title: Case T-176/09: Action brought on 6 May 2009 — Government of Gibraltar v Commission

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/48

         Action brought on 6 May 2009 — Government of Gibraltar v Commission
   (Case T-176/09)
   2009/C 153/92
   Language of the case: English

      Parties

      Applicant: Government of Gibraltar (represented by: D. Vaughan, QC and M. Llamas, Barrister)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul Decision 2009/95/EC to the extent that it extends ES6120032 to British Gibraltar Territorial Waters (both within and outside UKGIB0002) and to an area of the High Seas;

               —

               order the Commission to pay the applicant’s legal and other costs and expenses in relation to this matter.

      Pleas in law and main arguments

   By means of present application, the applicant seeks the partial annulment of Commission Decision 2009/95/EC of 12 December 2008 adopting, pursuant to Council Directive 92/43/EEC, a second updated list of sites of Community importance for the Mediterranean biogeographical region (notified under document number C(2008) 8049) (1) insofar as it designates ES6120032 “Estrecho oriental” site so as to include Gibraltar Territorial Waters (both within and outside UKGIB0002) and an area of the High Seas.
   The applicant puts forward the following pleas in law in support of its claims.
   First, the applicant submits that the contested decision is in breach of the EC Treaty in that:

               —

               the Commission made manifest errors of law in that, in breach of Article 299 EC, it has designated an area of one Member State, British Gibraltar Territorial Waters, as forming part of another Member State, Spain;

               —

               it was adopted in breach of Articles 3(2) and 4(1) of the Directive 92/43/ECC (2) and in manifest violation of the scheme of that directive, as it purports to attribute “site of Community importance” status to a large part of the site ES6120032 which is not in Spanish territory and which is national to another Member State and in clear breach of Article 2 of the same directive to a part of the High Seas which do not form part of the European territory of Member States and over which Spain does not, and cannot, exercise any jurisdiction or sovereignty;

               —

               it contains an error in law in that it purports to grant “site of Community importance” status and Directive 92/43/ECC obligations to parts of ES6120032, being under Spanish sovereignty, which overlap with UKGIB0002, being under United Kingdom sovereignty, thereby purporting to apply two separate and distinct legal, penal, administrative and monitoring regimes in the same site area;

               —

               it was adopted in breach of Article 300(7) EC and provisions of Part XII of the United Nations Convention on the Law of the Sea 1982 (UNICLOS), the Barcelona Convention on the Protection of the Mediterranean Sea 1976 and the 1995 Protocol to that Convention as it requires Spain to comply with the same environmental obligations in the part of British Gibraltar Territorial Waters included in ES6120032 as are required to be complied with by the UK/Gibraltar in the same area;

         Second, the applicant claims that the contested decision is vitiated by manifest errors of facts which lead the Commission to an improper application of the law and infringements of the EC Treaty since it is based on information which is false and misleading.
   Third, the applicant contends that the contested decision was adopted in breach of the principle of legal certainty in that the automatic effect of the “overlapping” designation of the sites is to apply two systems of law (Gibraltar’s and Spain’s law implementing the Directive 92/43/ECC) in the same area for the same purpose.
   In the alternative, the applicant claims that the contested decision was adopted in breach of the principles set for in Articles 2, 3, 89 and 137(1) UNICLOS as a matter of customary international law. As a further alternative, it submits that the decision, to the extent it designates ES6120032 as encompassing British Gibraltar Territorial Waters is in breach of the principle of customary international law that the territorial sea extends, as a minimum, to three nautical miles.

      (1)  OJ 2009 L 43, p. 393

      (2)  Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora, OJ 1992 L 206, p. 7


title: Case C-287/08: Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others

text:
               13.9.2008

               EN

               Official Journal of the European Union

               C 236/9

         Reference for a preliminary ruling from the Tribunale ordinario di Milano (Italy) lodged on 30 June 2008 — Crocefissa Savia and Others v Ministero dell'Istruzione, dell'Università e della Ricerca and Others
   (Case C-287/08)
   (2008/C 236/13)
   Language of the case: Italian
   Referring court
   Tribunale ordinario di Milano (Italy)
   Parties to the main proceedings

      Applicants: Crocefissa Savia, Monica Maria Porcu, Ignazia Randazzo, Daniela Genovese and Mariangela Campanella

      Defendants: Ministero dell'Istruzione, dell'Università e della Ricerca, Direzione Didattica II Circolo — Limbiate, Ufficio Scolastico Regionale per la Lombardia, Direzione Didattica III Circolo — Rozzano, Direzione Didattica IV Circolo — Rho, Istituto Comprensivo — Castano Primo, Istituto Comprensivo A. Manzoni — Rescaldina
   Questions referred

               1.

               Is it permissible for the legislature of a Member State of the European Union to adopt a rule which purports to provide an authentic interpretation but which in reality introduces substantive innovation and, in particular, attributes to the legislation purportedly interpreted effects other than those previously attributed to it in the majority of judicial decisions concerning the substance and by the consolidated case-law of the supreme courts?

               2.

               Can the answer to Question 1 be affected by the possibility that the rule referred to may be classed as genuinely interpretative — rather than as introducing innovation with retroactive effect — in that it reflects the way in which the original legislation was construed in a minority series of judicial decisions concerning the substance even though that has repeatedly been contradicted by the supreme courts?

               3.

               If the answer is affirmative, what — for the purposes of appraising the compatibility of such a rule with Community law and, in particular, with the principles governing the ‘fairness’ of judicial proceedings — are the implications in either case of the fact that the Member State itself is a party to the proceedings and application of the rule de facto in force requires the court seised to dismiss the forms of order sought against that State?

               4.

               What guidance can be given as regards the ‘overriding reasons of public interest’ capable of justifying — as the case may be, even in derogation from the answer which should in principle be given to Questions 1, 2 and 3 — recognition of the retroactive effects of a statutory provision concerning civil law matters as well as private law relationships, albeit established with a body governed by public law?

               5.

               Could those reasons include organisational considerations analogous to those referred to by the Italian Court of Cassation in Judgments Nos 618/2008, 677/2008 and 11922/2008 in order to justify — on grounds, in particular, of the need to ‘regulate a wide-ranging organisational restructuring operation’ — adoption of the rule intended to regulate, six years after it had taken place, the transfer to the State of the ATAs employed by the local authorities?

               6.

               In any event, is it for the national courts to identify, where the national law is silent on the point, the ‘overriding reasons of public interest’ which — in the case of proceedings pending and in derogation from the principle of equality of arms — could justify the adoption of a retroactive rule capable of reversing the outcome of the proceedings, or must the national courts confine themselves to assessing the compatibility with Community law of the reasons expressly invoked by the legislature of the State as a basis for its choices?


title: Case T-78/01: Action brought on 30 March 2001 by INNOVA — Centro Euromediterraneo per lo Sviluppo Sostenibile v Commission of the European Communities

text:
14.7.2001               EN                     Official Journal of the European Communities                                       C 200/57
                                                         COURT OF FIRST INSTANCE
Action brought on 2 March 2001 by Saffron Investments                     The Court of First Instance dismissed the applications while
N.V. against the Commission of the European Communi-                      slightly reducing the fines (2). As a result of that judgment,
                                 ties                                     CMBT Investments N.V. (later known as Saffron Investments
                                                                          N.V), to which CMB Transport N.V.’s obligation to pay the fine
                                                                          had been transferred, and Dafra Lines A/S paid a total amount
                           (Case T-50/01)                                 of EUR 12 033 177,49, covering the amount of the fine plus
                                                                          interest as from the date of the judgment.
                         (2001/C 200/107)
                                                                          The Court of Justice later annulled Articles 6 and 7 of the
                                                                          Cewal Decision in so far as they imposed a fine on CMB N.V.
                   (Language of the case: English)                        and on Dafra Lines A/S (3). As a result of that judgment, the
                                                                          Commission reimbursed the applicant the amount of EUR
                                                                          12 033 177,49 which had originally been paid. However, the
An action against the Commission of the European Communi-                 Commission did not pay any interest or reimburse the costs of
ties was brought before the Court of First Instance of the                the bank guarantee that had initially been obtained in order to
European Communities on 2 March 2001 by Saffron Invest-                   cover the amount of the fines and its interests.
ments N.V., represented by Denis Waelbroeck and Isabelle
Buelens, of Liedekerke Siméon Wessing Houthoff, Brussels                  By letter of 29 December 2000, the Commission replied to
(Belgium).                                                                the applicant’s request for payment of interest and the costs
                                                                          relating to the bank guarantees, stating that it had no obligation
The applicant claims that the Court should:                               to pay such interest or to refund the costs for the bank
                                                                          guarantees.
—     annul the decision of 29 December 2000 of the Com-
      mission, refusing to pay interest (and in particular interest       The applicant seeks the annulment of the Commission’s
      at a rate of 11,25 % pending an appeal and at a rate of             decision and submits that the Commission has infringed Article
      13,25 % thereafter) on an amount of 12 033 177,49                   233 EC (ex Article 176), the principle of proportionality, the
      EUR, representing the fines and accrued late payment                principle of unjust enrichment and the fundamental principle
      interest paid to the Commission and refusing to reimburse           of non-discrimination. Alternatively, it seeks compensation
      the expenses incurred in providing a bank guarantee in              under Articles 235 and 288 EC for damage incurred as a result
      order to cover the amount of the fines and interest until           of the enforcement of the Cewal Decision, as subsequently
      payment on 16 December 1996;                                        annulled in regard to CMB N.V. and Dafra Lines A/S.
—     in the alternative, order the Commission, on the basis of
      Articles 235 and 288 EC, to pay an amount of EUR                    (1) Decision of 23.12.1992, Cewal, OJ L 34 of 10.2.1993, p. 20.
      5 028 037,17 as compensation for damage incurred;                   (2) Judgment of 8.10.1996, in Joined Cases T-24/93-T26/96 and
                                                                              T-28/93 Compagnie Maritime Belge Transports and Others v
                                                                              Commission [1996] ECR II-1201.
—     in any event, order the Commission to pay default interest          (3) Judgment of 16.3.2000 in Joined Cases C-395/96 P and 396/93 P
      on that amount from the date of the judgment of the                     Compagnie Maritime Belge Transports and Others v Commission
      Court, at a rate applied by the European Monetary                       [not yet available in all languages].
      Cooperation Fund on its operation in EURO as deter-
      mined on the day on which the judgment is adopted plus
      one and a half points;
—     order the Commission to bear the costs of the present
      proceedings.
                                                                          Action brought on 30 March 2001 by INNOVA —
                                                                          Centro Euromediterraneo per lo Sviluppo Sostenibile v
Pleas in law and main arguments
                                                                                Commission of the European Communities
In its Cewal Decision (1), the Commission imposed a fine of                                           (Case T-78/01)
ECU 9 600 000 on CMB N.V. and a fine of ECU 200 000 on
Dafra Lines A/S.                                                                                (2001/C 200/108)
An action was brought against the decision by CMB N.V. and
its separate legal entity for liner business, CMB Transport N.V.,                             (Language of the case: French)
on the one hand, and Dafra Lines A/S, on the other hand. Bank
guarantees were provided for the amount of the fine and                   An action against the Commission of the European Communi-
interests by both parties.                                                ties was brought before the Court of First Instance on 30 March
 ---pagebreak--- C 200/58                EN                    Official Journal of the European Communities                                          14.7.2001
2001 by INNOVA — Centro Euromediterraneo per lo Svilup-                  its obligation to pay the grants due in connection with the Una
po Sostenibile, established in Calatafimi, Italy, represented by         Festa per Aristofane project by reason of non-performance —
Denis Waelbroeck and Jennifer Waldron, Lawyers.                          which is not admitted — of obligations relating to another
                                                                         project. Nor can the suspension of payment be seen as a penalty
                                                                         within the meaning of Council Regulation (EC, Euratom) No
                                                                         2988/95 (3).
The applicant claims that the Court of First Instance, should:
                                                                         Finally, neither of the contracts provides for set-off and set-off
—     In the first place,                                                is not authorised by any provision governing the programmes
                                                                         concerned.
      —     Order the Commission to pay the grant which it
            undertook to pay under the contract concluded on             In support of its claim for annulment, the applicant claims,
            28 January 2000 in relation to the Una Festa per             inter alia, that the decision is illegal, in that it is ultra vires,
            Aristofane project,                                          lacks a proper statement of reasons, infringes the applicant’s
                                                                         rights of defence and infringes the principle of proportionality.
      —     Order the Commission to pay interest on that sum;
                                                                         (1) OJ 1999 C 163, p. 3.
—     In the alternative,                                                (2) Based on Decision 508/2000/EC of the European Parliament and
                                                                             of the Council of 14 February 2000 establishing the Culture 2000
                                                                             Programme (OJ 2000 C 63, p. 1).
      —     Annul the Commission’s decision to suspend pay-              (3) Council Regulation (EC, Euratom) No 2988/95 of 18 December
            ments in respect of the second and final phases of               1995 on the protection of the European Communities’ financial
            the grant contract in relation to the Una Festa per              interests (OJ 1995 L 312, p. 1).
            Aristofane project, notified to INNOVA by letter
            from Mrs Efterpi Verigaki of 25 January 2001,
—     Order the Commission to pay the costs in their entirety.
                                                                         Action brought on 4 May 2001 by Rodolfos Maslias
Contentions and principal arguments adduced in suppport
                                                                                against the European Parliament
                                                                                (Case T-96/01)
In June 1999 the Commission published a call for tenders (1) for
experimental events under the ‘Culture 2000’ programme (2). In
December 1999 the Commission approved a project drawn                                             (2001/C 200/109)
up by the applicant which provided for the organisation of an
event entitled Una Festa per Aristofane the purpose of which
was to spread and increase young people’s awareness of their                                 (Language of the case: Greek)
common European heritage.
                                                                         An action against the European Parliament was brought before
                                                                         the Court of First Instance of the European Communities on
After receiving the first part of the grant, the applicant sent the      4 May 2001 by Rodolfos Maslias, official of the European
Commission a request for payment of the second instalment                Parliament, represented by Professor Kharis Tagaras, Lawyer,
and, later, for payment of the balance of the financial assistance       Sagia Chambers, Likavittou 5, Athens 106 72.
granted to the project. In reply the Commission informed the
applicant that the final payment had been blocked because of             The applicant claims that the Court should:
an order for recovery of a larger sum from the applicant. That
order relate to another contract between the parties, which              —     annul:
had been terminated by the Commission. The applicant
instituted proceedings before the Belgian courts to have the                   (1) the decision of the defendant of 20 October 2000
Commission’s decision to terminate the contract annulled.                            to stop unilaterally (or, in the alternative, not to allow
                                                                                at all) the exchange of officials of 11 September
                                                                                2000 with the Greek Ministry of Culture (on the
                                                                                basis of which the applicant, as an official of the
The applicant claims that the Commission is in breach of its                         defendant, was exchanged with an official of the
contractual and legislative obligations. The contracts are                           Ministry of Culture);
separate and non-performance of obligations under one con-
tract cannot justify the suspension of obligations arising from                (2) the decision of the defendant not to pay the
the other. No provision of either contract or of the regulations                     applicant his rightful remuneration for the period
governing those contracts allows the Commission to suspend                           from 16 September 2000 to 15 November 2000;


title: JUDGMENT OF THE COURT (Fifth Chamber) of 16 July 1998 in Case C-287/96 (reference for a preliminary ruling from the Bundesfinanzhof): Kyritzer Stärke GmbH v. Hauptzollamt Potsdam (Agriculture - Common organisation of the markets - Production refunds - System of securities - Time limits - Primary requirement - Subordinate requirement)

text:
C 299/8               EN                Official Journal of the European Communities                                      26.9.98
court has particular difficulty in assessing the misleading             conformity with Community law or to disapply the
nature of the statement or description in question, it may              legislation in a situation falling outside the scope of
have recourse, under the conditions laid down by its own                Community law.
national law, to a consumer research poll or an expert's
report as guidance for its judgment.                               (1) OJ C 269, 14.9.1996.
(1) OJ C 247, 24.8.1996.
(2) OJ L 173, 6.7.1990, p. 5.
                                                                                JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
               JUDGMENT OF THE COURT                                                       of 16 July 1998
                        of 16 July 1998                            in Case C-287/96 (reference for a preliminary ruling from
                                                                   the Bundesfinanzhof): Kyritzer Stärke GmbH v.
in Case C-264/96 (reference for a preliminary ruling from                             Hauptzollamt Potsdam (1)
the House of Lords): Imperial Chemical Industries plc
(ICI) v. Kenneth Hall Colmer (Her Majesty's Inspector of           (Agriculture Ð Common organisation of the markets Ð
                            Taxes) (1)                             Production refunds Ð System of securities Ð Time limits
                                                                       Ð Primary requirement Ð Subordinate requirement)
(Right of establishment Ð Corporation tax Ð Surrender
by one company to another company in the same group of                                      (98/C 299/14)
tax relief on trading losses Ð Residence requirement
imposed on group companies Ð Discrimination according                              (Language of the case: German)
to the place of the corporate seat Ð Obligations of the
                        national court)
                                                                     (Provisional translation; the definitive translation will be
                         (98/C 299/13)
                                                                             published in the European Court Reports)
                (Language of the case: English)                    In Case C-287/96: reference to the Court under Article 177
                                                                   of the EC Treaty from the Bundesfinanzhof for a
                                                                   preliminary ruling in the proceedings pending before that
In Case C-264/96: reference to the Court under Article 177
                                                                   court between Kyritzer Stärke GmbH and Hauptzollamt
of the EC Treaty from the House of Lords (United
                                                                   Potsdam, on the interpretation of Commission Regulation
Kingdom) for a preliminary ruling in the proceedings
                                                                   (EEC) No 2220/85 of 22 July 1985 laying down common
pending before that court between Imperial Chemical
                                                                   detailed rules for the application of the system of
Industries plc (ICI) and Kenneth Hall Colmer (Her
                                                                   securities for agricultural products (2) in conjunction with
Majesty's Inspector of Taxes), on the interpretation of
                                                                   Commission Regulation (EEC) No 1722/93 of 30 June
Articles 5 and 52 of the EC Treaty Ð the Court,
                                                                   1993 laying down detailed rules for the application of
composed of: G. C. Rodríguez Iglesias, President, H.
                                                                   Council Regulations (EEC) No 1766/92 and (EEC)
Ragnemalm, M. Wathelet (Rapporteur) and R. Schintgen,
                                                                   No 1418/76 concerning production refunds in the cereals
Presidents of Chambers, G. F. Mancini, J. C. Moitinho de
                                                                   and rice sectors respectively (3) Ð the Court (Fifth
Almeida, J. L. Murray, D. A. O. Edward, P. Jann, L.
                                                                   Chamber), composed of: C. Gulmann, President of
Sevón and K. M. Ioannou, Judges; G. Tesauro, Advocate
                                                                   Chamber, M. Wathelet, D. A. O. Edward, P. Jann
General; L. Hewlett, Administrator, for the Registrar, has
                                                                   (Rapporteur) and L. Sevón, Judges; P. LeÂger, Advocate
given a judgment on 16 July 1998, in which it has ruled:
                                                                   General; L. Hewlett, Administrator, for the Registrar, has
                                                                   given a judgment on 16 July 1998, in which it has ruled:
1. Article 52 of the EC Treaty precludes legislation of a
    Member State which, in the case of companies                   Article 10(1) of Commission Regulation (EEC) No 1722/
    established in that State belonging to a consortium            93 of 30 June 1993 laying down detailed rules for the
    through which they control a holding company, by               application of Council Regulations (EEC) No 1766/92
    means of which they exercise their right to freedom of         and (EEC) No 1418/76 concerning production refunds in
    establishment in order to set up subsidiaries in other         the cereals and rice sectors respectively is to be interpreted
    Member States, makes a particular form of tax relief           as follows:
    subject to the requirement that the holding company's
    business consists wholly or mainly in the holding of
    shares in subsidiaries that are established in the             Ð the use of a product falling within CN code
    Member State concerned;                                             3505 10 50, as prescribed by that provision,
                                                                        constitutes a primary requirement within the meaning
                                                                        of Article 20(2) of Commission Regulation (EEC)
2. in circumstances such as those in point in the main                  No 2220/85 of 22 July 1985 laying down common
    proceedings, Article 5 of the EC Treaty does not                    detailed rules for the application of the system of
    require the national court to interpret its legislation in          securities for agricultural products,
 ---pagebreak--- 26.9.98               EN                  Official Journal of the European Communities                                      C 299/9
Ð compliance with that requirement must be proved                    That presupposes, however:
     within the time limits laid down in Article 28 of that
     Regulation, failing which the whole of the security
     becomes forfeit pursuant to Article 22(1) and (2) of            Ð that the good faith of the recipient has first been
     that Regulation.                                                     established, and
(1) OJ C 318, 26.10.1996.
(2) OJ L 205, 3.8.1985, p. 5.                                        Ð that the conditions prescribed are the same as those
(3) OJ L 159, 1.7.1993, p. 112.                                           which apply with respect to the recovery of purely
                                                                          national financial benefits.
                                                                     (1) OJ C 318, 26.10.1996.
               JUDGMENT OF THE COURT
                        (Fifth Chamber)
                        of 16 July 1998
                                                                                JUDGMENT OF THE COURT
in Case C-298/96 (reference for a preliminary ruling from                                    of 16 July 1998
the Verwaltungsgericht Frankfurt am Main): Oelmühle
Hamburg AG, Jb. Schmidt Söhne GmbH & Co. KG v.                       in Case C-355/96 (reference for a preliminary ruling from
     Bundesanstalt für Landwirtschaft und Ernährung (1)              the Oberster Gerichtshof): Silhouette International
                                                                                Schmied GmbH & Co. KG v. Hartlauer
(Unduly paid Community subsidy Ð Recovery Ð                                            Handelsgesellschaft mbH (1)
    Application of national law Ð Conditions and limits)
                                                                     (Directive 89/104/EEC Ð Exhaustion of trade mark Ð
                         (98/C 299/15)
                                                                     Goods put on the market in the Community or in a non-
                                                                                member country)
               (Language of the case: German)                                                 (98/C 299/16)
  (Provisional translation; the definitive translation will be                       (Language of the case: German)
          published in the European Court Reports)
                                                                       (Provisional translation; the definitive translation will be
In Case C-198/96: reference to the Court under Article 177
of the EC Treaty from the Verwaltungsgericht Frankfurt                         published in the European Court Reports)
am Main for a preliminary ruling in the proceedings
pending before that court between Oelmühle Hamburg
AG, Jb. Schmidt Söhne GmbH & Co. KG and                              In Case 355/96: reference to the Court under Article 177
Bundesanstalt für Landwirtschaft und Ernährung, on the               of the EC Treaty from the Oberster Gerichtshof for a
principles of Community law applicable to measures taken             preliminary ruling in the proceedings pending before that
by national authorities for the recovery of an unduly paid           court between Silhouette International Schmied GmbH &
Community subsidy Ð the Court (Fifth Chamber),                       Co. KG and Hartlauer Handelsgesellschaft mbH, on the
composed of: C. Gulmann, President of Chamber, M.                    interpretation of first Council Directive 89/104/EEC of
Wathelet, D. A. O. Edward, P. Jann (Rapporteur) and L.               21 December 1988 to approximate the laws of the
Sevón, Judges; P. LeÂger, Advocate General; H. von                   Member States relating to trade marks (2) as amended by
Holstein, Deputy Registrar, has given a judgment on                  the Agreement on the European Economic Area of 2 May
16 July 1998, in which it has ruled:                                 1992 (3) Ð the Court, composed of: G. C. Rodríguez
                                                                     Iglesias, President, C. Gulmann (Rapporteur), M. Wathelet
                                                                     and R. Schintgen, Presidents of Chambers, G. F. Mancini,
Community law does not in principle preclude national                L. Sevón and K. M. Ioannou, Judges; F. G. Jacobs,
legislation from allowing recovery of unduly paid                    Advocate General; H. von Holstein, Deputy Registrar, has
Community subsidies to be barred, on the basis of criteria           given a judgment on 16 July 1998, in which it has ruled:
such as loss of the enrichment, where:
                                                                     1. national rules providing for exhaustion of trade-mark
Ð the recipient of the subsidy had already, at the time                   rights in respect of products put on the market outside
     when it was granted, passed on the pecuniary                         the EEA under that mark by the proprietor or with its
     advantage resulting from it by paying the producer the               consent are contrary to Article 7(1) of first Council
     target price prescribed by Community law, and                        Directive 89/104/EEC of 21 December 1988 to
                                                                          approximate the laws of the Member States relating to
                                                                          trade marks, as amended by the Agreement on the
Ð any right or recourse against his suppliers is worthless.               European Economic Area of 2 May 1992;


title: Case T-320/07: Order of the Court of First Instance of 5 March 2009 — Jones and Others v Commission

text:
               18.4.2009

               EN

               Official Journal of the European Union

               C 90/38

         Order of the Court of First Instance of 5 March 2009 — Jones and Others v Commission
   (Case T-320/07) (1)

   2009/C 90/61

      Language of the case: English

   The President of the Sixth Chamber has ordered that the case be removed in part from the register.

      (1)  OJ C 247, 20.10.2007.


title: Reference for a preliminary ruling from the Sozialgericht Aachen - 13th Chamber - by order of that court of 24 July 1996 in the case of Sema Sürül v. Bundesanstalt für Arbeit, Nürnberg (Case C-262/96)

text:
14. 9 . 96         I EN 1                Official Journal of the European Communities                                  No C 269/ 19
and C. Impens and the Council of the European Union was             — Absence of the conditions necessary in law for liability to
brought before the Court of Justice of the European                      arise and, in the alternative, breach of the principle of
Communities on 23 July 1996 by the Council of the                        proportionality.
European Union , represented by Jean-Paul Jacqué, Diego
Canga Fano and Therese Blanchet, with an address for                (') Case C-412/92 P Parliament v . Meskens [ 1994 ] ECR I ,
service in Luxembourg at the offices of B. Eynard, European              p . 3757 .
Investment Bank .
The appellant claims that the Court should :
— annul the judgment given by the Court of First Instance           Reference for a preliminary ruling by the Corte d'Appello
                                                                    ( Sezione Prima Civile ), Venice, by order of that court of
    on 26 June 1996 in Case T-91 /95 de Nil and Impens v.
                                                                    9 May 1996, in the case of Conserchimica SRL v.
    Council of the European Union,                                             Amministrazione delle Finanze dello Stato
— give judgment upholding the claims put forward by the                                       Case C-261 /96 )
    Council at first instance, that is to say :                                                ( 96/C 269/39 )
    — dismiss the application and the claims for                    Reference has been made to the Court of Justice of the
        compensation therein ,                                      European Communities by order of the Corte d'Appello
                                                                    ( Sezione Prima Civile ) ( Court of Appeal, first Civil
    — order the applicants before the Court of First                Division ), Venice, of 9 May 1 996, which was received at the
        Instance to pay the costs of those proceedings,             Court Registry on 24 July 1996 , for a preliminary ruling in
                                                                    the case of Conserchimica SRL v. Amministrazione delle
— make an appropriate order as regards the costs before             Finanze dello Stato on the following question :
    the Court of Justice.
                                                                    Does Article 2 of Council Regulation ( EEC ) No 1 697/79 ( 1 )
                                                                    of 24 July 1 979 , which prescribes a three-year period for the
Pleas in law and main arguments adduced in support:                 recovery of duties not collected , also apply to situations
                                                                    where the conditions were satisfied before 1 July 1980, the
— Infringement of Article 176 of the EC Treaty : the                date on which that Regulation entered into force pursuant
    approach adopted by the Court of First Instance,                to Article 11 thereof ?
    consisting, on the one hand, in noting that the
    Community judicature may not determine the measures             (M OJ No L 197, 3 . 8 . 1979 , p . 1 .
    required to comply with a judgment and, on the other
    hand , in specifying after the event the measures that it
    considers the Council could have provided for, is
    contradictory in law . That approach affectively negates
    the case-law on the institutions ' discretion to determine
    the measures necessary to comply with a judgment.               Reference for a preliminary ruling from the Sozialgericht
                                                                    Aachen — 13th Chamber — by order of that court of
                                                                    24 July 1996 in the case of Sema Sürül v. Bundesanstalt für
— Infringement of Article 30 of the Staff Regulations : the
    Council organized a new competition, B/228a , in                                         Arbeit, Nürnberg
    accordance with the solution suggested in the judgment                                   ( Case C-262/96 )
    in Parliament v. Meskens ('), and the Court of First                                        ( 96/C 269/40 )
    Instance commits an error of law when it regards
    Competition B/228a as re-opening Competition                     Reference has been made to the Court of Justice of the
    B/228 .
                                                                     European Communities by order of the Thirteenth
                                                                     Chamber of the Sozialgericht ( Social Court ) Aachen of
— Breach of the principle of equal treatment: reclassifying          24 July 1996 , which was received at the Court Registry on
    the successful candidates in Competition B/228a with             26 July 1996 , for a preliminary ruling in the case of Sema
    effect from the same date as those in Competition B/228 ,        Sürül v. Bundesanstalt für Arbeit Nürnberg ( Federal
    as required by the contested judgment, would amount to           Employment Office, Nuremberg ) on the following
    treating different situations in an identical manner .           questions :
— Infringement       of   Article  45     (2)   of   the  Staff      1 . Does a Turkish national living in Germany who comes
    Regulations .                                                         within the personal scope of Article 2 of Decision
                                                                          No 3/80 of 19 September 1980 of the Association
— Infringement of Article 48 ( 2 ) of the Rules of Procedure :            Council set up pursuant to the Agreement establishing
    the Court of First Instance committed an error of law as              an Association between the European Economic
    regards the subsequent promotions of the successful                   Community and Turkey (' Decision No 3/80 '), and who
    candidates in Competiton B/228 , in that it based its                 possesses merely an Aufenthaltsbewilligung, have the
    judgment on the factual position on the date when the                 right, deriving directly from Article 3 in conjunction
    judgment was given instead of the date when the                       with Article 4 ( 1 ) ( h ) of Decision No 3/80 , to German
    application was made .                                                child benefit, in such a way that that right is conditional
 ---pagebreak--- No C 269/20           EN                   Official Journal of the European Communities                                        14 . 9 . 96
    solely on fulfilment of the conditions applying with                  administrative provisions of the Member States relating
    regard to German nationals and not on fulfilment of the               to construction projects ( 1 ), the Kingdom of Belgium has
    further conditions applying to aliens which are laid                  failed to fulfil its obligations under that Directive;
    down in the first sentence of paragraph 1 ( 3 ) of the
    Bundeskindergeldgesetz ('BKGG') in the version thereof            2 . order the Kingdom of Belgium to pay the costs .
    published in the Official Notice of 31 January 1994
    ( BGB1 . I, p. 168 )?                                             The time limit for transposition expired on 27 June
                                                                      1991 .
    Or, to phrase that question in more general terms :
                                                                      (>) OJ No L 40 , 11 . 2 . 1989 , p . 12 .
    Is a Member State prohibited from refusing a Turkish
    national who comes within the personal scope of
    Article 2 of Decision No 3/80 family benefits provided
    for under its law on the ground that that person does
    not possess an Aufenthaltsberecbtigung or an                      Reference for a preliminary ruling by the House of Lords, by
    Aufenthaltserlaubnis ?                                            order of that court of 24 July 1996 , in the case of Imperial
                                                                      Chemical Industries pic against Colmer ( Her Majesty's
2 . Is a Turkish national residing in the territory of a                                       Inspector of Taxes )
    Member State a worker within the meaning of Article 2                                        ( Case C-264/96 )
    in conjunction with Article 1 ( b ) of Decision No 3/80                                        ( 96/C 269/42 )
    during periods when, pursuant to the law of that State,
    compulsory contributions to the social security pension           Reference has been made to the Court of Justice of the
    scheme are deemed, in favour of that person , to have             European Communities by an order of the House of Lords
    been paid in respect of time spent in bringing up a               of 24 July 1996 , which was received at the Court Registry on
    child ?
                                                                      29 July 1 996 , for a preliminary ruling in the case of Imperial
                                                                      Chemical Industries pic against Colmer ( Her Majesty 's
3 . Is a Turkish national residing in the territory of a              Inspector of Taxes ), on the following questions :
    Member State who, in addition to following a course of
    studies, is employed there on the basis of a                      1.  In a situation where :
    corresponding Aufenthaltserlaubnis for up to 16 hours
    per week as an occasional worker to be regarded on that                   ( i ) a company ( company A ) is resident in a Member
    ground alone as a worker within the meaning of                                  State of the European Union;
    Article 2 in conjunction with Article 1 ( b ) of Decision
    No 3/80, or in any event because that person is insured                 ( ii ) company A is part of a consortium with another
    under a statutory accident insurance scheme against                             company ( company B ) also resident in that
    accidents at work ?                                                             Member State;
                                                                          ( iii ) companies A and B jointly own a holding company
                                                                                ( company C ) also resident in the Member State ;
                                                                          ( iv ) company C has a number of trading subsidiaries ,
                                                                                which are resident either in that Member State,
                                                                                other Member States of the European Union or
Action brought on 26 July 1996 by the Commission of the                             elsewhere in the world ; and
 European Communities against the Kingdom of Belgium
                        ( Case C-263 /96                                    ( v ) company A is precluded from being entitled to
                          ( 96/C 269/41 )                                           claim against its corporation tax liability relief in
                                                                                respect of trading losses incurred by a trading
                                                                                subsidiary ( also resident in that Member State ) of
An action against the Kingdom of Belgium was brought                                company C because the national legislation ,
before the Court of Justice of the European Communities on                          construed as a matter of national law, required
26 July 1996 by the Commission of the European                                      that the business of company C should consist
Communities, represented by Hendrik van Lier, Legal                                 wholly or mainly in the holding of shares in
Adviser in the Commission, acting as Agent, with an address                         subsidiaries which are resident in that Member
for service in Luxembourg at the office of C. Gomez de la                           State .
Cruz, of the Legal Service of the Commission of the
European Communities, Wagner Centre, Kirchberg .                      Does the requirement identified at ( v ) constitute a restriction
                                                                      on the freedom of establishment under Article 52 of the EC
                                                                      Treaty ? If so, is such treatment nevertheless justified under
The applicant claims that the Court should :                          Community law ?
1 . declare that, by failing to adopt the laws, regulations and       2 . If the requirement under ( v ) is an unjustified restriction
    administrative measures necessary in order to comply                  under Community law, does Article 5 of the EC Treaty
    with Council Directive 89/ 106/EEC of 21 December                     require a national court to interpret the relevant
    1988 on the approximation of laws , regulations and                   national legislation, so far as is possible, so as to comply


title: Case C-218/13: Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 24 April 2013 — Banco Santander SA, Santander Consumer Bank AG v Deutscher Sparkassen- und Giroverband e.V.

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/9

         Request for a preliminary ruling from the Bundespatentgericht (Germany) lodged on 24 April 2013 — Banco Santander SA, Santander Consumer Bank AG v Deutscher Sparkassen- und Giroverband e.V.
   (Case C-218/13)
   2013/C 189/18
   Language of the case: German

      Referring court

   Bundespatentgericht

      Parties to the main proceedings

      Appellants: Banco Santander SA, Santander Consumer Bank AG

      Respondent: Deutscher Sparkassen- und Giroverband e.V.

      Interested party: Deutsches Patent- und Markenamt

      Questions referred

               1.

               Does Article 3(1) and (3) of the directive (1) preclude an interpretation of national law according to which, for an abstract colour mark (in this case: red HKS 13) which is claimed for services in the financial affairs sector, a consumer survey must indicate an adjusted degree of association of at least 70 % in order to form a basis for the assumption that the trade mark has acquired a distinctive character following the use which has been made of it?

               2.

               Is the first sentence of Article 3(3) of the directive to be interpreted to the effect that the time at which the application for the trade mark was filed — and not the date on which it was registered — is also relevant in the case where the trade mark proprietor claims, in his defence against an application for a declaration invalidating the trade mark, that the trade mark acquired a distinctive character, following the use made of it, in any event more than three years after the application, but prior to registration?

               3.

               In the event that, also under the abovementioned conditions, the time at which the application was filed is relevant:
               Is the trade mark to be declared invalid if it is not clarified, and can no longer be clarified, whether it had acquired a distinctive character, following the use made of it, at the time when the application was filed? Or does the declaration of invalidity require the applicant seeking that declaration to prove that the trade mark had not acquired a distinctive character, following the use made of it, at the time when the application was filed?

      (1)  Directive 2008/95/EC of the European Parliament and of the Council of 22 October 2008 to approximate the laws of the Member States relating to trade marks (OJ 2008 L 299, p. 25).


C 95/22               EN                     Official Journal of the European Communities                                  24.3.2001
In support of her claims, the applicant alleges absence of or           Case T-72/00, Steffen Skovmand v Commission of the Euro-
insufficient reasons given by the selection board for changing          pean Communities.
the criteria for marking the tests in question by reducing the
averages for the points to be obtained for those tests, contrary        (1) OJ C 135 of 13.5.00.
to Article 5 of Annex 3 to the Staff Regulations.
                                                                              Removal from the Register of Case T-143/00 (1)
       Removal from the Register of Case T-19/00 (1)
                                                                                (2001/C 95/45)
                         (2001/C 95/43)
                                                                                (Language of the case: French)
                  (Language of the case: French)
                                                                        By order of 14 November 2000, the President of the Fourth
By order of 20 November 2000, the President of the Third                Chamber of the Court of First Instance of the European
Chamber of the Court of First Instance of the European                  Communities has ordered the removal from the Register of
Communities has ordered the removal from the Register of                Case T-143/00, Sylvia Haupt v Commission of the European
Case T-19/00, Jean Demaeght and Others v Court of Justice of            Communities.
the European Communities.
                                                                        (1) OJ C 211 of 22.7.00.
(1) OJ C 135 of 13.5.00.
                                                                              Removal from the Register of Case T-237/00 R
       Removal from the Register of Case T-72/00 (1)
                                                                                (2001/C 95/46)
                         (2001/C 95/44)
                                                                                (Language of the case: French)
                  (Language of the case: French)
                                                                        By order of 9 October 2000, the President of the Court of First
By order of 10 November 2000, the President of the Third                Instance of the European Communities has ordered the
Chamber of the Court of First Instance of the European                  removal from the Register of Case T-237/00 R, Patrick
Communities has ordered the removal from the Register of                Reynolds v European Parliament.


title: JUDGMENT OF THE COURT (Sixth Chamber) of 23 January 1997 in Case C-314/95 Commission of the European Communities v. Italian Republic (Failure by a Member State to fulfil its obligations - Failure to transpose directives concerning public health and animal health into national law)

text:
8 . 3 . 97           I EN 1                  Official Journal of the European Communities                                     No C 74/7
     accordance with Article 8 (1 ) (b) of Regulation (EEC)                              JUDGMENT OF THE COURT
      No 1768/92, an application for a certificate must not                                       ( Sixth Chamber)
      be refused on that ground alone.
                                                                                of 23 January 1997
H OJ No C 208 , 12 . 8 . 1995 .                                                 in Case C-3 14/95 Commission of the European
                                                                                Communities v. Italian Republic ( 1 )
                                                                        (Failure by a Member State to fulfil its obligations —
                                                                        Failure to transpose directives concerning public health
                                                                                and animal health into national law)
                                                                                97/C 74/ 13 )
               JUDGMENT OF THE COURT
                        ( Second Chamber)                                                 (Language of the case: Italian)
                       of 23 January 1997
in Case C-246/95 (reference for a preliminary ruling from                 (Provisional translation; the definitive translation will be
the Conseil d'Etat of the Kingdom of Belgium): Myrianne                             published in the European Court Reports)
                    Coen v. Belgian State ( ! )
(Temporary staff — Recruitment procedure — Member                       In Case C-314/95 : Commission of the European
States invited to propose candidates — Actions before the               Communities (Agent: Eugenio de March) v. Italian
                           national courts)                             Republic ( Agent: Umberto Leanza assisted by Pier Giorgio
                                                                        Ferri ) — application for a declaration that, by not
                             ( 97/C 74/ 12 )                            adopting within the prescribed periods the laws,
                                                                        regulations and administrative provisions necessary to
                                                                        comply with Council Directives 92/45/EEC ( OJ No L 268 ,
                 (Language of the case: French)                         14 . 9 . 1992, p. 35 ), 92/46/EEC ( OJ No L 268 , 14 . 9 .
                                                                        1992, p. 1 ), 92/65/EEC ( OJ No L 268 , 14 . 9. 1992, p. 54 ),
                                                                        92/88/EEC ( OJ No L 321 , 6 . 11 . 1992, p . 24 ), 92/ 116/
                                                                        EEC ( OJ No L 62, 15 . 3 . 1993 , p . 1 ), 92/117/EEC ( OJ No
   (Provisional translation; the definitive translation will be         L 62, 15 . 3 . 1993 , p. 38 ) and 92/118/EEC ( OJ No L 62,
           published in the European Court Reports)                     15 . 3 . 1993 , p. 49 ), the Italian Republic has failed to fulfil
                                                                        its obligations under those Directives and under the EC
                                                                        Treaty — the Court ( Sixth Chamber ), composed of: G. F.
                                                                        Mancini, President of the Chamber, J. L. Murray, C. N.
In Case C-246/95 : reference to the Court under Article 177             Kakouris ( Rapporteur ), G. Hirsch and H. Ragnemalm,
of the EC Treaty from the Conseil d'Etat of the Kingdom                 Judges; D. Ruiz-Jarabo Colomer, Advocate-General; H.
of Belgium for a preliminary ruling in the proceedings                  von Holstein, Administrator for the Registrar, has given a
pending before that court between Myrianne Coen and                     judgment on 23 January 1997 in which it:
Belgian State — on the interpretation of Article 179 of the
EC Treaty and of the Staff Regulations of Officials of the
European Communities — the Court ( Second Chamber),                     1 . declares that, by not adopting within the prescribed
composed of: G. F. Mancini, President of the Chamber, G.                     periods the laws, regulations and administrative
Hirsch and R. Schintgen ( Rapporteur), Judges; N.                            provisions necessary to comply with :
Fennelly, Advocate-General; H. von Holstein, Deputy
Registrar, for the Registrar, has given a judgment on
                                                                             — Council Directive 92/45/EEC of 16 June 1992 on
23 January 1997, in which it has ruled:
                                                                                public health and animal health problems relating
                                                                                to the killing of wild game and the placing on the
                                                                                market of wild-game meat,
Article 1 79 of the EC Treaty and Articles 90 and 91 of
the Staff Regulations are to be interpreted as meaning that
                                                                             — Council Directive 92/46/EEC of 16 June 1992
the periods which those provisions prescribe for
                                                                                laying down the health rules for the production
 challenging a decision of the Commission cannot be
                                                                                and placing on the market of raw milk, heat
caused to run afresh by a judgment given by a court of a
                                                                                treated milk and milk-based products,
Member State finding an act of that State unlawful, where
 the act in question may have influenced the Commission
 decision which is to be challenged.                                         — Council Directive 92/65/EEC of 13 July 1992
                                                                                laying down animal health requirements governing
                                                                                trade in and imports into the Community of
 (') OJ No C 248 , 23 . 9 . 1995 .
                                                                                animals, sperm, ova and embryos not subject to
                                                                                animal health requirements laid down in specific
                                                                                Community rules referred to in Annex A (I) to
                                                                                Directive 90/425/EEC,
 ---pagebreak--- No C 74/8                EN                  Official Journal of the European Communities                                    8 . 3 . 97
      — Council Directive 92/88/EEC of 26 October 1992                  ( Supreme Court of the Netherlands) for a preliminary
           amending Directive 74/63/EEC on undesirable                  ruling in the proceedings pending before that court
           substances and products in animal nutrition,                 between E. J. M. de Jaeck and Staatssecretaris van Finan
                                                                        cien — on the interpretation of Articles 14 ( a ) and 14 ( c )
                                                                        of Council Regulation ( EEC ) No 1408/71 of 14 June 1971
       — Council Directive 92/116/EEC of 17 December
                                                                        on the application of social security schemes to employed
           1992 amending and updating Directive 71 /118/                persons, to self-employed persons and to members of their
           EEC on health problems affecting trade in fresh              families moving within the Community, as amended and
           poultrymeat,                                                 updated by Council Regulation ( EEC ) No 2001/83 of
                                                                        2 June 1983 ( OJ No L 230, 22. 8 . 1983 , p. 6 ) — the
       — Council        Directive      92/117/EEC      concerning       Court ( Fifth Chamber), composed of: L. Sevon, President
           measures for protection against specific zoonoses            of the First Chamber, acting as President of the Fifth
           and specified zoonotic agents in animals and                 Chamber, D. A. O. Edward, J. -P. Puissochet ( Rapporteur ),
           products of animal origin in order to prevent                P. Jann and M. Wathelet, Judges; D. Ruiz-Jarabo Colomer,
           outbreaks      of food-borne         infections    and       Advocate-General; H. A. Riihl, Principal Administrator,
           intoxications,                                               for the Registrar, has given a judgment on 30 January
                                                                        1997, in which it has ruled:
       — Council Directive 92/118/EEC laying down animal
           health and public health requirements governing
           trade in and imports into the Community of
           products not subject to the said requirements laid           1 . For the purposes of Articles 14 (a) and 14 (c) of
           down in specific Community rules referred to in                   Regulation (EEC) No 1408/71 of the Council of
           Annex A (I) to Directive 89/662/EEC and, as
                                                                             14 June 1971 on the application of social security
           regards pathogens, to Directive 90/425/EEC,                       schemes to employed persons, to self-employed
                                                                             persons and to members of their families moving
                                                                             within the Community, as amended and updated by
       the Italian Republic has failed to fulfil its obligations             Council Regulation (EEC) No 2001 /83 of 2 June
       under Articles 23, 32, 29, 2, 3, 17 and 20 respectively               1983, 'employed' and 'self-employed' should be
       of those Directives;                                                  understood to refer to activities which are regarded as
                                                                             such for the purposes of the social security legislation
                                                                             of the Member State in whose territory those activities
2 . orders the Italian Republic to pay the costs.                            are pursued.
( ! ) OJ No C 315 , 25 . 11 . 1995 .
                                                                        2. Where Article 14 (c) (1 ) (b) of the Regulation is
                                                                             applicable, Community law does not preclude the
                                                                             legislation of one of the two Member States from
                                                                             insuring the person in question against only some of
                 JUDGMENT OF THE COURT                                       the risks covered by its social security scheme,
                                                                             provided that there is no discrimination in that regard
                           ( Fifth Chamber)
                                                                             between nationals of that State and nationals of the
                         of 30 January 1997                                  other Member States.
in Case C-340/94 (reference for a preliminary ruling from
the Hoge Raad der Nederlanden): E. J. M. de Jaeck v.
                 Staatssecretaris van Financiën (M
(Social security for migrant workers — Determination of                 3 . Where Article 14 (c) (I ) (b) of the Regulation applies,
the legislation applicable — Definition of employed and                      Community law does not preclude one of the two
                             self-employed)                                  Member States from determining the amount of
                                                                             contributions to be paid by an insured person who
                              ( 97/C 74/ 14                                  works in that State for only part of the working week,
                                                                             without taking into account contributions which that
                                                                             person may pay in another Member State in respect of
                  (Language of the case: Dutch)                              work performed there during the rest of the week .
    (Provisional translation; the definitive translation will be        H OJ No C 392, 31 . 12 . 1994 .
            published in the European Court Reports)
In Case C-340/94 : reference to the Court under Article 177
of the EC Treaty from the Hoge Raad der Nederlanden


title: Case T-35/08: Action brought on 24 January 2008 — Codorniu Napa v OHIM — Bodegas Ontañón (ARTESA NAPA VALLEY)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/33

         Action brought on 24 January 2008 — Codorniu Napa v OHIM — Bodegas Ontañón (ARTESA NAPA VALLEY)
   (Case T-35/08)
   (2008/C 92/67)
   Language in which the application was lodged: Spanish
   Parties

      Applicant: Codorniu Napa, Inc. (California, United States of America) (represented by: X. Fàbrega Sabaté and M. Curell Aguilà, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Bodegas Ontañón, S.A.
   Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (OHIM) of 20 November 2007 in Case R 747/2006-4, and

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant.

      Community trade mark applied for: Figurative mark ‘ARTESA NAPA VALLEY’ for goods in Class 33 (application No 3.079.159)

      Proprietor of the mark or sign cited in the opposition proceedings: Bodegas Ontañón, S.A.

      Mark or sign cited in the opposition proceedings: Community figurative trade mark No 2.050.623 ‘ARTESO’ for goods in Classes 33 and 35, Spanish word mark No 844.194 ‘LA ARTESA’ for goods in Class 33.

      Decision of the Opposition Division: Upheld the opposition and rejected the application for registration.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1) given that there is no likelihood of confusion between the signs in conflict.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case F-1/11: Action brought on 6 January 2011 — Soukup v Commission

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/36

         Action brought on 6 January 2011 — Soukup v Commission
   (Case F-1/11)
   2011/C 72/59
   Language of the case: French

      Parties

      Applicant: Zdenek Soukup (Luxembourg, Luxembourg) (represented by: E. Boigelot and S. Woog, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of the selection board of Open Competition EPSO/AD/144/09 not to enter the applicant on the reserve list and the decision to enter another candidate on that list, and compensation for the material and non-material damage thereby suffered.

      Form of order sought

               —

               Annul the decision of the selection board of Open Competition EPSO/AD/144/09 of 27 April 2010 taken after re-examination of the applicant's oral test, confirming his results in the latter, namely a mark below the minimum required and, consequently, the decision not to enter him on the reserve list;

               —

               Annul the decision of the selection board of Open Competition EPSO/AD/144/09 to admit another candidate to the written and oral tests and, subsequently, to enter him/her on the reserve list of that competition;

               —

               Annul all the operations carried out by the selection board as from the stage at which the irregularities complained of occurred;

               —

               Order the defendant to pay, by way of compensation for material and non-material damage and the adverse effect on the applicant's career, the sum of EUR 25 000, subject to increase or decrease in the course of the proceedings, plus interest at the rate of 7 % per annum as from 28 June 2010, the date of the complaint;

               —

               Order the Commission to pay the costs.


title: Case C-603/12: Request for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 21 December 2012 — Pia Braun v Region Hannover

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/7

         Request for a preliminary ruling from the Verwaltungsgericht Hannover (Germany) lodged on 21 December 2012 — Pia Braun v Region Hannover
   (Case C-603/12)
   2013/C 101/13
   Language of the case: German

      Referring court

   Verwaltungsgericht Hannover

      Parties to the main proceedings

      Applicant: Pia Braun

      Defendant: Region Hannover

      Question referred

   Does the right to freedom of movement and freedom of residence conferred on a Union citizen by Articles 20 and 21 TFEU preclude — in a case such as the present one, in which a student who still lives with her parents in a Member State neighbouring Germany and whose parents commute to Germany for work has applied for an education grant for studies in a third Member State — a regulatory system in national law under which German nationals with a permanent residence outside the Federal Republic of Germany may be awarded an education grant to attend an education establishment situated in a Member State of the European Union only if special circumstances of the individual case justify the grant and, pursuant to which, the approval of the grant is left, as to the remainder, to the discretion of the competent national authorities?


title: Case C-181/12: Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Yvon Welte v Finanzamt Velbert (Free movement of capital — Articles 56 EC to 58 EC — Inheritance tax — Deceased person and heir resident in a third country — Estate — Immovable property located in a Member State — Right to an allowance against the taxable value — Different treatment of residents and non-residents)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/11

         Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — Yvon Welte v Finanzamt Velbert
   (Case C-181/12) (1)

   (Free movement of capital - Articles 56 EC to 58 EC - Inheritance tax - Deceased person and heir resident in a third country - Estate - Immovable property located in a Member State - Right to an allowance against the taxable value - Different treatment of residents and non-residents)
   2013/C 367/18
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Yvon Welte

      Defendant: Finanzamt Velbert

      Re:

   Request for a preliminary ruling — Finanzgericht Düsseldorf — Interpretation of Articles 63 and 65 TFEU — Legislation of a Member State on inheritance tax fixing the tax-free part of the value of land at EUR 2 000 if the deceased person and the acquirer are resident in a third country, whereas the tax-free part is EUR 500 000 if either the deceased person or the acquirer is resident in the national territory

      Operative part of the judgment

   Articles 56 EC and 58 EC must be interpreted as precluding legislation of a Member State relating to the calculation of inheritance tax which provides that, in the event of inheritance of immovable property in that State, in a case where, as in the main proceedings, the deceased and the heir had a permanent residence in a third country, such as the Swiss Confederation, at the time of the death, the tax-free allowance is less than the allowance which would have been applied if at least one of them had been resident in that Member State at that time.

      (1)  OJ 2012 C 174, p. 20


title: Case C-221/10 P: Appeal brought on 7 May 2010 by Artegodan GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-429/05 Artegodan GmbH v European Commission, other party to the proceedings: Federal Republic of Germany

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/9

         Appeal brought on 7 May 2010 by Artegodan GmbH against the judgment of the General Court (Sixth Chamber) delivered on 3 March 2010 in Case T-429/05 Artegodan GmbH v European Commission, other party to the proceedings: Federal Republic of Germany
   (Case C-221/10 P)
   2010/C 195/14
   Language of the case: German

      Parties

      Appellant: Artegodan GmbH (represented by: U. Reese and A. Meyer-Sandrock, lawyers)

      Other parties to the proceedings: European Commission, Federal Republic of Germany

      Form of order sought

               —

               Annulment of the judgment of the General Court of the European Union of 3 March 2010 in Case T-429/05;

               —

               Order that the defendant pay the applicant the sum of EUR 1 430 821,36 plus interest at 8 % per annum in respect of the period from the delivery of judgment until payment in full; alternatively that the dispute as to quantum be referred back to the General Court of the European Union;

               —

               Declare the defendant liable to compensate the applicant for all damage arising in the future from the marketing efforts necessary to restore the market position of the medicinal product Tenuate Retard to that which it had prior to the withdrawal of authorisation;

               —

               Order that the defendant pay the costs

      Pleas in law and main arguments

   By judgment of 3 March 2010, the General Court of the European Union dismissed the appellant's claim for compensation in respect of the unlawful withdrawal of marketing authorisations for medicinal products. The dismissal was based on arguments that there was an insufficiently serious breach of provisions of Union law by the Commission, and that the infringement of rules on the delimitation of competence does not give rise to liability on the part of Union institutions because such rules are not designed to protect the economic interests of undertakings. The General Court also held that the relevant provision in Article 11 of Directive 65/65 was imprecise. There was hitherto no precedent for the situation which had arisen, which might logically explain the legal error which the Commission is alleged to have committed. It was also necessary to take account of the complexity of examining the expert medical and scientific report. Viewed as a whole, the legal and factual assessments to be undertaken were so complex that the infringement of Article 11 of Directive 65/65 could not be regarded as a sufficiently serious breach.
   In its appeal, the appellant argues that rules on the delimitation of competence, which limit the power of European sovereign bodies to remove existing legal positions, are designed to protect citizens and undertakings in their rights. Therefore, in the appellant's submission, infringement of the rules on the delimitation of competence should have been taken into account in the assessment as to whether a sufficiently serious breach had taken place.
   It should also be noted that the Commission had no margin of discretion in taking its decision. Moreover, the Commission did not merely enact an abstract rule, but purposely removed an existing legal position from the appellant by means of administrative action. Thus, the appellant's losses were not merely the indirect result of an abstact rule but the purpose and content of the concrete administrative measure itself. In the appellant's submission, the Commission should therefore have examined with particular thoroughness whether there was a sufficient basis for the withdrawal of the authorisation.
   That is not prevented by the priority of protecting health and the particular significance of the precautionary principle. The appellant acknowledges that those principles can justify taking and implementing immediately invasive measures against undertakings, but argues that, in order to restore balance in a State governed by the rule of law and to safeguard the proportionality principle, the possibility of appropriate compensation must be given by way of secondary legal protection.
   Nor can it be objected that it is necessary for secondary legal protection to be refused in order to enable the precautionary principle to be effectively implemented. That is because, in the circumstances of this case, the Commission had no margin for discretion. In such cases, there is no danger at the outset that implementation of the precautionary principle could be hindered by possible liability consequences.
   Nor can the lack of precision of Article 11 of Directive 65/65 be relied upon in order to deny the claim for liability. That is because, in the appellant's submission, the onus of such imprecision must be borne not by the undertaking in question but by the Community as a whole. The Community should not be allowed to defend itself against claims for compensation on the ground that it itself failed, in dereliction of its duty, to enact sufficiently clear and unambiguous rules.
   The lack of precedent cannot have an exculpatory effect either. In compensation matters, the Community organs have no privilege in the form of a ‘right to a first error’. Moreover, the General Court had already legally determined that the Commission's decision was unlawful in form and substance. Thus, at the time the Commission's decision was implemented, there was already a decision by way of precedent.
   The complexity of the factual and legal position is also not sufficient on its own to prevent there being a sufficiently serious breach. That will in any event apply in the case of a purely administrative measure, without any margin for discretion, whereby deliberate incursion is made into existing legal positions and significant material damage is thereby directly and foreseeably caused.
   Moreover, the authorities having competence for questions arising in the law of medicinal products have suitable factual and legal competence. Thus merely average complexity, which is typically inherent in disputes concerning the safety and effectiveness of medicinal products, is not sufficient to prevent there being a sufficiently serious breach.


title: Case C-29/16: Judgment of the Court (Second Chamber) of 4 May 2017 (request for a preliminary ruling from the Landgericht Stralsund — Germany) — HanseYachts AG v Port D’Hiver Yachting SARL, Société Maritime Côte D’Azur, Compagnie Generali IARD SA (Reference for a preliminary ruling — Judicial cooperation in civil matters — Regulation (EC) No 44/2001 — Article 27 — Lis pendens — Court first seised — Point 1 of Article 30 — Concept of ‘document instituting the proceedings’ or ‘equivalent document’ — Application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based)

text:
               3.7.2017

               EN

               Official Journal of the European Union

               C 213/12

         Judgment of the Court (Second Chamber) of 4 May 2017 (request for a preliminary ruling from the Landgericht Stralsund — Germany) — HanseYachts AG v Port D’Hiver Yachting SARL, Société Maritime Côte D’Azur, Compagnie Generali IARD SA
   (Case C-29/16) (1)

   ((Reference for a preliminary ruling - Judicial cooperation in civil matters - Regulation (EC) No 44/2001 - Article 27 - Lis pendens - Court first seised - Point 1 of Article 30 - Concept of ‘document instituting the proceedings’ or ‘equivalent document’ - Application for proceedings to preserve or establish, prior to any legal proceedings, evidence of facts on which a subsequent action could be based))
   (2017/C 213/12)
   Language of the case: German

      Referring court

   Landgericht Stralsund

      Parties to the main proceedings

      Applicant: HanseYachts AG

      Defendants: Port D’Hiver Yachting SARL, Société Maritime Côte D’Azur, Compagnie Generali IARD SA

      Operative part of the judgment

   Article 27(1) and point 1 of Article 30 of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning, in cases of lis pendens, that the date on which a procedure for a measure of inquiry prior to any legal proceedings was commenced cannot constitute the date on which, within the meaning of point 1 of Article 30 of that regulation, a court called upon to rule on a substantive application which was brought in the same Member State following the result of that measure was ‘deemed to be seised’.

      (1)  OJ C 136, 18.4.2016.


title: Case T-44/06: Action brought on  14 February 2006  — Commission v Elliniki Etairia Epikhirimatikis Protovoulias — Hellenic Ventures S.A. — and five other defendants

text:
               8.4.2006

               EN

               Official Journal of the European Union

               C 86/37

         Action brought on 14 February 2006 — Commission v Elliniki Etairia Epikhirimatikis Protovoulias — Hellenic Ventures S.A. — and five other defendants
   (Case T-44/06)
   (2006/C 86/75)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: M. Patakia and by S. Khatzigiannis, lawyer)

      Defendant: Elliniki Etairia Epikhirimatikis Protovoulias — Hellenic Ventures S.A., Konstantinos Katsigiannis, Panagiotis Chronopoulos, Minas Patsouris, Nikolaos Poulakos and Robert Ceurvorst
   Form of order sought
   The applicant claims that the Court should:

               —

               order the defendant company, jointly with the second to the sixth defendants, to repay to the Commission the entire amount of the advance received by the first defendant from the Community, that is, ECU (now EURO) 70 000, together with interest, calculated as laid down in the contract, amounting, until 12 February 2006, to a sum of ECU (now EURO) 103 423,54, that is, a total of ECU (now EURO) 171 939,18, as well as interest, again in accordance with the terms of the contract, of 1.5 % per month, that is, an amount of ECU (now EURO) 34.52 per day for the period from 1 January 2006 until full discharge of the sum due by the defendants;

               —

               order the defendants jointly to pay the Commission's costs, including the fees of the Commission's lawyers.

         Pleas in law and main arguments
   The European Community, represented by the European Commission, concluded with the first defendant company, in which the other defendants are shareholders and members of its Board or directors, a contract entitled ‘Seed Fund 601’, in the context of the Pilot action to create and develop seed-capital funds. (1)

   Under that contract the Commission undertook to provide to the first defendant financial support in the form of a repayable advance of a maximum amount of ECU 350 000. That advance was intended to cover a maximum limit of 50 % of the operating costs which the first defendant would incur in the context of its activities as the Fund for start-up business capital in Greece. In that context, the Commission paid to the first defendant the first annual advance of ECU 70 000.
   By letter of 16 June 1994, the Commission informed the defendant that it was rescinding the contract and asked it to repay, with interest, the amount of ECU 70 000. By letter of 19 September 1994 the Commission explained that that decision was taken as a result of the defendant's refusal to submit to a detailed inspection by the auditors of the Commission's financial control service, in breach of Article 8(1) of the contract. The Commission had decided that such an audit was indispensable in view of the findings of a Commission official who had carried out an on-the-spot inspection and had expressed serious doubts as to whether the investments which the first defendant company was supposed to have funded corresponded to the tender specifications.
   Although the first defendant was repeatedly called upon to repay the amount demanded, it failed to do so.
   By its action the Commission seeks payment of the above amount owed to it together with the interest due.

      (1)  OJ C 306 of 1.12.1988, p. 12.