title: Case C-294/99: Reference for a preliminary ruling from the Diikitiko Protodikio (Administrative Court of First Instance) (23rd Three-Member Chamber), Athens, by a decision of that court of 26 July 1999 in the case of Athinaiki Zithopiia (Athens Breweries) AF v Greek State

text:
30.10.1999               EN                       Official Journal of the European Communities                                         C 314/3
Reference for a preliminary ruling by the Tribunale di                       ‘Is it compatible with Community law, and in particular with
Trieste, First Civil Chamber, by order of 24 May 1999 in                     Directive 69/335/EEC (1), to tax over a period of years at
     the case of Crossbow Srl v Ministero delle Finanze                      the rate of 0.75 % per annum pursuant to Decree-Law
                                                                             No 394/1992 of 30 September 1992 that part of the net assets
                                                                             consisting solely of a company’s capital disclosed annually by
                           (Case C-291/99)                                   the balance sheet which has already borne the initial tax on
                                                                             contributions of 1 %?’
                           (1999/C 314/04)
Reference has been made to the Court of Justice of the
European Communities by order of 24 May 1999 from the
                                                                             (1) OJ, English Special Edition 1969 (II), p. 412.
Tribunale di Trieste (District Court, Trieste), First Civil Chamb-
er, which was received at the Court Registry on 3 August
1999, for a preliminary ruling in the proceedings between
Crossbow Srl and Ministero delle Finanze (Ministry of Finance),
on the following questions:
1. Has Article 234 of the Treaty establishing the EEC (1)
      preserved the extraterritorial legal status of the Port of
      Trieste resulting from Articles 1 to 20 of Annex VIII to the
      1947 Peace Treaty and the subsequent Memorandum of
      Understanding of 1954?
2. Does the question whether the free zones in the Port of                   Reference for a preliminary ruling from the Diikitiko
      Trieste do or do not form part of the customs territory of             Protodikio (Administrative Court of First Instance)
      the Community fall to be decided in the light of Regulation            (23rd Three-Member Chamber), Athens, by a decision of
      (EEC) No 2913/92 (2) and the earlier Regulation                        that court of 26 July 1999 in the case of Athinaiki
      No 1496/68 (3)?                                                                Zithopiia (Athens Breweries) AF v Greek State
3. Does the territorial status of those zones not fall rather to
      be determined in the light of Council Directi-                                                   (Case C-294/99)
      ve 69/75/EEC (4) and the later Regulation No 2454/93 (5)?
                                                                                (1999/C 314/06)
( 1) Article 234 of the EC Treaty: now, after amendment, Article 307
     EC.
( 2) Council Regulation, OJ L 302 of 19.10.1992, p. 1.                       Reference has been made to the Court of Justice of the
( 3) OJ, English Special Edition 1968 (II), p. 436.                          European Communities by a decision of the Administrative
( 4) OJ, English Special Edition 1969 (I), p. 86.                            Court of First Instance (23rd Three-Member Chamber), Athens,
( 5) Commission Regulation of 2.7.1993, OJ L 253 of 11.10.1993,              of 26 July 1999, received at the Court Registry on 5 August
     p. 1.                                                                   1999, for a preliminary ruling in the case of Athinaiki
                                                                             Zithopiia (Athens Breweries) AE v Greek State on the following
                                                                             question:
                                                                             Does the term ‘withholding tax’ within the meaning of
                                                                             Article 5(1) of Council Directive 90/435/EEC (1) of 23 July
                                                                             1990 cover the case provided for in national legislation where,
Reference for a preliminary ruling by the Commissione                        on distribution of profits by a subsidiary public limited
Tributaria di Primo Grado di Trento, Sezione No 6 by                         company or equivalent to its parent company, in determining
order of that court of 10 June 1999 in the case of Energy                    the taxable profits of the subsidiary, account is to be taken of
Service Srl against Direzione delle Entrate per la Provincia                 total net profits, including income subject to special tax
                               di Trento                                     entailing extinction of the tax debt and also non-taxable
                                                                             income, whereas those two categories of income would not be
                                                                             taxable on the basis of the national legislation if they remained
                           (Case C-293/99)                                   with the subsidiary and were not distributed to the parent
                                                                             company?
                           (1999/C 314/05)
Reference has been made to the Court of Justice of the
European Communities by order of the Commissione Tributa-                    (1) OJ L 225 of 20.8.1990, p. 6.
ria di Primo Grado di Trento, Sezione No 6 (Tax Court of First
Instance, Trento, Sixth Chamber) of 10 June 1999, received at
the Court Registry on 5 August 1999, for a preliminary ruling
in the case of Energy Service Srl v Direzione delle Entrate per
la Provincia di Trento on the following question:


title: Case C-92/15: Judgment of the Court (Eighth Chamber) of 12 October 2016 (request for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Sven Mathys v De Grave Antverpia NV (Reference for a preliminary ruling — Directive 96/75/EC — Systems of chartering and pricing in inland waterway transport — Scope — Article 1(b) — ‘Carrier’ — Article 2 — Freedom to conclude contracts and negotiate prices)

text:
               12.12.2016

               EN

               Official Journal of the European Union

               C 462/3

         Judgment of the Court (Eighth Chamber) of 12 October 2016 (request for a preliminary ruling from the Hof van beroep te Antwerpen — Belgium) — Sven Mathys v De Grave Antverpia NV
   (Case C-92/15) (1)

   ((Reference for a preliminary ruling - Directive 96/75/EC - Systems of chartering and pricing in inland waterway transport - Scope - Article 1(b) - ‘Carrier’ - Article 2 - Freedom to conclude contracts and negotiate prices))
   (2016/C 462/03)
   Language of the case: Dutch

      Referring court

   Hof van beroep te Antwerpen

      Parties to the main proceedings

      Appellant: Sven Mathys

      Respondent: De Grave Antverpia NV

      Operative part of the judgment

   In the context of inland waterway transport activities, Article 1(b) of Council Directive 96/75/EC of 19 November 1996 on the systems of chartering and pricing in national and international inland waterway transport in the Community, in so far as it defines a ‘carrier’ as an owner or an operator of one or more inland waterway vessels, and Article 2 of that directive, in so far as it states that, in that field, contracts are to be freely concluded between the parties concerned, must be interpreted as not precluding national legislation, such as that applicable to the dispute in the main proceedings, that would enable a person who does not correspond to that definition to conclude a contract of carriage as a carrier.

      (1)  OJ C 155, 11.5.2015.


title: Case T-44/11: Action brought on 17 January 2011 — Italy v Commission

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/29

         Action brought on 17 January 2011 — Italy v Commission
   (Case T-44/11)
   2011/C 80/54
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: L. Ventrella, avvocato dello Stato)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul in part Commission Decision C(2010) 7555, notified on 5 November 2010, excluding from Community financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF) and the European Agricultural Fund for Rural Development (EAFRD).

      Pleas in law and main arguments

   The applicant relies on three grounds in support of its action.

               1.

               First ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; distortion of facts; infringement of the principle of proportionality; infringement of Article 24(2) of Commission Regulation (EC) No 2799/1999 of 17 December 1999 laying down detailed rules for applying Regulation (EC) No 1255/1999 as regards the grant of aid for skimmed milk and skimmed-milk powder intended for animal feed and the sale of such skimmed-milk powder (OJ 1999 L 340, p. 3).
               It is submitted in this connection that the Commission applied a number of financial corrections in the skimmed milk powder sector on the basis of the allegedly incorrect application of regulatory aid reductions and sanctions. In particular, on the basis of a strict interpretation of Article 24(2) of Regulation (EC) No 2799/0999, which was incorrect and inconsistent with the spirit of that provision, it found that the quarterly check, carried out the week following that in which the irregular sample was taken, was not the special enquiry provided for by Community legislation and could not therefore act as a substitute for it. Moreover, on the basis of a small number of specific cases, the Commission made generalisations concerning any failure — wholly hypothetical — on the part of the Italian authorities to impose penalties, which also led it to distort the facts. Lastly, since the amount which, it is claimed, has not yet been paid by way of penalties is considerably below the total amount of penalties which it was intended to impose on Italy, it is impossible to understand the reasons for the application of flat-rate corrections, which are in any event disproportionate and excessive. It therefore follows that, in addition to the clear failure to state reasons, there has also been infringement of the principle of proportionality.

               2.

               Second ground, alleging infringement of essential procedural requirements (Article 269 TEU, formerly Article 253 EC), on the basis of failure to state reasons; infringement of the principle of proportionality; infringement of Article 6(3) TEU, on the basis of infringement of the fundamental principles of the protection of legitimate expectations, legal certainty and the principle of non-retroactivity of substantive rules; infringement of Article 32(5) of Council Regulation (EC) No 1290/2005 of 21 June 2005 on the financing of the common agricultural policy (OJ 2005 L 209, p. 1): infringement of the principle of ne bis in idem.
               The applicant submits in this connection that, following an investigation initiated in 2003, the Commission applied a correction to the Member State for the 2009 financial year, regarding the organisation of the recovery system of the paying agencies, which took account of the value of the cases which, as they had not yet been decided on by the Commission in accordance with the Community rules in force at the material time, it is claimed are covered by the new rules, thus making them subject to what is known as the fifty-fifty rule introduced by Regulation (EC) No 1290/2005. The financial adjustment in question is unlawful in that it made the Member State automatically liable for 50 per cent of the sums in question, in accordance with the provision in Article 32(5) of Regulation No 1290/2005, which was unlawfully applied retroactively in connection with an investigation into debt management concerning, essentially, ‘the situation as observed in 2002/2003’, as expressly acknowledged by the Commission itself. Moreover, in respect of the same cases in which checks were carried out, a financial correction of 50 % has already been applied to the Italian State under Article 32 of Regulation 1290/2005 by Commission C(2007) 1901 of 27 April 2007. By the contested decision, the Commission is applying, in respect of the same cases and on the basis of the same findings, a further specific financial correction amounting to 100 % of the claims that have not been recovered. It is therefore unlawful and wholly disproportionate to require payment of the additional 50 % by way of penalties after so many years and essentially amounts to a flagrant breach of the principle of ne bis in idem.
               Third ground, alleging that the Commission’s power to impose penalties is time-barred; the reasonable period for concluding the investigations at issue was exceeded; infringement of Article 32(5) of Regulation 1290/2005; infringement of the principle of ne bis in idem.
               In the alternative to the second ground, if, which is denied, Article 32(5) of Regulation 1290/2005, applied retroactively by the Commission to the investigations at issue, should be regarded as a procedural provision, it is submitted that the correction in question is unlawful, since it was applied after the four-year limitation period within which the Commission can exercise its powers to impose penalties. In the further alternative, it is submitted that the corrections at issue are unlawful, on the ground that the reasonable period for concluding the investigations in question was exceeded. As a result of the failure to conclude the investigations within a reasonable period (eight years after the investigations commenced), the national budget has already suffered a significant loss of revenue due to Commission Decision C(2007) 1901 to apply a 50 % flat-rate correction with regard to the same cases which are also the subject of the contested decision, amounting essentially to a flagrant breach of the principle of ne bis in idem.


title: Case C-418/11: Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria), lodged on 10 August 2011 — TEXDATA Software GmbH

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/7

         Reference for a preliminary ruling from the Oberlandesgericht Innsbruck (Austria), lodged on 10 August 2011 — TEXDATA Software GmbH
   (Case C-418/11)
   2011/C 331/11
   Language of the case: German

      Referring court

   Oberlandesgericht Innsbruck

      Party to the main proceedings

      Appellant: TEXDATA Software GmbH

      Question referred

   Does European Union law, as it stands at present, and in particular:

               1.

               the freedom of establishment laid down in Articles 49 TFEU and 54 TFEU;

               2.

               the general legal principle (Article 6(3) TEU) of effective legal protection (principle of effectiveness);

               3.

               the principle of the right to a fair hearing laid down in the second paragraph of Article 47 of the Charter of Fundamental Rights of the European Union (Article 6(1) TEU) and in Article 6(2) of the ECHR (Article 6(1) TEU);

               4.

               the principle of non bis in idem laid down in Article 50 of the Charter of Fundamental Rights of the European Union; or

               5.

               the conditions governing penalties in the disclosure procedure laid down in Article 6 of Directive 68/151/EEC, (1) Article 60a of Directive 78/660/EEC (2) and Article 38(6) of Directive 83/349/EEC; (3)

         preclude a national rule which, in the case where the statutory nine-month period for compiling and disclosing annual accounts to the relevant court maintaining the commercial register is exceeded,

               —

               without a prior opportunity to state views on the existence of an obligation to disclose and on any potential obstacles to doing so, in particular without prior examination as to whether those annual accounts have in fact already been submitted to the court which maintains the register in the judicial district of which the principal place of business is situated; and

               —

               without a prior individual request to the company or the bodies authorised to represent it to comply with the disclosure obligation,

         requires that the court maintaining the commercial register impose immediately a minimum fine of EUR 700 on the company and on each of the bodies authorised to represent it, in the absence of the provision of proof to the contrary and pursuant to the fiction that the company and its bodies were culpable in failing to effect disclosure; and which requires, in the event of further failure for periods of two months, the further and immediate imposition in each case of further minimum fines of EUR 700 on the company and on each of the bodies authorised to represent it, again in the absence of the provision of proof to the contrary and pursuant to the fiction that the company and its bodies were culpable in failing to effect disclosure?

      (1)  First Council Directive 68/151/EEC of 9 March 1968 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community (OJ, English special edition 1968(I), p. 41).

      (2)  Fourth Council Directive 78/660/EEC of 25 July 1978 based on Article 54(3)(g) of the Treaty on the annual accounts of certain types of companies (OJ 1978 L 222, p. 11; amended version at OJ 2006 L 224, p. 1).

      (3)  Seventh Council Directive 83/349/EEC of 13 June 1983 based on Article 54(3)(g) of the Treaty on consolidated accounts (OJ 1983 L 193, p. 1).


title: Case T-121/07: Action brought on 18 April 2007 — Alstom v Commission

text:
               23.6.2007

               EN

               Official Journal of the European Union

               C 140/30

         Action brought on 18 April 2007 — Alstom v Commission
   (Case T-121/07)
   (2007/C 140/51)
   Language of the case: French
   Parties

      Applicant: Alstom (Levallois Perret, France) (represented by: J. Derenne, lawyer, W. Broere, Solicitor, and A. Müller-Rappard and C. Guirado, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul Articles 1(b), 2(b) and 2(c) of the contested decision;

               —

               in the alternative, substantially reduce the fines imposed on Alstom;

               —

               order the Commission to pay the costs.

         Pleas in law and main arguments
   By the present action, the applicant seeks partial annulment of Commission Decision C(2006) 6762 Final of 24 January 2007, relating to a proceeding under Article 81 of the EC Treaty and Article 53 EEA (Case COMP/F/38.899 — Gas Insulated Switchgear), concerning a cartel in the gas insulated switchgear projects sector entailing manipulation of the bidding procedure for those projects, price fixing, the allocation of quotas and of projects, and exchanges of information. In the alternative, the applicant seeks the annulment or reduction of the fine imposed on it by the contested decision.
   In support of its claims, the applicant raises eight pleas in law.
   The first alleges infringement of the rules relating to judicial protection and of the general principle of the ‘right to an effective remedy’, in that, by imposing a joint fine on two companies which are both legally and economically independent, the Commission has created a situation in which any possible benefit for the applicant of an action against the decision will depend exclusively on the outcome of the action of an independent third party.
   The second plea alleges infringement of the legal rules applicable to joint and several liability, in that the Commission has made two companies, with no legal link between them, jointly and severally liable for the same infringement, in breach of the principle of legal certainty and the principle that penalties must fit the offence.
   By its third plea the applicant criticises the Commission for having infringed Article 253 EC in that it did not explain how the evidence adduced by the applicant to show that it had no decisive influence over its wholly-owned subsidiaries were not sufficient to rebut the presumption on this issue.
   The applicant's fourth plea alleges infringement of Article 81 EC and, in particular, of the rules relating to the imputability to parent companies of the infringements committed by their subsidiaries, and also of the rules relating to the transfer of liability for infringements.
   By its fifth plea the applicant claims that the contested decision infringes the rules applicable to the recognition of aggravating conditions for activities of the ‘cartel ringleader’ together with the principle of equal treatment. The applicant alleges that the Commission was wrong to attribute the role of ringleader to the applicant and that its role as ‘European secretary’ of the cartel was purely administrative and was not such as to confer on it a more important role than the roles of other members of the cartel. Consequently, the applicant maintains that the Commission made an error of assessment, that it misapplied the applicable rules and that it did not give a sufficiently reasoned decision on that point.
   The applicant also claims that the Commission infringed rules of law with regard to proof of the continuity of the infringement in that it did not provide evidence relating to facts which were sufficiently close in time to establish that the infringement was continuous.
   The seventh plea relied upon by the applicant alleges infringement of the rights of the defence in that, according to the applicant, the contested decision is based on certain pieces of information which were not contained in the Commission's statement of objections, and with regard to which, the Commission did not inform the applicant of the consequences which it would draw from them in its decision.
   Finally, by its eighth plea, the applicant alleges that the Commission infringed the rules relating to the calculation of the basic amount of the fines, in that the contested decision determined the amount of the fine, for the entire period of the infringement, on the basis of the turnover achieved within the European Economic Area, when the EEA Agreement has been in force only from 1 January 1994.


title: Case C-459/12: Order of the President of the Court of 26 February 2014 (request for a preliminary ruling from the Landgericht Hamburg — Germany) — Werner Krieger v ERGO Lebensversicherung AG

text:
               16.6.2014

               EN

               Official Journal of the European Union

               C 184/21

         Order of the President of the Court of 26 February 2014 (request for a preliminary ruling from the Landgericht Hamburg — Germany) — Werner Krieger v ERGO Lebensversicherung AG
   (Case C-459/12) (1)

   2014/C 184/28
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 9, 12.1.2013.


title: Decision adopted by the Court at its general meeting on 14 September 1999

text:
20.11.1999            EN                   Official Journal of the European Communities                                      C 333/1
                                                                   I
                                                             (Information)
                                                COURT OF JUSTICE
                                                         COURT OF JUSTICE
Decision adopted by the Court at its general meeting on                Assignment of Judge F. Macken
                      14 September 1999
                                                                       Judge F. Macken is assigned to the Third and Sixth Chambers
                        (1999/C 333/01)
In accordance with Article 10(1) of its Rules of Procedure, the        Appointment of the Presidents of the Cham-
Court of Justice of the European Communities at its general            bers
meeting on 14 September 1999, appointed Mr Nial Fennelly
as First Advocate General for the period from 7 October 1999
to 6 October 2000.                                                     In accordance with Article 10(1) of the Rules of Procedure, the
                                                                       Court has appointed for a period of one year starting on
                                                                       7 October 1999:
                                                                       — Judge L. Sevón as President of the First Chamber,
                                                                       — Judge R. Schintgen as President of the Second Chamber,
Taking of the oath by a new Member of the Court of                     — Judge J.C. Moitinho de Almeida as President of the Third
                             Justice                                        and Sixth Chambers,
                                                                       — Judge D.A.O. Edward as President of the Fourth and Fifth
                        (1999/C 333/02)                                     Chambers.
Following her appointment as Judge of the Court of Justice of
the European Communities by Decision of the Representatives
of the Governments of the Member States of 15 September
1999 (1), with effect from the taking of the until 6 October
2003, Mrs Fidelma Macken took the oath before the Court on             Composition of the Chambers
5 October 1999.
                                                                       1.     The composition of the Chambers for the same period
(1) OJ 1999 L 248, p. 32.                                              has been determined as follows:
                                                                       First Chamber
                                                                       Mr Sevón, President of the Chamber,
                                                                       Messrs Jann and Wathelet, Judges.
Decisions adopted by the Court at its general meeting on
                        6 October 1999
                                                                       Second Chamber
                        (1999/C 333/03)
                                                                       Mr Schintgen, President of the Chamber,
The Court of Justice of the European Communities adopted
the following decisions at its meeting of 6 October 1999:              Messrs Hirsch and Skouris, Judges.


title: Case C-150/04: Judgment of the Court (Grand Chamber) of 30 January 2007 — Commission of the European Communities v Kingdom of Denmark (Failure of a Member State to fulfil obligations — Freedom of movement for workers — Freedom to provide services — Free movement of capital — Freedom of establishment — Income tax — Pensions — Policy taken out with a pension institution in another Member State — Tax legislation — Limitation on the deductibility or exemption from taxable income of contributions paid into a pension scheme — Overriding reasons in the public interest — Effectiveness of supervision of taxation — Cohesion of the tax system — Symmetry of the tax system — Double taxation convention)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/2

         Judgment of the Court (Grand Chamber) of 30 January 2007 — Commission of the European Communities v Kingdom of Denmark
   (Case C-150/04) (1)

   (Failure of a Member State to fulfil obligations - Freedom of movement for workers - Freedom to provide services - Free movement of capital - Freedom of establishment - Income tax - Pensions - Policy taken out with a pension institution in another Member State - Tax legislation - Limitation on the deductibility or exemption from taxable income of contributions paid into a pension scheme - Overriding reasons in the public interest - Effectiveness of supervision of taxation - Cohesion of the tax system - Symmetry of the tax system - Double taxation convention)
   (2007/C 82/03)
   Language of the case: Danish
   Parties

      Applicant: Commission of the European Communities (represented by: initially by S. Tams, and subsequently by R. Lyal and H. Støvlbæk, Agents)

      Defendant: Kingdom of Denmark (represented by: J. Molde, Agent)

      Intervener in support of the defendant: Kingdom of Sweden, (represented by: A. Kruse, Agent)
   Re:
   Failure by a Member State to fulfil obligations — Infringement of Articles 39, 43, 49 and 56 EC — Tax legislation limiting income tax deductions for pension insurance contributions to schemes set up with undertakings in the Member State
   Operative part of the judgment
   The Court:

               1.

               Declares that, by introducing and maintaining in force a system for life assurance and pensions under which tax deductions and tax exemptions for payments are granted only for payments under contracts entered into with pension institutions established in Denmark, whereas no such tax relief is granted for payments made under contracts entered into with pension institutions established in other Member States, the Kingdom of Denmark has failed to fulfil its obligations under Articles 39 EC, 43 EC and 49 EC;

               2.

               Orders the Kingdom of Denmark to pay the costs;

               3.

               Orders the Kingdom of Sweden to bear its own costs.

      (1)  OJ C 190, 24.7.2004.


title: Case C-89/07: Action brought on 15 February 2007 — Commission of the European Communities v French Republic

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/23

         Action brought on 15 February 2007 — Commission of the European Communities v French Republic
   (Case C-89/07)
   (2007/C 95/40)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet, Agent)

      Defendant: French Republic
   Form of order sought

               —

               Declare that by maintaining in force in its national law a requirement of French nationality for the pursuit of employment as master (captain) or officer (chief mate) on all vessels flying the French flag, the French Republic has failed to fulfil its obligations under Article 39 EC;

               —

               order the French Republic to pay the costs.

         Pleas in law and main arguments
   In so far as it imposes a requirement of French nationality for the pursuit of employment as master (captain) or officer (chief mate) on all vessels flying the French flag, French legislation conflicts with the provisions of Community law relating to freedom of movement for workers, as interpreted by the Court of Justice in its judgments of 30 September 2003 in Case C-405/01 Colegio de Oficiales de la Marina Mercante Española [2003] ECR I-10391 and in Case C-47/02 Anker and Others [2003] ECR I-10447. Such a nationality requirement can be imposed only in respect of the posts of master and chief mate actually involving the exercise of rights conferred by public law on a regular basis.


title: Action brought on 1 April 1996 by the United Kingdom against the Commission of the European Communities (Case C-106/96)

text:
18 . 5 . 96             EN                 Official Journal of the European Communities                                    No C 145/7
2 . Does Directive 91 /414/EEC permit a Member State to                   took place was so plain that no reasonable third party
     allow a plant protection product imported from another               could have asserted that no such conflict existed ?
     EEA State or from outside the EEA onto the market as
     identical ( as defined in question 1 ) to a master product       (') OJ, English Special Edition 1968 ( I ), p . 41 .
     without any analysis of the actual contents of the
     imported product prior to placing on the market ?
3 . If the answer to question 1 is in the affirmative, does
     Article 9 ( 2 ) of Directive 91 /414/EEC permit a Member
     State to allow a plant protection product imported from          Action brought on 1 April 1996 by the United Kingdom
     countries outside the EEA onto the market when the                 against the Commission of the European Communities
     importer or person placing the product on the market is                                  ( Case C-106/96 )
     a person without a permanent office within the EEA ?                                       ( 96/C 145/ 15 )
(M OJ No L 230 , 19 . 8 . 1991 , p . 1 .
                                                                      An action against the Commission of the European
                                                                      Communities was brought before the Court of Justice of the
                                                                      European Communities on 1 April 1996 by the United
                                                                      Kingdom, represented by Mr John E. Collins , Assistant
                                                                      Treasury Solicitor, acting as agent, assisted by Mr Derrick
                                                                      Wyatt QC , of the English Bar, with an address for service in
Reference for a preliminary ruling by the Hoge Raad                   Luxembourg at the British Embassy, 14 Boulevard
der Nederlanden by judgment of that court of 22 March                 Roosevelt.
1996 in the case of Cooperatieve Rabobank 'Vecht en
Plassengebied' BA and Erik Aarnoud Minderhoud, receiver               The applicant seeks the annulment of the decision or
                in bankruptcy of Mediasafe BV                         decisions referred to in the press release of the Commission
                         ( Case C- 1 04/96                            of 23 January 1 996, without prejudice to the competence of
                           ( 96/C 145/ 14                             the Court of Justice to declare the decision or decisions in
                                                                      issue of definitive effect .
Reference has been made to the Court of Justice of the
European Communities by a judgment of the Hoge Raad                   The applicant asks for costs against the Commission
der Nederlanden ( Supreme Court of the Netherlands ) of               pursuant to Article 69 of the Rules of Procedure .
22 March 1 996 , which was received at the Court Registry
on 1 April 1996 , for a preliminary ruling in the case of             Pleas in law and main arguments
Cooperatieve Rabobank 'Vecht en Plassengebied' BA and
Erik Aarnoud Minderhoud, receiver in bankruptcy of                    The United Kingdom seeks the annulment of the decision or
Mediasafe BV, on the following questions :                            decisions referred to in the press release of 23 January 1 996
                                                                      on the following grounds specified in Article 173 ( 2 ) of the
1 . Is it consistent with the First Directive ( J ) for a company     EC Treaty, namely lack of competence, infringement of an
     to be allowed to rely, as against a third party with whom        essential procedural requirement, and infringement of the
     a director generally authorized to represent the                 EC Treaty.
     company has entered into a transaction on its behalf, on
     the fact that the director lacked authority on the ground        The United Kingdom alleges lack of competence, since the
     that the transaction involved a conflict of interests            Commission incurred legal expenditure without lawful
     between him and the company ?                                    authority. The United Kingdom also alleges breach of
                                                                      Article 4 of the EC Treaty, which provides that each
2 . Is question 1 to be answered in the affirmative only if the       institution shall act within the limits of the powers conferred
     third party had knowledge of the conflict of interests at        upon it by this Treaty .
     the time when the transaction took place, or would
     reasonably have been expected to have knowledge of               The United Kingdom also alleges breach of an essential
     that conflict of interests on the basis of the information       procedural requirement, since the challenged expenditure
     available to him at the time ?                                   was unsupported by reasoning specifying its legal basis.
                                                                      Such reasoning should have been incorporated in a decision
3 . Is question 1 to be answered in the affirmative only if the       of the Commission addressed to and notified in full to the
     conflict of interests at the time when the transaction           Member States .


title: Case C-302/06: Order of the Court (Third Chamber) of 25 January 2007 (reference for a preliminary ruling of the Krajský súd v Prešove, Slovak Republic) — František Koval'ský v Mesto Prešov, Dopravný podnik Mesta Prešov, a.s. (Reference for a preliminary ruling — Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms — Property law — Electrical installations on private land without compensation for the owners — Lack of jurisdiction of the Court)

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/11

         Order of the Court (Third Chamber) of 25 January 2007 (reference for a preliminary ruling of the Krajský súd v Prešove, Slovak Republic) — František Koval'ský v Mesto Prešov, Dopravný podnik Mesta Prešov, a.s.
   (Case C-302/06) (1)

   (Reference for a preliminary ruling - Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms - Property law - Electrical installations on private land without compensation for the owners - Lack of jurisdiction of the Court)
   (2007/C 82/22)
   Language of the case: Slovak
   Referring court
   Krajský súd v Prešove
   Parties

      Applicant: František Koval'ský

      Defendants: Mesto Prešov, Dopravný podnik Mesta Prešov, a.s.

      Intevernors: Zuzana Petrová, Ondrej Valla
   Re:
   Reference for a preliminary ruling — Krajský súd v Prešove — Interpretation of Article 6 EU and Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, signed in Paris on 20 March 1952 — Property law — National legislation under which electrical installations may be placed on private land without the owners being entitled to compensation
   Operative part of the order
   The Court of Justice of the European Communities clearly has no jurisdiction to answer the questions referred by the Krajský súd v Prešove V by decisions of 2 May and 21 July 2006.

      (1)  OJ C 249 of 14.10.2006.


title: Case T-272/02: Action brought on 4 September 2002 by Comune di Napoli against Commission of the European Communities

text:
26.10.2002            EN                      Official Journal of the European Communities                                     C 261/19
Pleas in law and main arguments                                          Pleas in law and main arguments
                                                                         Applicant for the Com-       The applicant
The applicant contests, first, the Commission’s rejection of the         munity trade mark:
applicant’s request that it institute legal proceedings with
regard to the harassment complained of. Secondly, the appli-             The Community trade          Word mark ‘RUFFLES’ — Appli-
cant contests the implied decision not to recognise the illness          mark concerned:              cation No 000096875, for goods
suffered by the applicant, following such harassment, as an                                           in Classes 29 and 30 (food and
occupational disease.                                                                                condiments)
                                                                         Proprietor of the right to   Convent Knabber-Gebäck GmbH.
In support of the action in respect of the first act, the applicant      the trade mark or sign
alleges infringement of Article 25(2) of the Staff Regulations.          asserted by way of oppo-
In the applicant’s view, the reasons for the decision are                sition in the opposition
inconsistent.                                                            proceedings:
                                                                         Trade mark or sign           German mark ‘RIFFELS’ registered
Moreover, the applicant alleges infringement of Article 24(1)            asserted by way of oppo-     for goods in Class 29 (potato
and (2) of the Staff Regulations in that the Commission refuses          sition in the opposition     chips)
to take legal action and in that it refuses to grant the applicant       proceedings:
access to information which it has available to it regarding the
harassing conduct.                                                       Decision of the Oppo-        Application upheld as regards
                                                                         sition Division:             ‘dried vegetables’ (Class 29) and
                                                                                ‘fine pastry and confectionery’
In support of the action in respect of the second act, the                                            (Class 30). Application dismissed
applicant alleges infringement of Article 25(2) of the Staff                                          as regards ‘cereal preparations’
Regulations. The applicant claims not to have received any                                            (Class 30).
reasons for the implied rejection of the request submitted.
                                                                         Decision of the Board of     Appeal dismissed.
                                                                         Appeal:
                                                                         Grounds of claim:            Breach of the principles that the
                                                                                rights of the defence are to be
                                                                                observed and that reasons must
                                                                                be provided, in accordance with
                                                                                Articles 73 and 74 of Regulation
Action brought on 2 September 2002 by Pepsico Inc.                                                    No 40/94, and of co-existence
against Office for Harmonization in the Internal Market                                               and comparability between Com-
              (trade marks and designs) (OHIM)                                                        munity trade marks and national
                                                                                trade marks
                        (Case T-269/02)
                        (2002/C 261/36)
                  (Language of the case: Spanish)
                                                                         Action brought on 4 September 2002 by Comune di
                                                                         Napoli against Commission of the European Communities
An action against Office for Harmonization in the Internal                                       (Case T-272/02)
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on
2 September 2002 by Pepsico Inc., whose registered office is                                     (2002/C 261/37)
in New York (United States of America), represented by
Enrique Armijo Chávarri.
                                                                                (Language of the case: Italian)
The applicant claims that the Court should:
                                                                         An action against the Commission of the European Communi-
—     annul decision No 114/2000-1 of the OHIM of 10 June                ties was brought before the Court of First Instance of the
      2002;                                                              European Communities on 4 September 2002 by the Munici-
                                                                         pality of Naples, represented by Massimo Merola, Claudio
—     order OHIM to pay the costs.                                       Tesauro, Giuseppe Tarallo and Edoardo Barone, lawyers.
 ---pagebreak--- C 261/20               EN                     Official Journal of the European Communities                                    26.10.2002
The applicant claims that the Court should:                              Action brought on 9 September 2002 by D against
                                                                                European Investment Bank
—     annul the decision of the Commission notified in a letter
      of 11 June 2002 concerning ERDF action No 66 and the                                        (Case T-275/02)
      correction of the accounts relating to ERDF action No 67;
—     order the Commission to pay the expenditure incurred                                        (2002/C 261/38)
      by the Comune di Napoli in these proceedings, including
      in respect of lawyers’ fees.
                                                                                (Language of the case: French)
Pleas in law and main arguments                                          An action against the European Investment Bank was brought
                                                                         before the Court of First Instance of the European Communities
                                                                         on 9 September 2002 by D, represented by Joëlle Choucroun,
                                                                         lawyers, with an address for service in Luxembourg.
The present action seeks the annulment of the decision of
11 June 2002 closing ERDF file 85 05 03 066 (hereafter ‘ERDF
No 66’) — ‘Metropolitan link between Museo and Dante’ —
by which the European Commission reduced the amount of                   The applicant claims that the Court should:
the contribution initially granted for completion of the project
in question and implicitly rejecting the request for adjustment
of the balance relating to earlier related ERDF action                   —     declare the present action admissible and well founded;
No 85 05 03 067 (hereafter ‘ERDF No 67’) — ‘Rail link —
Naples Town Centre’. The contested decision accepted a level             —     annul the unilateral decision of the European Investment
of expenditure lower than the amount initially provided for and                Bank dated 26 March 2002 concerning the four-month
actually incurred, and accordingly reduced the contribution                    extension of the six-month trial-period agreed between
initially agreed by the defendant.                                             the parties;
                                                                         —     annul the decision of the European Investment Bank
In support of its claims, the applicant alleges breach of the                  dated 25 June 2002, reproduced on 28 June 2002,
principle that legitimate expectations be protected and of                     unilaterally terminating outside the trial period and with
fairness, as well as failure to provide reasons.                               effect from 15 July 2002 the fixed-period employment
                                                                               contract with the applicant signed on 2 October 2001;
                                                                         —     order the European Investment Bank to pay to the
The applicant claims in that regard that the Commission:                       applicant EUR 45 000 (forty-five thousand euros) by way
                                                                               of damages;
—     gave rise, by its own previous conduct, to legitimate
      expectations on the part of the applicant regarding the            —     order the European Investment Bank to pay the costs.
      possibility that it might receive the full agreed amount,
      since the work covered by the intervention had been
      completed as planned, and the eligible expenditure —
      actually incurred and properly accounted for — were on
      the whole not less than the initial planned investment.
                                                                         Pleas in law and main arguments
—     rejected the request for adjustment of the balance of
      ERDF intervention No 67 and reduced the contribution               The applicant in the present case contests the extension of the
      provided for in the context of ERDF No 66 on the ground            probation period to be worked for the defendant, together
      that the eligible expenditure was of a lower amount (in            with its unilateral termination of the applicant’s employment
      that it was erroneously already attributed to the new              contract at the end of that period.
      intervention), despite the fact the expenditure incurred
      was on the whole greater and the acknowledgment, by
      the defendant, that the work had been completed in
      accordance with the project.                                       In support of the arguments put forward, the applicant alleges:
                                                                         —     Infringement of the principle of legality, in that neither
                                                                               the letter engaging him nor the Staff Regulations of the


title: Case T-333/11: Action brought on 24 June 2011 — Wessang v OHIM — Greinwald (star foods)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/51

         Action brought on 24 June 2011 — Wessang v OHIM — Greinwald (star foods)
   (Case T-333/11)
   2011/C 269/114
   Language in which the application was lodged: French

      Parties

      Applicant: Nicolas Wessang (Zimmerbach, France) (represented by: A. Grolée, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Greinwald GmbH (Kempten, Germany)

      Form of order sought

               —

               Annul the decision of the Board of Appeal of OHIM of 15 April 2011;

               —

               Declare and hold that OHIM is to adopt the measures required to comply with the present judgment annulling the abovementioned decision and therefore uphold the opposition brought by Mr Nicolas Wessang on 26 September 2005 against the application for registration of the mark STAR FOODS + design No 4 105 615;

               —

               Order Greinwald GmbH and OHIM jointly and severally, and in solidum, to pay all the costs and expenses incurred by Mr Nicolas Wessang in the opposition proceedings, the appeal proceedings and the present proceedings;

               —

               Order Greinwald GmbH to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings;

               —

               Order OHIM to pay all the cost and expenses which it has incurred in the opposition proceedings, the appeal proceedings and the present proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Greinwald GmbH.

      Community trade mark concerned: Figurative mark ‘star foods’ for goods in Classes 29, 30 and 32 — application for registration No 4 105 615.

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

      Mark or sign cited in opposition: Community figurative and word marks ‘STAR SNACKS’ for goods in Classes 29, 30 and 31.

      Decision of the Opposition Division: Upholding the opposition.

      Decision of the Board of Appeal: Rejection of the opposition; decision taken following the judgment of the General Court of 11 May 2010 in Case T-492/08 Wessang v OHIM — Greinwald (star foods).

      Pleas in law: The applicant submits that the General Court held that there was a likelihood of confusion between the two marks at issue and that, therefore, the Board of Appeal had limited powers following the judgment of the General Court. The applicant thus submits that the Board of Appeal exceeded its powers in re-trying the matter in its entirety.


title: Case C-302/13: Request for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 3 June 2013 — AS flyLAL Lithuanian Airlines, in liquidation v VAS Starptautiskā lidosta Rīga, AS Air Baltic Corporation

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 226/6

         Request for a preliminary ruling from the Augstākās tiesas Senāts (Republic of Latvia) lodged on 3 June 2013 — AS flyLAL Lithuanian Airlines, in liquidation v VAS Starptautiskā lidosta Rīga, AS Air Baltic Corporation
   (Case C-302/13)
   (2013/C 226/10)
   Language of the case: Latvian

      Referring court

   Augstākās tiesas Senāts

      Parties to the main proceedings

      Applicant: AS flyLAL Lithuanian Airlines, in liquidation

      Defendants: VAS Starptautiskā lidosta Rīga, AS Air Baltic Corporation

      Questions referred

               1.

               Is it appropriate to regard as a civil or commercial matter, within the meaning of [Regulation (EC) No 44/2001] (1) (‘the Regulation’), a case in which the applicant seeks compensation for damage and a declaration of the unlawfulness of the defendants’ conduct consisting in an unlawful agreement and abuse of a dominant position, and which is based on the application of legislative acts of general scope of another Member State, bearing in mind that unlawful agreements are void from the moment they are concluded, and that, on the other hand, the adoption of a rule of law is an act of the State in the sphere of public law (acta iure imperii), to which the rules of public international law relating to the immunity of a State from the jurisdiction of other States apply?

               2.

               In the event that the reply to Question 1 is in the affirmative (the case is a civil or commercial matter, within the meaning of the Regulation), are the compensation proceedings to be regarded as an action having as its object the validity of the decisions of the organs of companies, within the meaning of Article 22(2) of the Regulation, in which case the judgment need not be recognised, in accordance with Article 35(1) of the Regulation?

               3.

               If the object of the action in the compensation proceedings falls within the scope of Article 22(2) of the Regulation (exclusive jurisdiction), is the court of the State in which recognition is sought required to verify the presence of the circumstances listed in Article 35(1) of the Regulation in relation to the recognition of a judgment adopting provisional protective measures?

               4.

               May the public-policy clause contained in Article 34(1) of the Regulation be interpreted as meaning that recognition of a judgment adopting provisional protective measures is contrary to the public policy of a Member State if, first, the principal ground for the adoption of the provisional protective measures is the considerable size of the amount requested without a well-founded and substantiated calculation having been made and, second, if the recognition and enforcement of that judgment may cause the defendants damage for which the applicant, a company which is in liquidation, will not be able to compensate in the event that the claim for compensation is dismissed, which might affect the economic interests of the State in which recognition is sought, and thereby jeopardise the security of the State, in view of the fact that the Republic of Latvia holds 100 % of the shares in Lidosta Rīga and 52.6 % of the shares in AS Air Baltic Corporation?

      (1)  Council regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 21, p. 1).


title: Case C-97/16: Request for a preliminary ruling from the Juzgado de lo Social No 3 de Barcelona (Spain) lodged on 17 February 2016 — José María Pérez Retamero v TNT Express Worldwide, S.L., Transportes Sapirod, S.L. and Fondo de Garantía Salarial (Fogasa)

text:
               2.5.2016

               EN

               Official Journal of the European Union

               C 156/29

         Request for a preliminary ruling from the Juzgado de lo Social No 3 de Barcelona (Spain) lodged on 17 February 2016 — José María Pérez Retamero v TNT Express Worldwide, S.L., Transportes Sapirod, S.L. and Fondo de Garantía Salarial (Fogasa)
   (Case C-97/16)
   (2016/C 156/38)
   Language of the case: Spanish

      Referring court

   Juzgado de lo Social No 3 de Barcelona

      Parties to the main proceedings

      Claimant: José María Pérez Retamero

      Defendants: TNT Express Worldwide, S.L., Transportes Sapirod, S.L. and Fondo de Garantía Salarial (Fogasa)

      Questions referred

               1.

               Must the definition of ‘mobile worker’ given in Article 3(d) of Directive 2002/15/EC (1) be interpreted as precluding domestic legal provisions such as Article 1.3(g) of the Workers’ Statute, which provides that ‘persons providing a transport service by virtue of administrative authorisations of which they are the holders, carried out … using vehicles … of which ownership or a direct power of disposal is vested in them cannot be regarded as ‘mobile workers’?

               2.

               Must the second subparagraph of Article 3(e) of the directive (‘[f]or the purposes of this directive, those drivers who do not satisfy these criteria shall be subject to the same obligations and benefit from the same rights as those provided for mobile workers by this directive’) be interpreted as meaning that, if none or only one of the criteria laid down for a person to be regarded as a ‘self-employed driver’ is fulfilled, the view must be taken that the person concerned is a ‘mobile worker’?

      (1)  Directive 2002/15/EC of the European Parliament and of the Council of 11 March 2002 on the organisation of the working time of persons performing mobile road transport activities (OJ 2002 L 80, p. 35).


title: Case F-90/09: Action brought on 4 November 2009 — Ernotte v Commission

text:
               16.1.2010

               EN

               Official Journal of the European Union

               C 11/41

         Action brought on 4 November 2009 — Ernotte v Commission
   (Case F-90/09)
   2010/C 11/78
   Language of the case: French

      Parties

      Applicant: Frédéric Ernotte (Brussels, Belgium) (represented by: L. Defalque, lawyer)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Action for an order against the Commission to make good the material and non-material loss which the applicant suffered as a result of the procedure for handling his case concerning the recognition of the accidental origin of the infarct which he suffered.

      Form of order sought

               —

               order the Commission to pay to the applicant the sum of EUR 96 579 175 (increased by default interest calculated using the base rate fixed by the European Central Bank for its main refinancing operations increased by two percentage points, from 1 January 2006) as compensation for the material loss he suffered as a result of the off-handedness and the unreasonable period in which the Commission handled its case concerning the recognition of the accidental origin of the infarct which he suffered on 28 August 2002;

               —

               award damages for the non-material loss suffered by the applicant assessed provisionally ex aequo et bono at EUR 5 000, subject to that figure being increased or decreased in the course of the proceedings;

               —

               order the European Commission to pay the costs.


title: Judgment of the Court (First Chamber) of 21 July 2005 in Case C-207/04: Reference for a preliminary ruling from the Commissione tributaria provinciale di Novara in Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona (Social policy — Equal pay and equal treatment for men and women — Redundancy payment — Tax treatment determined by reference to age — Tax advantage)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/20

      JUDGMENT OF THE COURT

   (First Chamber)
   of 21 July 2005
   in Case C-207/04: Reference for a preliminary ruling from the Commissione tributaria provinciale di Novara in Paolo Vergani v Agenzia delle Entrate, Ufficio di Arona (1)

   (Social policy - Equal pay and equal treatment for men and women - Redundancy payment - Tax treatment determined by reference to age - Tax advantage)
   (2005/C 217/39)
   Language of the case: Italian
   In Case C-207/04: reference for a preliminary ruling under Article 234 EC from the Commissione tributaria provinciale di Novara (Italy), made by decision of 26 April 2004, received at the Court on 10 May 2004, in the proceedings between Paolo Vergani and Agenzia delle Entrate, Ufficio di Arona, — the Court (First Chamber), composed of P. Jann, President of the Chamber, N. Colneric (Rapporteur), K. Schiemann, E. Juhász and E. Levits, Judges; D. Ruiz-Jarabo Colomer, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 21 July 2005, in which it ruled:
   Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions must be interpreted as precluding a provision such as that at issue in the main proceedings, which grants to workers who have passed the age of 50 years in the case of women and 55 years in the case of men, as a voluntary redundancy incentive, an advantage consisting in taxation at a rate reduced by half, of sums paid on cessation of the employment relationship.

      (1)  JO C 179 of 10.07.2004.


title: Order of the Court (Fourth Chamber) of 26 May 2005 in Case C-297/03: Reference for a preliminary ruling from the Oberster Gerichtshof in Sozialhilfeverband Rohrbach v Arbeiterkammer Oberösterreich, Österreichischer Gewerkschaftsbund (Article 104(3) of the Rules of Procedure — Directive 2001/23/EC — Transfers of Undertakings — Possibility of relying on a directive against individuals — Employee opposition to the transfer of their contracts to the transferee)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/19

      ORDER OF THE COURT

   (Fourth Chamber)
   of 26 May 2005
   in Case C-297/03: Reference for a preliminary ruling from the Oberster Gerichtshof in Sozialhilfeverband Rohrbach v Arbeiterkammer Oberösterreich, Österreichischer Gewerkschaftsbund (1)

   (Article 104(3) of the Rules of Procedure - Directive 2001/23/EC - Transfers of Undertakings - Possibility of relying on a directive against individuals - Employee opposition to the transfer of their contracts to the transferee)
   (2005/C 182/35)
   Language of the case: German
   In Case C-297/03: reference for a preliminary ruling under Article 234 EC from the Oberster Gerichtshof (Supreme Court) (Austria), made by decision of 4 June 2003, received at the Court on 10 July 2003, in the proceedings between Sozialhilfeverband Rohrbach and Arbeiterkammer Oberösterreich, Österreichischer Gewerkschaftsbund — the Court (Fourth Chamber), composed of K. Lenaerts, President of the Chamber, N. Colneric (Rapporteur) and J. N. Cunha Rodrigues, Judges; P. Léger, Advocate General; R. Grass, Registrar, made an order on 26 May 2005, the operative part of which is as follows:

               1.

               A limited company governed by private law, the only shareholder of which is a social assistance association governed by public law, belongs to those entities subject to Article 3(1) and the first sentence of Article 1(1)(c) of Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses.

               2.

               A state entity which transfers its operations cannot rely on Articles 3(1) and 1(1)(c) of Directive 2001/23 against its employees in order to force them to continue their employment relationships with a transferee.

      (1)  OJ C 226 of 20.9.2003.


title: Case T-339/03: Action brought on 6 October 2003 by Gabrielle Clotuche against the Commission of the European Communities

text:
C 289/34              EN                          Official Journal of the European Union                                       29.11.2003
In the event that the Court does not make the declaration                 —     annul the decision of the Commission of 1 October 2003
primarily sought against the contested regulation, the appli-                   fixing the new organigram of DG ESTAT in so far as it
cants seek in the alternative a declaration from the Court that                 does not thereby constitute a reassignment of the appli-
Article 2 of Regulation No 1260/2001 is unlawful and                            cant where another individual reassignment measure is
inapplicable in so far as it enables the Commission when                        ordered in addition;
setting the derived intervention price on the basis of market
trends to disregard the effect of unrestricted imports free of            —     order the Commission to pay her EUR 25 000 by way of
duty.                                                                           compensation for the non-material damage suffered as a
                                                                                result of irregular conduct;
Second, the applicants assert that the statement of reasons for           —     order the Commission to pay the costs in their entirety.
the contested regulation appears inadequate and contradictory
given that, by that measure, the Commission has altered its
own practice of preceding years — inasmuch as Italy was not
included in the States covered by regionalisation — without
                                                                          Pleas in law and main arguments
any objective justification for that change and without taking
account of the specific situation arising from the abovemen-
tioned imports free of duty of white sugar from the Balkans.
                                                                          The applicant, a Commission official, was transferred on
                                                                          16 January 2003 to Eurostat as Director of the Social Statistics
                                                                          Directorate. On 9 July 2003, in view of the serious irregularities
Third, and in the alternative, the applicants submit that even            which allegedly took place in Eurostat, the Commission
without taking account of the imports free of duty of white
                                                                          decided to move all Eurostat’s directors, including the appli-
sugar from the Balkans in assessing domestic supply, the                  cant, to posts as Principal Advisers. On 1 October 2003, the
Commission should not deemed Italy to be a ‘deficit area’.                Commission decided on a new structure for the reformed DG
                                                                          ESTAT departments and decided that, in principle, it would
                                                                          open applications for the posts in the new directorates to both
(1) OJ L 162 of 1.7.2003, p. 24.
                                                                          external and internal applicants, without taking account of the
(2) Council Regulation (EC) No 1260/2001 of 19 June 2001 on the
    common organisation of the markets in the sugar sector (OJ            applicant. The applicant contests both those decisions claiming
    L 178 of 30.6.2001, p. 1).                                            that the alleged irregularities within Eurostat took place until
                                                                          2001 at the latest, while she was not posted there until 2003
                                                                          and was thus not involved in them. In support of her
                                                                          application, she alleges infringement of Articles 4, 7, 24, 25
                                                                          and 47 of the Staff Regulations, breach of the principle of
                                                                          equal treatment and of prohibition of discrimination, the
                                                                          principle of sound administration, the principles ‘audi alteram
                                                                          partem’ and ‘patere legem’, manifest error of assessment, abuse
                                                                          of process and misuse of powers.
Action brought on 6 October 2003 by Gabrielle Clotuche
  against the Commission of the European Communities
                         (Case T-339/03)
                         (2003/C 289/69)
                                                                          Action brought on 2 October 2003 by Wanadoo Inter-
                   (Language of the case: French)                         active S.A. against the Commission of the European
                                                                                Communities
                                                                                (Case T-340/03)
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                                (2003/C 289/70)
European Communities on 6 October 2003 by Gabrielle
Clotuche, residing in Brussels, represented by Pierre-Paul Van
Gehuchten, Gilbert Demez Jacques Sambon, lawyers.                                             (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
—     annul the decision of the Commission of 9 July 2003 to              ties was brought before the Court of First Instance of the
      reassign the applicant by transfer in the interest of the           European Communities on 2 October 2003 by Wanadoo
      service from her post as Director of the Social Statistics          Interactive S.A., whose registered office is in Issy-les-Mou-
      Directorate at Eurostat to a post as Principal Adviser at           lineaux (France), represented by O.W. Brouwer, H. Calvet,
      Eurostat;                                                           M. Pittie and J. Philippe, lawyers.


title: Case C-271/11: Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 31 May 2011 — Techniko Epimelitrio Elladas (TEE), Syllogos Ellinon Diplomatouchon Aeronafpigon Mechanikon (HEAS), Alexandros N. Tsiapas and Others, Panellinios Syllogos Aerolimenikon Ypiresias Politikis Aeroporias and Other v Ipourgos Esoterikon, Dimosias Dioikisis kai Apokentrosis, Ipourgos Metaforon kai Epikoinonion, Ipourgos Economias kai Economikon

text:
               6.8.2011

               EN

               Official Journal of the European Union

               C 232/19

         Reference for a preliminary ruling from the Simvoulio tis Epikratias (Greece) lodged on 31 May 2011 — Techniko Epimelitrio Elladas (TEE), Syllogos Ellinon Diplomatouchon Aeronafpigon Mechanikon (HEAS), Alexandros N. Tsiapas and Others, Panellinios Syllogos Aerolimenikon Ypiresias Politikis Aeroporias and Other v Ipourgos Esoterikon, Dimosias Dioikisis kai Apokentrosis, Ipourgos Metaforon kai Epikoinonion, Ipourgos Economias kai Economikon
   (Case C-271/11)
   2011/C 232/32
   Language of the case: Greek

      Referring court

   Simvoulio tis Epikratias

      Parties to the main proceedings

      Applicants: Techniko Epimelitrio Elladas (Hellenic Technical Chamber, TEE), Syllogos Ellinon Diplomatouchon Aeronafpigon Mechanikon (Hellenic Society of Aeronautical Engineers, HEAS), Alexandros N. Tsiapas and Others, Panellinios Syllogos Aerolimenikon Ypiresias Politikis Aeroporias (Civil Aviation Authority National Airports Association) and Others

      Defendants: Ipourgos Esoterikon, Dimosias Dioikisis kai Apokentrosis, Ipourgos Metaforon kai Epikoinonion, Ipourgos Economias kai Economikon (Minister for the Interior, Public Administration and Decentralisation; Minister for Transport and Communications; Minister for Economic Affairs and Finance)

      Questions referred

               (a)

               Within the meaning of Article 2 of Regulation (EC) No 2042/2003, in conjunction with provision M.B.902(b)(1) in Subpart I of Section B of Annex I to the said regulation, and in light of the requirements of provision AMC M.B.102(c)(1) (subparagraphs 1.1–1.4, 1.6 and 1.7) in Subpart A of Section B of Annex 1 to EASA Decision No 2003/19/RM of 28 November 2003 on acceptable means of compliance with the above Regulation (EC) No 2042/2003, does the national legislature have the discretion, when enacting additional measures for the implementation of the said regulation, to divide the job of aircraft review, in order to establish compliance with current airworthiness requirements, between several categories/specialisms of inspectors, each of whom is only required to inspect one particular aspect of the aircraft’s airworthiness? More importantly, is a national regulation, such as the critical regulation at issue, which makes provision for Airworthiness and Avionics Inspectors, Flight Operations Inspectors, Cabin Safety Inspectors and Licensing Inspectors, compatible with the above Regulation (EC) No 2042/2003?

               (b)

               If the answer to the previous question is in the affirmative, does provision M.B.902(b)(1) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 mean that anyone to whom aircraft airworthiness review duties are assigned in respect of one particular aspect only must have five years’ experience in all aspects ensuring the continuing airworthiness of the aircraft or does it suffice if they have five years’ experience in the particular duties assigned to them and their particular specialism?

               (c)

               If the answer to the above question is that five years’ experience in the particular duties assigned to the review staff suffices, does a national regulation, such as the critical regulation at issue, which stipulates that Airworthiness and Avionics Inspectors responsible for supervising and controlling aircraft, approved maintenance organisations and air travel in accordance with the rules set out in the ICAO manual doc 9760 must have at least five years’ previous experience in an aircraft maintenance organisation and must have worked on aircraft maintenance, satisfy the requirements of the aforementioned provision M.B.902(b)(1) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 requiring review staff to have ‘at least five years experience in continuing airworthiness’?

               (d)

               If the answer to the previous question is in the affirmative, is a national regulation, such as the critical regulation at issue, which equates holders of aircraft maintenance licences in accordance with Part-66 (Annex III) of the said regulation with holders of an aeronautical degree, by providing that both these categories of persons must have experience in an aircraft maintenance organisation in order to obtain accreditation as Airworthiness and Avionics Inspectors, compatible with Regulation (EC) No 2042/2003?

               (e)

               In light of the requirements of provision AMC M.B.102(c)(1), subparagraphs 1.4 and 1.5, in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003 on acceptable means of compliance with the above Regulation (EC) No 2042/2003, does five years’ experience in continuing airworthiness, in accordance with provision M.B.902(b)(1) in Subpart I of Section B of Annex I to the said Regulation (EC) No 2042/2003, mean practical experience which may have been acquired during the course of studies leading to academic qualification or only experience acquired under actual working conditions, independently of studies and once they have been completed and the qualification obtained?

               (f)

               Within the meaning of the above provision of Regulation (EC) No 2042/2003, does five years’ experience in continuing airworthiness also mean experience which may have been acquired by performing airworthiness reviews in the past, even before the said regulation entered into force?

               (g)

               Within the meaning of provision M.B.902(b)(2) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 and for the purpose of initial selection as an inspector, must the holder of an aircraft maintenance licence in accordance with Part-66 (Annex III to the said Regulation (EC) No 2042/2003) undergo additional education in aspects of aircraft airworthiness prior to selection or does it suffice if that person is provided with such education after their initial selection and before they assume the duties of inspector?

               (h)

               Within the meaning of provision M.B.902(b)(3) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003, which requires review staff to have ‘formal aeronautical maintenance training’, can a training system adopted by the national legislature be construed as constituting such training if: (a) it provides training after the initial selection of an inspector based on formal qualifications alone; (b) this training is not differentiated depending on the formal qualifications of the person initially selected as inspector and (c) the training system does not make provision either for a procedure and criteria for evaluating trainees or for final examination of trainees on completion of training, in order to establish their aptitude?

               (i)

               Does provision M.B.902(b)(4) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003, providing that airworthiness review staff should have ‘a position with appropriate responsibilities’, mean that the position is a qualification which a person must have in order to be accredited as an inspector, in the sense that they must have held a senior position in their previous employment? Or does the above provision of Regulation (EC) No 2042/2003 mean, in light of the requirements of provision AMC M.B.902(b)(3) in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003, that, having been initially selected as an inspector, the person must be given a position in the airworthiness review authority which allows him to engage the liability of that authority by signing on its behalf?

               (j)

               If the aforementioned provision M.B.902(b)(4) in Subpart I of Section B of Annex I to the Regulation has the second meaning set out above, can the requirement of the Regulation be construed, in light of that meaning, as being satisfied by a national regulation that makes provision for inspectors to be accredited following theoretical and practical training, at which point they can carry out aircraft airworthiness reviews and engage the liability of the competent authority by alone signing the review documents?

               (k)

               Furthermore, if the aforementioned provision M.B.902(b)(4) in Subpart I of Section B of Annex I to Regulation (EC) No 2042/2003 has the second meaning set out above, is a national provision, such as the critical regulation at issue, which provides that it is desirable for persons initially selected as Airworthiness and Avionics Inspectors to have previously been promoted to ‘senior positions of responsibility in an aircraft maintenance organisation’, compatible with it?

               (l)

               Within the meaning of Regulation (EC) No 2042/2003, which does not regulate the question of whether and under what conditions persons performing airworthiness review duties before it entered into force are entitled to continue to perform such duties following the entry into force of the said regulation, was the national legislature obliged to provide that persons who were performing the duties of inspector when the above regulation entered into force (or possibly before then) should automatically be reaccredited as inspectors, without first undergoing a selection and evaluation procedure? Or does the above Regulation (EC) No 2042/2003, the aim of which is to improve the safety of air transport, not to safeguard the professional rights of employees of the Member State’s authority responsible for airworthiness reviews, mean that the Member States are simply granted the discretion, in light also of the relevant requirements of provision AMC M.B.902(b)(4) in Subpart A of Section B of Annex I to EASA Decision No 2003/19/RM dated 28 November 2003, to continue, if they deem appropriate, to employ as airworthiness inspectors persons who were carrying out airworthiness reviews before the aforementioned regulation entered into force, even if those persons do not have the qualifications required under the said regulation?

               (m)

               If it is found that, within the meaning of Regulation (EC) No 2042/2003, the Member States are obliged automatically to reaccredit persons who were performing the duties of inspector before the said regulation entered into force, without applying a selection procedure, is a national provision, such as the critical provision at issue, which provides that, in order to be reaccredited as inspectors, those persons must have actually been performing the duties of inspector not on the date on which the above regulation entered into force, but on the later date, when the said provision of national law entered into force, compatible with that regulation?


title: Case T-373/08: Order of the General Court of 24 May 2011 — Nuova Agricast v Commission (Non-contractual liability — Aid scheme under Italian legislation — Scheme declared compatible with the common market — Transitional measure — Exclusion of certain undertakings — Principle of the protection of legitimate expectations — Sufficiently serious breach of a rule of law conferring rights on individuals — Absence — Clear lack of jurisdiction — Action manifestly devoid of any basis in law)

text:
               23.7.2011

               EN

               Official Journal of the European Union

               C 219/16

         Order of the General Court of 24 May 2011 — Nuova Agricast v Commission
   (Case T-373/08) (1)

   (Non-contractual liability - Aid scheme under Italian legislation - Scheme declared compatible with the common market - Transitional measure - Exclusion of certain undertakings - Principle of the protection of legitimate expectations - Sufficiently serious breach of a rule of law conferring rights on individuals - Absence - Clear lack of jurisdiction - Action manifestly devoid of any basis in law)
   2011/C 219/23
   Language of the case: Italian

      Parties

      Applicant: Nuova Agricast Srl (Cerignola, Italy) (represented by: M.A. Calabrese, lawyer)

      Defendant: European Commission (represented by: V. Di Bucci and E. Righini, acting as Agents)

      Re:

   Action for non-contractual liability seeking compensation for damage allegedly suffered by the applicant as a result of the Commission’s adopting the decision of 12 July 2000 not to raise objections to a State aid scheme in the form of aid for investment in disadvantaged regions of Italy (Aid No 715/99 — Italy (SG 2000 D/105754) and by reason of the Commission’s conduct prior to the adoption of that decision.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Nuova Agricast Srl shall pay the costs.

      (1)  OJ C 285, 8.11.2008.


title: Case C-350/14: Judgment of the Court (Fourth Chamber) of 10 December 2015 (request for a preliminary ruling from the Tribunale civile di Trieste — Italy) — Florin Lazar v Allianz SpA (Reference for a preliminary ruling — Area of freedom, security and justice — Judicial cooperation in civil matters — Regulation No 864/2007 — Article 4(1) — Concepts of ‘country in which the damage occurs’, ‘damage’ and ‘indirect consequences of the tort or delict’ — Damage sustained personally by a family member of a person who died as a result of a road traffic accident — Applicable law)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/3

         Judgment of the Court (Fourth Chamber) of 10 December 2015 (request for a preliminary ruling from the Tribunale civile di Trieste — Italy) — Florin Lazar v Allianz SpA
   (Case C-350/14) (1)

   ((Reference for a preliminary ruling - Area of freedom, security and justice - Judicial cooperation in civil matters - Regulation No 864/2007 - Article 4(1) - Concepts of ‘country in which the damage occurs’, ‘damage’ and ‘indirect consequences of the tort or delict’ - Damage sustained personally by a family member of a person who died as a result of a road traffic accident - Applicable law))
   (2016/C 048/03)
   Language of the case: Italian

      Referring court

   Tribunale civile di Trieste

      Parties to the main proceedings

      Applicant: Florin Lazar

      Defendant: Allianz SpA

      Operative part of the judgment

   Article 4(1) Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’), must be interpreted, in order to determine the law applicable to a non-contractual obligation arising from a road traffic accident, as meaning that the damage related to the death of a person in such an accident which took place in the Member State of the court seised and sustained by the close relatives of that person who reside in another Member State, must be classified as ‘indirect consequences’ of that accident, within the meaning of that provision.

      (1)  OJ C 351, 6.10.2014.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 17 December 1996 in Case T-164/96 R: Moccia Irme SpA v. Commission of the European Communities (ECSC - State aid - Single decision refusing to authorize the grant of State aid to a steel undertaking - Suspension of operation of a measure - Necessary interim measures - Interest in obtaining the interim measures requested - Rejection of the application)

text:
26 . 4 . 97            EN                   Official Journal of the European Communities                                 No C 131 / 17
               ORDER OF THE PRESIDENT                                  England and Wales, with an address for service in
           OF THE COURT OF FIRST INSTANCE                              Luxembourg at the Chambers Loesch & Wolter, 11 , rue
                      of 17 December 1996                              Goethe, Luxembourg.
in Case T-164/96 R: Moccia Irme SpA v. Commission of                   The applicant claims that the Court should:
                   the European Communities
(ECSC — State aid — Single decision refusing to authorize              — annul the Commission decision of 20 November 1996
the grant of State aid to a steel undertaking — Suspension                   in Kesko/Tuko (IV/M.784 ),
of operation of a measure — Necessary interim measures
— Interest in obtaining the interim measures requested —
                  Rejection of the application)                        — order the Commission to pay the costs of the
                                                                             applicant.
                          ( 97/C 131 /42 )
                                                                       Pleas in law and main arguments adduced in support:
                 (Language of the case: Italian)
                                                                       The applicant is a leading wholesale company in Finland.
                                                                       It distributes both daily consumer goods ( food, beverages,
In Case T-164/96 R: Moccia Irme SpA, established in                    tobacco products and household consumables forming
Naples ( Italy ), represented by Emilio Cappelli, Paolo De             part of a basket of goods which consumers expect to find
Caterini and Andrea Bandini, of the Rome Bar, with an                  in supermarkets ) and specialty goods ( shoes, clothes,
address for service in Luxembourg at the Chambers of                   sports articles, home electronics and agricultural and
Charles Turk, 13b Avenue Guillaume, against Commission                 builders' supplies ). On 27 May 1996 Kesko acquired
of the European Communities ( Agents : Paul E Nemitz,                  exclusive control of Tuko Oy, a company active as a
Laura Pignataro and Massimo Moretto ) — application                    wholesaler and retailer in the field of daily consumer
brought under Article 39 of the ECSC Treaty requesting                 goods and specialty goods. On 26 June 1996 the
the President of the Court of First Instance to make an                Commission received from the Finnish Office of Free
order suspending the operation of the Commission                       Competition ( OFC ) a request based on Article 22 ( 3 ) of
Decision C(96)2385 final of 30 July 1996, together with                Council Regulation ( EEC ) No 4064/89 (the Merger
previous acts, and to decide that the Commission is to                 Regulation). The Commission initiated proceedings in
request the Italian authorities to suspend until the                   respect of the transaction and, on 20 November 1996 ,
substance of the case is dealt with payment of the aid for             adopted the contested decision, declaring the
closure referred to in Decree Law No 396 of 20 June                    concentration between Kesko Oy and Tuko Oy to be
1994, now Law No 481 of 3 August 1994, and, in the                     incompatible with the common market and the
alternative, that the Commission should reopen the inter               functioning of the EEA Agreement.
partes procedure to investigate the aid to the applicant —
the President of the Court of First Instance made an order
on 17 December 1996 , the operative part of which is as                The applicant seeks the annulment of this decision on the
follows :                                                              following grounds:
                                                                       ( a ) The Commission failed to verify adequately the basis
1 . The application for interim measures is dismissed.                       of its competence despite the fact that its competence
                                                                             was challenged by the applicant on the ground that
                                                                             OFC was not empowered to make a request under
2.   The costs are reserved.                                                 Article 22 ( 3 ) of the Merger Regulation . The
                                                                             Commission also failed to state the reasons for which
                                                                             it assumed competence and rejected the applicant's
                                                                             arguments .
                                                                             These errors constitute infringements of Article 22 ( 3 )
                                                                             of the Merger Regulation, Article 190 of the EC
Action brought on 31 January 1997 by Kesko Oy against
                                                                             Treaty and the principle of good administration .
        the Commission of the European Communities
                         ( Case T-22/97)
                                                                       ( b ) In finding that the concentration in question may have
                           ( 97/C 131 /43 )                                  an effect upon trade between Member States, the
                                                                             Commission made a manifest error in its assessment of
                                                                             the relevant facts and its application of the law.
                (Language of the case: English)
                                                                             This error constitutes an infringement of Article 22 ( 3 )
                                                                             of the Merger Regulation and Article 190 of the EC
An action against the Commission of the European
Communities was brought before the Court of First                            Treaty.
Instance of the European Communities on 31 January
1997 by Kesko Oy, represented by Gerwin Van Gerven, of                 (c ) In finding that the applicant and independent K
the Brussels Bar, and Sarah Beeston, of the Law Society of                   retailers ( and T-retailers ) should be regarded as