002/91/EC, the Italian Republic has failed to fulfil its obligations under Article 15(1) of that directive, in conjunction with Article 29 of Directive 2010/31/EU of the European Parliament and of the Council of 19 May 2010 on the energy performance of buildings;

               —

               order the Italian Republic to pay the costs.

      Pleas in law and main arguments

   The period for transposing Directive 2002/91/EC expired on 4 January 2006. The period for transposing Articles 7 to 9 of that directive expired on 4 January 2009 and, in the Commission’s submission, Article 28 of Directive 2010/31/EU, which allows Member States to defer the application of the requirement to make energy performance certificates available, does not cover certificates already issued or to be issued on the basis of Article 7(1) of Directive 2002/91/EC.
   At the date of commencement of this action, the defendant had not yet adopted all the measures necessary to implement the directive.

      (1)  OJ 2003 L 65, p. 1.

      (2)  OJ 2010 L 153, p. 13.


title: Removal from the register of T-209/96

text:
1 . 11 . 97         1 EN [                Official Journal of the European Communities                                    C 331 /25
In support of her claims, she pleads, first, breach of the           Pleas in law and main arguments adduced in support:
principle of the protection of legitimate expectations, in
that, according to a practice previously established by the
                                                                     By note of 21 January 1997 the applicant, a grade CI
defendant, the names of those officials most worthy of
                                                                     official, requested that her daughter, born on 14 October
promotion who are not promoted are entered once again                1968 , and her son, born on 6 June 1972, be treated as
in the list of officials most worthy of promotion in the
                                                                     dependent children. That request was granted in relation
following year. This gives rise to a legitimate expectation          to her son .
on the part of officials whose names appear in the list
that, if they are not promoted during the current year,
their names will, at the very least, be entered once again           The applicant pleads infringement of the obligation to
in the list for the following year. In that regard, the              provide a statement of reasons, inasmuch as the contested
applicant also pleads a breach of the obligation to provide          decision is based on an opinion of the Legal Service which
a statement of reasons .                                             was not communicated to the applicant, despite a formal
                                                                     request made by her lawyer.
The applicant further pleads irregularity in the promotion
procedure by reason of maladministration, inasmuch as,
faced with a report going back a long time, the defendant            The second plea alleges infringement of Article 2 (4 ) of
                                                                     Annex VII and a manifest error of assessment.
should, at the very least, have based its decision on the
most recent definitive staff report available. By virtue of
its failure to do so, the Commission was unable to carry
out a proper comparison of the merits of the officials
worthy of promotion.
                                                                               Removal from the register of T-209/96 (')
                                                                                ( 97/C 331 /51 )
Action brought on 8 September 1997 by Giovanna                                      (Language of the case: French)
     Lonuzzo-Murgante against the European Parliament
                        ( Case T-247/97)
                                                                     By order of 10 September 1997, the President of the Third
                          ( 97/C 331/50 )                            Chamber of the Court of First Instance of the European
                (Language of the case: French)                       Communities ordered the removal from the register of
                                                                     Case T-209/96 :      Adam      Buick v.    Commission of the
An action against the European Parliament was brought                European Communities.
before the Court of First Instance of the European
Communities on 8 September 1997 by Maria Lonuzzo                    H OJ C 54, 22 . 2 . 1997.
Murgante, residing in Strassen ( Luxembourg ), represented
by Jean-Noel Louis, Thierry Demaseure and Ariane
Tornel, of the Brussels Bar, with an address for service in
Luxembourg at the offices of Fiduciaire Myson Sari, 30
Rue de Cessange .
The applicant claims that the Court should:                                    Removal from the register of T-145/96 (')
                                                                                ( 97/C 331 /52 )
— annul the decision rejecting the request that Miss
     Maria Lonuzzo be treated as a dependent child,
                                                                                (Language of the case: French)
— order the Parliament to pay to the applicant all social
     welfare allowances connected with the status of her
                                                                     By order of 15 September 1997, the President of the Third
     daughter Giovanna as a dependent child, together with
     default interest at the rate of 8 % per annum from the          Chamber of the Court of First Instance of the European
                                                                      Communities ordered the removal from the register of
     date(s ) when they became payable until the date when
                                                                      Case T-145/96 : Monika Kawicki v. European Parliament.
     they are paid,
— order the defendant to pay the costs .                              H OJ C 336, 9 . 11 . 1996 .


title: Case F-109/06: Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Dittert v Commission (Civil service — Officials — Promotion — Priority points — Incomplete personal file — Omission of priority points from the computer promotion file known as Sysper 2 — Technical problem — A* Promotion Committee — Allocation of a lower number of points than had been proposed by the applicant's superiors)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/31

         Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Dittert v Commission
   (Case F-109/06) (1)

   (Civil service - Officials - Promotion - Priority points - Incomplete personal file - Omission of priority points from the computer promotion file known as ‘Sysper 2’ - Technical problem - A* Promotion Committee - Allocation of a lower number of points than had been proposed by the applicant's superiors)
   (2008/C 8/54)
   Language of the case: French
   Parties

      Applicant: Daniel Dittert (Luxembourg, Luxembourg) (represented by: B. Cortese and C.Cortese, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and K. Herrmann, Agents)
   Re:
   Annulment of the Appointing Authority's decision to allocate to the applicant, an official of the Commission who had been omitted in error from the promotion list in his Directorate-General, fewer priority points than the latter wished to give him and which were insufficient to allow his promotion in the 2005 exercise.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision of the Commission of the European Communities allocating to Mr Dittert an insufficient number of points to allow his promotion in the 2005 exercise;

               2.

               Annuls the decision of the Commission of the European Communities fixing the list of officials promoted in the 2005 exercise, published in Informations Administratives No 85-2005 of 23 November 2005, in so far as it does not contain Mr Dittert's name;

               3.

               Orders the Commission of the European Communities to bear its own costs and to pay those of Mr Dittert.

      (1)  OJ C 281 of 18.11.2006, p 47.


title: Case C-441/09: Action brought on 11 November 2009 — Commission of the European Communities v Republic of Austria

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/27

         Action brought on 11 November 2009 — Commission of the European Communities v Republic of Austria
   (Case C-441/09)
   2010/C 24/50
   Language of the case: German

      Parties

      Applicant: Commission of the European Communities (represented by: D. Triantafyllou and B.-R. Killmann, Agents)

      Defendant: Republic of Austria

      Form of order sought

               —

               declare that, by applying a reduced rate of value added tax (VAT) to the supply, importation and intra-Community acquisitions of certain live animals, in particular horses, not intended for use in the preparation of foodstuffs for human or animal consumption, the Republic of Austria has failed to fulfil its obligations under Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system (1);

               —

               order the Republic of Austria to pay the costs.

      Pleas in law and main arguments

   The Commission is of the opinion that Austrian law on VAT infringes Article 96 and 98 in conjunction with Annex III of the Directive on the VAT system, by also applying a reduced rate of VAT to the supply of certain live animals (in particular horses), where those animals are not intended for the production of foodstuffs.
   The expression ‘live animals’ in point 1 of Annex III to the Directive on the VAT system is not a separate category but encompasses only those animals which are normally used as foodstuffs for human or animal consumption. That interpretation is supported by the Spanish, French, English, Italian, Dutch, Portuguese and Swedish versions of that provision. In addition the fact that that provision is an exception requires according to settled case-law that it be interpreted strictly.
   Particularly animals of the family of equids are clearly used principally as pack or riding animals (and not as foodstuffs for human or animal consumption).

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).