title: Case C-235/13 P: Appeal brought on 29 April 2013 by Savoia e Jolanda Srl against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/20

         Appeal brought on 29 April 2013 by Savoia e Jolanda Srl against the order of the General Court (Fourth Chamber) of 20 February 2013 in Joined Cases T-278/00 to T-280/00, T-282/00 to T-286/00 and T-288/00 to T-295/00 Albergo Quattro Fontane and Others v Commission
   (Case C-235/13 P)
   2013/C 207/33
   Language of the case: Italian

      Parties

      Appellant: Savoia e Jolanda Srl (represented by: A. Bianchini and F. Busetto, avvocati)

      Other parties to the proceedings: European Commission, Comitato ‘Venezia vuole vivere’

      Form of order sought

               —

               Set aside the order of the General Court under appeal

               —

               Uphold the forms of order sought at first instance and, accordingly,

                           —

                           annul, in so far as is reasonable and in so far as it concerns the appellant, European Commission Decision No 2000/394/EC of 25 November 1999 on aid to firms in Venice and Chioggia by way of relief from social security contributions under Laws Nos 30/1997 and 206/1995;

                           —

                           in the alternative, annul that decision in so far as it imposes an obligation to recover the relief granted and in so far as it requires interest to be added to the amount of relief to be recovered for the periods taken into consideration in the judgment;

               —

               order the Commission to pay the costs incurred both at first instance and on appeal.

      Grounds of appeal and main arguments

   In support of the appeal, the appellant raises nine grounds of appeal:

                  First ground: the General Court erred in not taking into consideration the fact that the measures in question did not confer any advantage upon their beneficiaries given their compensatory nature.

                  Second ground: the Court erred in not excluding, or at least assessing, the likelihood that the measures in question would affect competition and intra-Community trade.

                  Third ground: the Court erred in holding that the derogations in Article 87(2)(b) EC (now Article 107(2)(b) TFEU) and Article 87(3)(b) EC (now Article 107(3)(b) TFEU) were inapplicable.

                  Fourth ground: the Court erred in holding that the derogation in Article 87(3)(c) EC (now Article 107(3)(c) TFEU) was inapplicable.

                  Fifth ground: the Court erred in holding that the derogations in Article 87(3)(d) and (e) EC (now Article 107(3)(d) and (e) TFEU) were inapplicable.

                  Sixth ground: the Court erred in holding that the derogation in Article 86(2) EC (now Article 106(2) TFEU) was inapplicable.

                  Seventh ground: the Court erred in not recognising the existence of the aid, thus infringing Article 88(3) EC (now Article 108(3) TFEU) and Article 15 of Regulation No 659/1999. (1)

                  Eighth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the recovery order.

                  Ninth ground: the Court erred in finding that Article 14(1) of Regulation No 659/1999 did not apply to the addition of interest.

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


title: Case C-120/05: Judgment of the Court (Third Chamber) of 9 November 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Heinrich Schulze GmbH & Co. KG i.L. v Hauptzollamt Hamburg-Jonas (Export refunds — Conditions for granting — Export declaration — Lack of documentary evidence — Use of other types of evidence)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/9

         Judgment of the Court (Third Chamber) of 9 November 2006 (reference for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Heinrich Schulze GmbH & Co. KG i.L. v Hauptzollamt Hamburg-Jonas
   (Case C-120/05) (1)

   (Export refunds - Conditions for granting - Export declaration - Lack of documentary evidence - Use of other types of evidence)
   (2006/C 326/18)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Heinrich Schulze GmbH & Co. KG i.L.

      Defendant: Hauptzollamt Hamburg-Jonas
   Re:
   Reference for a preliminary ruling — Finanzgericht Hamburg — Interpretation of the third subparagraph of Article 7(2) of Commission Regulation (EC) No 1222/94 of 30 May 1994 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds (OJ 1994 L 136, p. 5) — Exporter unable to fulfil the obligation to provide the competent authorities, in support of its declaration, with all documents and information regarded by those authorities as appropriate — Documents destroyed by force majeure — Possibility of using other types of evidence.
   Operative part of the judgment
   The third subparagraph of Article 7(1) of Commission Regulation (EC) No 1222/94 of 30 May 1994 laying down common detailed rules for the application of the system of granting export refunds on certain agricultural products exported in the form of goods not covered by Annex II to the Treaty, and the criteria for fixing the amount of such refunds, as amended by Commission Regulation (EC) No 229/96 of 7 February 1996, is to be interpreted as not precluding an exporter from providing evidence by other means where it is unable to provide in support of its export declaration documentary evidence relating to the quantities of products actually used in the manufacture of exported goods, even in a case of force majeure. The national authorities are to assess that other means of evidence, in accordance with the detailed rules laid down in the national law, provided, however, that those rules do not affect either the scope or effectiveness of Community law. For that purpose, national authorities must also take into consideration documents previously exchanged with the exporter when the application is made under the simplified procedure provided for in the third subparagraph of Article 3(2) of that regulation.

      (1)  OJ C 143, 11.06.2005.


title: Case C-313/08: Action brought on 14 July 2008 — Commission of the European Communities v Italian Republic

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/37

         Action brought on 14 July 2008 — Commission of the European Communities v Italian Republic
   (Case C-313/08)
   (2008/C 223/61)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Vesco and P. Dejmek, acting as Agents)

      Defendant: Italian Republic
   Form of order sought

               —

               Declare that, by failing to adopt all the laws, regulations and administrative provisions necessary to comply with Article 1(4), (5) and (6) of Directive 2003/58/EC (1) of the European Parliament and of the Council of 15 July 2003 amending Council Directive 68/151/EEC, as regards disclosure requirements in respect of certain types of companies or, in any event, by failing to communicate such provision to the Commission, the Italian Republic has failed to fulfil its obligations under that directive;

               —

               order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The prescribed period for transposing the directive into national law expired on 30 December 2006.

      (1)   OJ 2006 L 221, p. 13.


title: Case C-302/06: Reference for a preliminary ruling from the Krajský sud v Prešove (Slovakia) lodged on 7 July 2006 — František Kovaľský v Mesto Prešov and Dopravný podnik Mesta Prešov as

text:
               14.10.2006

               EN

               Official Journal of the European Union

               C 249/2

         Reference for a preliminary ruling from the Krajský sud v Prešove (Slovakia) lodged on 7 July 2006 — František Kovaľský v Mesto Prešov and Dopravný podnik Mesta Prešov as
   (Case C-302/06)
   (2006/C 249/04)
   Language of the case: Slovak
   Referring court
   Krajský sud v Prešove (Slovakia)
   Parties to the main proceedings

      Applicant: František Kovaľský

      Defendants: Mesto Prešov and Dopravný podnik Mesta Prešov as
   Questions referred

               1.

               Must the second paragraph of Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms, in connection with the possibility for States to enact laws to control the use of property, be interpreted as meaning that those laws must satisfy the condition of being in accordance not only with the general interest but also with the general principles of international law?

               2.

               Does Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms protect the property of natural and legal persons without regard to the value of the property?

               3.

               How may the general principles of international law be defined and specified for the purposes of the application of Article 1 of the Protocol to the Convention on the Protection of Human Rights and Fundamental Freedoms?


title: Appeal brought on 7 August 1996 by 1. the Stichting Certificatie Kraanverhuurbedrijf and 2. the Federatie van Nederlandse Kraanverhuurbedrijven against the order made on 4 June 1996 by the Court of First Instance of the European Communities in Case T-18/96 R between 1. the Stichting Certificatie Kraanverhuurbedrijf and 2. the Federatie van Nederlandse Kraanverhuurbedrijven, and the Commission of the European Communities (Case C-268/96 P (R))

text:
5 . 10 . 96             EN                   Official Journal of the European Communities                                      No C 294/5
     — the Directive confers upon the individual employee                Reference for a preliminary ruling by the Corte d'Appello
         rights against the State acting as employer ?                   ( Sezione Prima Civile ), Venice, by order of that court of
                                                                         1 8 April 1996 in the case of Ministero delle Finanze v. SPAC
3 . If the answer to Question 2 is in the affirmative : must the                                           SpA
     information which the employer is required to give                                           ( Case C-260/96 )
     under Article 2 ( 2 ) ( c ) ( ii ) of Directive 91 /533/EEC                                    ( 96/C 294/08 )
     concerning the ' nature or category of the work ' be
     understood as meaning the classification of a job in the
     sense that, if the employee 's grading according to the             Reference has been made to the Court of Justice of the
     salary scheme under a collective agreement requires                 European Communities by order of the Corte d'Appello
     fulfilment of the work specifications of a particular case          ( Sezione Prima Civile ) ( Court of Appeal , First Civil
     of a salary grade, he must be able to see , from the                Division ), Venice, of 18 April 1996 , which was received at
     notification of his grading in a particular salary grade            the Court Registry on 24 July 1 996 , for a preliminary ruling
     and case , whether he is entitled to                                in the case of Ministero delle Finanze v. SPAC SpA on the
                                                                         following question :
     — advancement on the basis of a continuous period of
         satisfactory service or advancement by case in salary
         grades ( C-253/96 ),                                            In proceedings before an Italian court for reimbursement of
                                                                         charges paid pursuant to provisions of national law which,
     — advancement on the basis of a continuous period                   in view of the interpretation given by the Court of Justice in
         of satisfactory service ( C-254/96 , C-255/96 ,                 Joined Cases C-71 /91 and C-178/91 Ponente Carni and
         C-2 56/96 ),                                                    Another v. Amministrazione delle Finanze dello Stato,
                                                                         conflict with Article 10 of Council Directive 69/335/EEC of
     — advancement on the basis of a continuous period of                17 July 1969 ( 1 ), is a provision of national law which , by
         satisfactory service and/or advancement by case                 removing such actions from the scope of the ordinary rules
          ( C-257/96 , C-258/96 )?                                       governing actions for the recovery of charges unduly paid,
                                                                         and making them subject to special rules governing the
                                                                         reimbursement of charges paid in error, requires that the
4 . If the answer to Question 3 is in the affirmative : does the         right of action be exercised within a limitation period
     notification pursuant to Article 2 ( 2 ) ( c ) ( ii ) of Directive  running from the time when payment was made rather than
     91 /533/EEC bind the employer in the sense that he is               from the time when the relevant Community Directive was
     bound by the classification of the job notified to the              correctly transposed into national law, compatible with the
     employee until such time as he ( the employer ) proves              principles laid down in that Directive and adopted in its
     that the grading was incorrect, or at least until he shows          interpretation , and the general principles of Community law
     conclusively ( perhaps in the form of a job'assessment )            upheld by the Court of Justice in Case C-208/91 ?
     that he graded the employee mistakenly or that the
     classification of the work has been lowered in the course
     of     time    or  by   amendment        to    the       collective (') OJ, English Special Edition 1969 ( II ), p. 412 .
     agreement ?
5 . If the answer to Question 4 is in the affirmative : is the
     implementation in German law of Article 9 ( 2 ) of
     Directive 91 /533/EEC by the Information Act of 20 July
     1995 ( Bundesgesetzblatt I, p. 946 ), to the effect that the
     employer has no obligation to give the employee written             Appeal brought on 7 August 1996 by 1 . the Stichting
     notification in the case of an employment relationship in           Certificatie Kraanverhuurbedrijf and 2 . the Federatie van
     existence when the Act comes into force , ' if and so far as        Nederlandse Kraanverhuurbedrijven against the order
     an     earlier   document    or    a   written       contract    of
                                                                         made on 4 June 1996 by the Court of First Instance of the
     employment gives the particulars required '                         European Communities in Case T-18/96 R between 1 . the
     ( paragraph 4 , sentence 2 , of the Information Act ), to be        Stichting Certificatie Kraanverhuurbedrijf and 2 . the
     regarded as in conformity with Community law, with                  Federatie van Nederlandse Kraanverhuurbedrijven, and the
     the consequence that such earlier notifications which                         Commission of the European Communities
     satisfy the requirements of Directive 91 /533/EEC ,
     whether it has been implemented or whether, in the                                       ( Case C-268/96 P ( R ))
     absence of implementation , it is directly applicable ,                                         ( 96/C 294/09 )
     continue to be valid , with the consequence that, if the
     employer gives a more recent written notification ( in the
     present case , in the course of proceedings ) which                 An appeal against the order made on 4 June 1996 by the
     conflicts with the earlier one, he must prove that the              Court of First Instance of the European Communities in
     later notification is correct ?                                     Case T-18/96 R between 1 . the Stichting Certificatie
                                                                         Kraanverhuurbedrijf and 2 . the Federatie van Nederlandse
                                                                         Kraanverhuurbedrijven, and the Commission of the
(') OJ No L 288 , 18 . 10 . 1991 , p . 32 .
                                                                         European Communities, was brought before the Court of
                                                                         Justice of the European Communities on 7 August 19 96 by
                                                                          1 . the Stichting Certificatie Kraanverhuurbedrijf and 2 . the
 ---pagebreak--- No C 294/6             EN                   Official Journal of the European Communities                                        5 . 10 . 96
Federatie van Nederlandse Kraanverhuurbedrijven,                       Administratif ( Administrative Court ), Paris, of 12 June
represented by M. van Empel, of the Amsterdam Bar, and T.              1996 , received at the Court Registry on 8 August 1996 , for a
Janssens, of the Brussels Bar, with an address for service in          preliminary ' ruling in the case of Société des Sucreries et
Luxembourg at the Chambers of Marc Loesch, 11 rue                      Raffineries d'Erstein against Fonds d'Intervention et
Goethe .                                                               Régularisation du Marché du Sucre , on the following
                                                                       questions :
The appellants claim that the Court should :
                                                                       — In an industrial site which processes sugar beet into
1 . Set aside the order of the president of the Court of First               white sugar, in which the first-stage installations take
     Instance in Case T- 18/96 R;                                            delivery of the sugar beet, process it and extract the
                                                                             sugar-bearing liquids and the second-stage installations
2 . Suspend payment by the               Stichting Certificatie              convert into white sugar the liquids and syrups in
     Kraanverhuurbedrijf ( SCK ) of the fine imposed on it by                question, which can be enriched by the addition of raw
     the Commission in the decision contested in the main                    cane sugar from the French Overseas Departments, can
     proceedings until the Court of First Instance has given                 the said second-stage installations, for the purposes of
     judgment in those proceedings , without requiring the                   the grant of refining aids for the refining of that sugar
     SCK to provide security in the form of a bank guarantee                  from the Overseas Departments, be regarded at all times
     or other security;                                                       as a 'production unit' and as a 'refinery' within the
                                                                             meaning of Regulations ( EEC ) No 1785/81 ('), Article 9
3 . Suspend payment by the Federatie Nederlandse                              and ( EEC ) No 2225/86 ( 2 )?
     Kranverhuurbedrijven ( FNK ) of the fine imposed on it
     by the Commission in the decision contested in the main           — If the answer is no, can such a complex of installations ,
     proceedings until the Court of First Instance has given                  intermittently and for non-continuous periods , be
     judgment in those proceedings, without requiring the                     regarded as a 'production unit' and as a ' refinery' within
     FNK to provide security in the form of a bank guarantee                  the meaning of those Regulations ?
     or other security;
                                                                       — If the answer to the preceding question is yes, must those
 4 . Order the Commission to grant to SCK and FNK access                      periods be limited to those in which the processing of
     to the files in Cases IV/34.179 , 34.202 , 216 , and to any              raw cane sugar into white sugar is carried out at a
     other files forming the basis for Decision 96/55 1 /EC,                  different time from the processing of syrups extracted
     including the Commission's internal documents relating                   from sugar beet in the first-stage installation on the same
     to consultation between DG III and DG IV concerning                      industrial site ?
     the Commission 's proceedings against FNK and SCK;
 5 . Order the Commission to pay the costs of these                    (') OJ No L 177, 1 . 7 . 1981 , p . 4 .
                                                                       ( 2 ) OJ No L 194, 17. 7. 1986, p . 7.
     proceedings, including the costs of the application for
      interim measures .
 In the alternative :
 6 . Set aside the order of the President of the Court of First
      Instance in Case T-18/96 R of 4 June 1996 and refer the
      case back to the Court of First Instance for another
                                                                       Reference for a preliminary ruling by the Tribunal
      ruling;                                                          Administratif, Paris, by order of that court of 12 June 1996
                                                                       in the case of SA Laboratoires Sarget against Fonds
 7. Order the Commission to pay the costs of the                             d'lntervention et Regularisation du Marche du Sucre
      proceedings, including the costs of the application for                                   ( Case C-270/96 )
      interim measures .
                                                                                ( 96/C 294/11 )
                                                                        Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Tribunal
 Reference for a preliminary ruling by the Tribunal                     Administratif ( Administrative Court ), Paris, of 12 June
 Administratif, Paris, by order of that court of 12 June 1996           1996 , received at the Court Registry on 8 August 1996 , for a
 in the case of Societe des Sucreries et Raffineries d'Erstein          preliminary ruling in the case of SA Laboratoires Sarget
 against Fonds d'lntervention et Regularisation du Marche               against Fonds d'lntervention et Regularisation du Marche
                               du Sucre                                 du Sucre , on the following question :
                         ( Case C-269/96 )
                           ( 96/C 294/ 10 )                             In view of their composition, presentation and functions, do
                                                                        the products ' Sargenor', ' Sarvit', ' Lysivit' and ' Dynamisan '
  Reference has been made to the Court of Justice of the                 fall within the scope of Council Regulation ( EEC )
  European Communities by an order of the Tribunal                      No 1010/86 of 25 March 1986 (M on the classification of


title: Case C-268/15: Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Fernand Ullens de Schooten v État belge (Reference for a preliminary ruling — Fundamental freedoms — Articles 49, 56 and 63 TFEU — Situation confined in all respects within a single Member State — Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/9

         Judgment of the Court (Grand Chamber) of 15 November 2016 (request for a preliminary ruling from the Cour d’appel de Bruxelles — Belgium) — Fernand Ullens de Schooten v État belge
   (Case C-268/15) (1)

   ((Reference for a preliminary ruling - Fundamental freedoms - Articles 49, 56 and 63 TFEU - Situation confined in all respects within a single Member State - Non-contractual liability of a Member State for damage caused to individuals by breaches of EU law for which the national legislature and courts are to be held responsible))
   (2017/C 014/11)
   Language of the case: French

      Referring court

   Cour d’appel de Bruxelles

      Parties to the main proceedings

      Applicant: Fernand Ullens de Schooten

      Defendant: État belge

      Operative part of the judgment

   European Union law must be interpreted as meaning that the system of non-contractual liability of a Member State for damage caused by a breach of that law does not apply in the case of damage allegedly caused to an individual as a result of an alleged breach of a fundamental freedom laid down in Article 49, 56 or 63 TFEU by national legislation that is applicable without distinction to the State’s own nationals and those of other Member States, where, in a situation which is confined in all respects within a single Member State, there is no link between the subject or circumstances of the dispute in the main proceedings and those articles.

      (1)  OJ C 279, 24.8.2015.


title: Case T-323/06: Action brought on 21 November 2006 — FRESYGA v Commission

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/73

         Action brought on 21 November 2006 — FRESYGA v Commission
   (Case T-323/06)
   (2006/C 326/150)
   Language of the case: Spanish
   Parties

      Applicant: Fresyga (Almería, Spain) (represented by: J. Rovira Daudí, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought by the applicant

               —

               a declaration that this action for annulment is admissible and that the Decision of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region is in part invalid, in so far as it affects ES6110006, and that that SCI should be removed from its sphere of application;

               —

               or, in the alternative, a declaration that the Decision of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region is in part invalid, in so far as the property ‘Coto de Padilla’ situated in the municipal (1) district of Níjar, with an area of 8 500 000 square metres must be removed from SCI ES6110006;

               —

               an order that the Commission should pay the costs.

         Pleas in law and main arguments
   This action challenges the Commission Decision of 19 July 2006 adopting, pursuant to Council Directive 92/43/EEC, the list of sites of Community importance for the Mediterranean biogeographical region, in that it declares the ES6110014 ‘Ramblas de Jergal, Tabernas y Sur de Sierra Alhamilla’ to be a Site of Community Interest in its entirety or, in the alternative, in so far as that list includes property belonging to the applicant.
   The pleas in law and main arguments are similar to those put forward in Case T-322/06 Manuel Espinosa and Others v Commission.
   The applicant claims, in particular, that in the period elapsing between the proposal and the approval of SCI ES6110006 the Commission did not undertake any assessment of the social or economic features of the area, or of the state of protection of the pieces of land, in spite of the requests to that end made by the municipality of Níjar, but instead merely accepted the proposal made by the Regional Council of Andalucia without evaluating whether that land was suitable.

      (1)  OJ L 259, 21.09.2006, p. 1.


title: Case F-13/10: Action brought on 12 February 2010 — Nicola v EIB

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/53

         Action brought on 12 February 2010 — Nicola v EIB
   (Case F-13/10)
   2010/C 134/89
   Language of the case: Italian

      Parties

      Applicant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Defendant: European Investment Bank

      Subject-matter and description of the proceedings

   Application for annulment of the staff report for 2008, both as regards the part relating to objectives and the part relating to assessment, and of the promotions decided upon on 18 March 2009. In addition, an order that the defendant pay compensation for the material and non-material damage caused to the applicant.

      Form of order sought

               —

               Annul the provision of 23 September 2009, in so far as the Appeals Committee rejected the applicant’s appeal against the staff report for 2008.

               —

               Annul the staff report for 2008, both as regards the part relating to objectives and the part relating to assessment.

               —

               Annul all related, consequent and prior measures, including the guidelines issued by the HR Directorate for summarising the appraisal by using one of the first letters of the alphabet and the quantitative limits imposed in awarding the mark A or B+, and the promotions decided upon on 18 March 2009, given that, in the light of the view expressed by the applicant’s superiors, the EIB failed to take him into consideration under the heading ‘Promotions from Function E to D’.

               —

               Order the EIB to pay compensation for the material and non-material damage suffered and to pay the costs of the proceedings, together with interest, currency revaluation to be taken into account in fixing the amount awarded.


20150731068617182015/C 270/254252004TC27020150817EN01ENINFO_JUDICIAL20150702212111Joined Cases T-425/04 RENV and T-444/04 RENV: Judgment of the General Court of 2 July 2015 — France v Commission (State aid — Financial measures in favour of France Télécom — Shareholder loan offer — Public statements of the French State — Decision declaring the aid incompatible with the internal market — Absence of extension of the formal investigation procedure — Rights of the defence — Test of the prudent private investor — Normal market conditions — Errors of law — Manifest errors of assessment)
 ---documentbreak--- C2702015EN2110120150702EN0025211211Judgment of the General Court of 2 July 2015 — France v Commission
   (Joined Cases T-425/04 RENV and T-444/04 RENV) (
         1
      )
   ‛(State aid — Financial measures in favour of France Télécom — Shareholder loan offer — Public statements of the French State — Decision declaring the aid incompatible with the internal market — Absence of extension of the formal investigation procedure — Rights of the defence — Test of the prudent private investor — Normal market conditions — Errors of law — Manifest errors of assessment)’2015/C 270/25Language of the case: French
      Parties

      Applicants: French Republic (represented by: G. de Bergues, D. Colas and J. Bousin, acting as Agents) (T-425/04 RENV); and Orange, formerly France Télécom (Paris, France) (represented by: S. Hautbourg and S. Cochard-Quesson, lawyers) (case T-444/04 RENV)

      Defendant: European Commission (represented by: C. Giolito and D. Grespan, acting as Agents)

      Intervener in support of the applicant, the French Republic: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents, and by U. Soltész, lawyer)

      Re:

   Actions for the annulment of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom (OJ 2006 L 257, p. 11).

      Operative part of the judgment

   The Court:

            1.

            Annuls Article 1 of Commission Decision 2006/621/EC of 2 August 2004 on the State Aid implemented by France for France Télécom;

            2.

            Declares that it is no longer necessary to adjudicate on the claims for annulment of Article 2 of Decision 2006/621;

            3.

            Orders the European Commission to bear its own costs as well as eight-tenths of the costs incurred by the French Republic and Orange, formerly France Télécom;

            4.

            Orders the French Republic and Orange, formerly France Télécom, each to bear two-tenths of their own costs;

            5.

            Orders the Federal Republic of Germany to bear its own costs.

      (
         1
      )	OJ C 19, 22.1.2005.


title: Case F-113/06: Action brought on 29 September 2006 — Bouis and Others v Commission

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/49

         Action brought on 29 September 2006 — Bouis and Others v Commission
   (Case F-113/06)
   (2006/C 281/88)
   Language of the case: French
   Parties

      Applicants: Didier Bouis (Overijse, Belgium) and Others (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               declare that Article 13 of the General Provisions for implementing Article 45 of the Staff Regulations (GPI) is unlawful;

               —

               annul the merit list and the list of officials promoted to grade A*13 in the 2005 promotion procedure, in so far as the applicants' names are not included;

               —

               annul the decisions to award transitional priority points to the applicants, in that these points are limited to one point per year of seniority in grade up to a maximum of 7 points without taking into account the real merits of the applicants;

               —

               annul the decisions to award to the applicants neither the priority points awarded by the Directors and Directors-General, nor the priority points awarded by the Promotion Committee, in particular in recognition of work undertaken in the interest of the institution in the 2003 and 2004 promotion procedures;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of their application, the applicants submit that the contested decisions disregard the scope of Article 45 of the Staff Regulations, which imposes on the Appointing Authority the obligation to choose officials that are to be promoted essentially on the basis of a consideration of their comparative merits.
   They also claim that Article 13 of the GPI, as interpreted and applied by the Commission, is unlawful, since it disregards the scope of the provision which it is supposed to implement as well as the general principle of equal treatment and non-discrimination.


title: Case C-463/06: Judgment of the Court (Second Chamber) of 13 December 2007 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — FBTO Schadeverzekeringen NV v Jack Odenbreit (Regulation (EC) No 44/2001 — Jurisdiction in matters relating to insurance — Liability insurance — Action brought by the injured party directly against the insurer — Rule of jurisdiction of the courts for the place where the plaintiff is domiciled)

text:
               23.2.2008

               EN

               Official Journal of the European Union

               C 51/23

         Judgment of the Court (Second Chamber) of 13 December 2007 (reference for a preliminary ruling from the Bundesgerichtshof (Germany)) — FBTO Schadeverzekeringen NV v Jack Odenbreit
   (Case C-463/06) (1)

   (Regulation (EC) No 44/2001 - Jurisdiction in matters relating to insurance - Liability insurance - Action brought by the injured party directly against the insurer - Rule of jurisdiction of the courts for the place where the plaintiff is domiciled)
   (2008/C 51/37)
   Language of the case: German
   Referring court
   Bundesgerichtshof
   Parties to the main proceedings

      Applicant: FBTO Schadeverzekeringen NV

      Defendant: Jack Odenbreit
   Re:
   Reference for a preliminary ruling — Bundesgerichtshof — Interpretation of Articles 9(1)(b) and 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Legal proceedings against the civil liability insurance provider in the Member State in which the injured party is domiciled — Beneficiary of insurance
   Operative part of the judgment
   The reference in Article 11(2) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters to Article 9(1)(b) of that regulation is to be interpreted as meaning that the injured party may bring an action directly against the insurer before the courts for the place in a Member State where that injured party is domiciled, provided that such a direct action is permitted and the insurer is domiciled in a Member State.

      (1)  OJ C 326, 30.12.2006.


title: Case C-314/07: Order of the President of the Court of 11 February 2008 — Commission of the European Communities v Portuguese Republic

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/28

         Order of the President of the Court of 11 February 2008 — Commission of the European Communities v Portuguese Republic
   (Case C-314/07) (1)

   (2008/C 128/58)

      Language of the case: Portuguese

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

      (1)  OJ C 199, 25.8.2007.


title: Case C-501/09: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 December 2009 — Lothar Lohmeyer v Finanzamt Minden

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/22

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 3 December 2009 — Lothar Lohmeyer v Finanzamt Minden
   (Case C-501/09)
   2010/C 63/36
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Lothar Lohmeyer

      Defendant: Finanzamt Minden

      Questions referred

               1.

               Is the term ‘foodstuffs for human consumption’ in Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes (1) to be interpreted as covering only ‘take-away’ foodstuffs as typically sold in the grocery business, or does it also cover dishes and meals which have been prepared by boiling, grilling, roasting, baking or other means for immediate consumption?

               2.

               In the event that ‘foodstuffs for human consumption’ within the meaning of Category 1 of Annex H to Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes also covers dishes or meals for immediate consumption:
               Is the first subparagraph of Article 6(1) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes to be interpreted as covering the sale of freshly prepared dishes or meals which the customer does not take away, but consumes on the spot making use of facilities for consumption such as counters, tables for standing at or the like?

      (1)  OJ 1977 L 145, p. 1.


title: Case C-145/12 P: Appeal brought on 26 March 2012 by Neubrandenburger Wohnungsgesellschaft mbH against the order of the General Court (Fifth Chamber) delivered on 9 January 2012 in Case T-407/09 Neubrandenburger Wohnungsgesellschaft mbH v European Commission

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/9

         Appeal brought on 26 March 2012 by Neubrandenburger Wohnungsgesellschaft mbH against the order of the General Court (Fifth Chamber) delivered on 9 January 2012 in Case T-407/09 Neubrandenburger Wohnungsgesellschaft mbH v European Commission
   (Case C-145/12 P)
   2012/C 138/15
   Language of the case: German

      Parties

      Appellant: Neubrandenburger Wohnungsgesellschaft mbH (represented by: M. Núñez-Müller, Rechtsanwalt, and J. Dammann de Chapto, Rechtsanwältin)

      Other parties to the proceedings: European Commission, Bavaria Immobilien Beteiligungsgesellschaft mbH & Co. Objekte Neubrandenburg KG, Bavaria Immobilien Trading GmbH & Co. Immobilien Leasing Objekt Neubrandenburg KG

      Form of order sought

   The appellant claims that the Court of Justice should:

               —

               set aside the order under appeal;

               —

               give final judgment in the case and annul the Commission’s decision of 29 July 2009 (D/53320) and, in any event, give a final decision on the admissibility of the action in Case T-407/09,

                     in the alternative:

               declare that the Commission failed to comply with its duties resulting from Article 108 TFEU and Regulation (EC) No 659/1999 by failing to initiate the formal investigation procedure under Article 108(2) TFEU;

               —

               order the Commission and the interveners in support of the Commission to pay the costs of the appeal proceedings and the costs incurred at first instance in Case T-407/09.

      Pleas in law and main arguments

   The present appeal has been brought against the order of the General Court of 9 January 2012 in Case T-407/09, by which that court dismissed as inadmissible the action brought by the applicant (now the appellant) for (i) the annulment of the Commission’s decision, claimed to be contained in a letter dated 29 July 2009, in which it states that certain contracts concluded by the applicant on the sale of apartments in the context of the privatisation of public apartments in Neubrandenburg did not fall within the scope of Article 87(1) EC, and (ii) a declaration that the Commission failed to act, within the meaning of Article 232 EC, since it did not give its opinion on those contracts in accordance with Article 4 of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 88 EC (OJ 1999 L 83, p. 1).
   The appellant essentially raises four grounds in support of its appeal:

               First, the order under appeal infringes the fourth paragraph of Article 263 TFEU, since the General Court wrongly concluded that the Commission’s letter of 29 July 2009 did not constitute a challengeable decision for the purposes of that provision. The General Court construed the letter solely on the basis of its wording. However, in accordance with the principles developed in the settled case-law of the Court of Justice, the General Court should have taken account of the nature of the letter, the aim pursued by the Commission with its letter and the context in which the letter was drafted.

               Second, the order under appeal infringes the guarantee of effective legal protection under European Union law. The General Court found the Commission’s letter of 29 July 2009 to be unchallengeable primarily on the ground that the Commission classed the aid assessment contained in its letter as ‘provisional’. If the Commission were able to turn a legally conclusive assessment into a measure with no legal effects simply be orally classing its assessment as ‘provisional’, it would be free to determine when to adopt a challengeable decision or not. Effective legal protection of individual rights would then no longer be possible.

               Third, the order under appeal infringes Article 265 TFEU, since the General Court, first, found that the letter of 29 July 2009 could not be challenged and, second, wrongly found that the conditions for bringing an action for failure to act had not been satisfied. Consequently, the appellant was denied all of its rights of legal protection.

               Finally, the order fails to provide adequate grounds in various instances and thereby infringes the duty to state reasons laid down in Article 81 of the Rules of Procedure of the General Court.


title: Case T-209/13: Judgment of the General Court of 11 April 2014 — Olive Line International v OHIM (OLIVE LINE) (Community trade mark — Application for registration of the Community figurative mark OLIVE LINE — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               10.6.2014

               EN

               Official Journal of the European Union

               C 175/40

         Judgment of the General Court of 11 April 2014 — Olive Line International v OHIM (OLIVE LINE)
   (Case T-209/13) (1)

   ((Community trade mark - Application for registration of the Community figurative mark OLIVE LINE - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009))
   2014/C 175/54
   Language of the case: Spanish

      Parties

      Applicant: Olive Line International, SL (Madrid, Spain) (represented by: M. Aznar Alonso, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: Ó. Mondéjar Ortuño, Agent)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 31 January 2013 (Case R 1447/2012-1) concerning an application for registration of the figurative sign OLIVE LINE as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Olive Line International, SL to pay the costs.

      (1)  OJ C 178, 22.6.2013


title: Case T-587/17: Action brought on 28 August 2017 — Unigroup v EUIPO — Pronova Laboratories (nailicin)

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/48

         Action brought on 28 August 2017 — Unigroup v EUIPO — Pronova Laboratories (nailicin)
   (Case T-587/17)
   (2017/C 347/63)
   Language in which the application was lodged: English

      Parties

      Applicant: Unigroup ApS (Lyngby, Denmark) (represented by: M. Rijsdijk, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Pronova Laboratories BV (Amsterdam, Netherlands)

      Details of the proceedings before EUIPO

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: EU word mark ‘nailicin’ — Application for registration No 14 096 499

      Procedure before EUIPO: Opposition proceedings

      Contested decision: Decision of the fifth Board of Appeal of EUIPO of 9 June 2017 in Case R 2359/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               declare Benelux registration no. 894 557 unsubstantiated and remit the matter to the Opposition Division or Board of Appeal of EUIPO;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               violation of Rule 19 of Commission Regulation No 2868/95 implementing Council Regulation No 40/94 on the Community trade mark.


title: Case C-73/10 P: Order of the Court of 16 November 2010 — Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG v European Commission (Appeal — Competition — Commission Decision relating to a proceeding under Article 81 EC — Action for annulment — Time-limit — Action brought out of time — Reasons justifying derogation from the time-limit for bringing proceedings — Right of access to a court — Principles of legality and proportionality — Appeal clearly unfounded)

text:
               19.3.2011

               EN

               Official Journal of the European Union

               C 89/2

         Order of the Court of 16 November 2010 — Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG v European Commission
   (Case C-73/10 P) (1)

   (Appeal - Competition - Commission Decision relating to a proceeding under Article 81 EC - Action for annulment - Time-limit - Action brought out of time - Reasons justifying derogation from the time-limit for bringing proceedings - Right of access to a court - Principles of legality and proportionality - Appeal clearly unfounded)
   2011/C 89/03
   Language of the case: English

      Parties

      Appellant: Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG (represented by: A. Rinne, Rechtsanwalt, S. Kon and C. Humpe, Solicitors, and C. Vajda QC)

      Other party to the proceedings: European Commission (represented by: M. Kellerbauer and A. Biolan, Agents)

      Re:

   Appeal against the judgment of the Court of First Instance (Eighth Chamber) of 30 November 2009 in Case T-2/09 Internationale Fruchtimport Gesellschaft Weichert & Co. KG v Commission of the European Communities dismissing, as manifestly inadmissible, an action for partial annulment of Commission Decision C(2008) 5955 final of 15 October 2008 relating to a proceeding under Article 81 EC (Case COMP/39.188 — Bananas) concerning a cartel on a part of the European market in bananas, or, in the alternative, annulling or reducing the fine imposed on the applicant — Time-limit for bringing an action — Lateness

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Internationale Fruchtimport Gesellschaft Weichert GmbH & Co. KG shall pay the costs.

      (1)  OJ C 80, 27.3.2010.


title: Case T-268/07: Action brought on 19 July 2007 — Agrícola del Sureste v Council and Commission

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/13

         Action brought on 19 July 2007 — Agrícola del Sureste v Council and Commission
   (Case T-268/07)
   (2007/C 223/19)
   Language of the case: Spanish
   Parties

      Applicant: S. Coop. Agrícola del Sureste (Murcia, Spain) (represented by: L. Ortiz Blanco, lawyer)

      Defendants: Council of the European Union and Commission of the European Communities
   Form of order sought

               —

               to uphold the present action for damages, in accordance with Article 288 EC, and declare the applicant is entitled to be financially compensated by the Council and the Commission jointly and severally in the sum total of one hundred and forty-two thousand five hundred and eighty five euros (EUR 142 585);

               —

               order the defendants to pay the costs.

         Pleas in law and main arguments
   The pleas in law and the main arguments are the same as those raised in Case T-217/07 Las Palmeras v Council and Commission.


title: Case T-626/13: Judgment of the General Court of 2 October 2015 — The Tea Board v OHIM — Delta Lingerie (DARJEELING collection de lingerie) (Community trade mark — Opposition proceedings — Figurative mark Darjeeling collection de lingerie — Earlier Community collective word and figurative marks DARJEELING — Relative grounds for refusal — Article 8(1)(b) and (5) of Regulation (EC) No 207/2009)

text:
               23.11.2015

               EN

               Official Journal of the European Union

               C 389/39

         Judgment of the General Court of 2 October 2015 — The Tea Board v OHIM — Delta Lingerie (DARJEELING collection de lingerie)
   (Case T-626/13) (1)

   ((Community trade mark - Opposition proceedings - Figurative mark Darjeeling collection de lingerie - Earlier Community collective word and figurative marks DARJEELING - Relative grounds for refusal - Article 8(1)(b) and (5) of Regulation (EC) No 207/2009))
   (2015/C 389/41)
   Language of the case: English

      Parties

      Applicant: The Tea Board (Calcutta, India) (represented by: A. Nordemann and M. Maier, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Delta Lingerie (Cachan, France) (represented by: G. Marchais and P. Martini-Berthon, lawyers)

      Re:

   Action brought against the decision of the Second Board of Appeal of OHIM of 17 September 2013 (Case R 1501/2012-2) concerning opposition proceedings between The Tea Board and Delta Lingerie.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 17 September 2013 (Case R 1501/2012-2) as regards the goods in Class 25 of the Nice Agreement concerning the International Classification of Goods and Services for the purposes of the Registration of Marks of 15 June 1957, as revised and amended, and the ‘[r]etailing of women’s underwear and lingerie, perfumes, toilet water and cosmetic lotions, household and bath linen’ services in Class 35 of that agreement covered by the mark applied for;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders each party to bear its own costs.

      (1)  OJ C 45, 15.2.2014.


title: Action brought on 2 August 1998 by Luc Veron against the Commission of the European Communities (Case T-125/98)

text:
10.10.98              EN                Official Journal of the European Communities                                  C 312/19
Bar, with an address for service in Luxembourg at the              The applicant claims that the Court should:
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.
                                                                   Ð annul the decision to deduct from the applicant's
The applicant claims that the Court should:                             salary the sum of BFR 160 750 in respect of
                                                                        transport/mission expenses (FO)',
Ð annul the decision not to renew his contract as a
    member of the temporary staff attached to the                  Ð order the Commission to repay to the applicant the
    European Training Foundation,                                       sums improperly deducted, together with interest at
                                                                        the rate of 8 % per annum from the date on which the
Ð annul, in so far as may be necessary, the decision                    deduction was made to the date of repayment,
    concerning the drawing-up of the applicant's
    assessment report for the period 1995 to 1997,                 Ð order the defendant to pay the costs.
Ð order the defendant to pay the costs.                            Pleas in law and main arguments adduced in support:
Pleas in law and main arguments adduced in support:                The applicant contests the refusal of the appointing
                                                                   authority to pay the cost of business class air travel for
The applicant, a member of the temporary staff of the              him and his family from Brussels to Los Angeles via
European Training Foundation, contests the refusal to              London, undertaken pursuant to the travel order signed by
renew his contract as a temporary staff member.                    his hierarchical superior, the Director-General of DG XXIII
                                                                   and the Director-General of Personnel and Administration,
In support of his claims, he asserts, first, that there has        as authorising officer. That refusal is based, in particular,
been a manifest error of assessment in the present case. He        on the considerations that, under the fellowship rules',
states in that regard that his assessment report is                which are more restrictive than the provisions of the Staff
incomplete and that it does not therefore reflect all the          Regulations governing missions, travel arrangements must
tasks performed by him during the term of his contract.            be made on the basis of the most economical fare
Similarly, the applicant complains in particular of the lack       available, and that the Commission is to bear the cost of
of appreciation of the considerable amount of work                 the ticket of only one child. According to the defendant,
carried out in the context of the MEDA programme, as               the provisions applicable to ordinary missions cannot be
well as the error resulting from the statement                     applied to fellowship' missions, since specific rules have
unsatisfactory' appearing under the heading relating to           been adopted in the latter regard.
performance of tasks involving the management of
financial and other resources, no task of that kind having         In support of his claims, the applicant maintains, first,
been entrusted to him. It was on the basis of such a               that the special rules applicable to fellowship' missions,
defective assessment, therefore, that the authority                adopted in the form of a simple administrative decision,
empowered to conclude contracts decided not to renew               are illegal, in that they infringe Article 11 et seq. of
the applicant's contract.                                          Annex VII to the Staff Regulations and Article 3 of the
                                                                   Guide des Missions'. He states in the alternative, with
Second, the contested decision is vitiated by a failure to         regard to that point, that the administrative provisions
provide an adequate statement of reasons, making it                relied on by the appointing authority do not require the
impossible for the Community judicature to assess                  official concerned to travel in the cheapest class but
whether it is justified.                                           merely to procure a ticket at the most economical rate for
                                                                   the class in which he is authorised to travel.
                                                                   The applicant further maintains that, according to
                                                                   Community case-law, he was entitled to rely on the
                                                                   apparent legality of the travel order, and could therefore
Action brought on 2 August 1998 by Luc Veron against               legitimately expect that all the provisions of that order
       the Commission of the European Communities                  would be upheld. In those circumstances, he must be
                                                                   regarded as having acquired a legitimate expectation that
                       (Case T-125/98)
                                                                   all the provisions contained in the relevant travel order
                         (98/C 312/46)                             would be lawful. In the alternative, the applicant claims
                                                                   that, even if the travel order was unlawfully drawn up, the
               (Language of the case: French)                      Commission failed to withdraw it within a reasonable
                                                                   time.
An action against the Commission of the European
Communities was brought before the Court of First                  Lastly, the applicant also claims that there has been a
Instance of the European Communities on 2 August 1998              manifest error of assessment in the present case, together
by Luc Veron, residing in Brussels, represented by Jean-           with breaches, operating to his detriment, of the principle
NoeÈl Louis, VeÂronique Leclercq, Ariane Tornel and                of equal treatment and of the right to keep the family
FrancËoise Parmentier, of the Brussels Bar, with an address        together as a unit.
for service in Luxembourg at the offices of Fiduciaire
Myson SARL, 30 Rue de Cessange.


title: Case T-140/09: Action brought on 7 April 2009 — Prysmian, Prysmian Cavi and Sistemi Energia v Commission

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/50

         Action brought on 7 April 2009 — Prysmian, Prysmian Cavi and Sistemi Energia v Commission
   (Case T-140/09)
   2009/C 141/104
   Language of the case: Italian

      Parties

      Applicants: Prysmian (Milan, Italy), Prysmian Cavi and Sistemi Energia (Milan, Italy) (represented by: A. Pappalardo, lawyer, F. Russo, lawyer, M.L. Stasi, lawyer, C. Tesauro, lawyer)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               Annul the Decision of 9 January 2009 by which the Commission ordered the inspection (Case COMP/39610 — Surge);

               —

               Declare the Commission’s decision to extract a copy of the entire contents of the hard disks of some of the directors of Prysmian and to analyse the content thereof in its own offices in Brussels to be unlawful and contrary to Article 20(2) of Regulation No 1/2003;

               —

               In the alternative, declare the conduct of the inspectors to be abusive in that, in interpreting incorrectly the powers of inspection conferred on them by the Decision, they acquired copies of the entire content of hard disks in order to inspect the content thereof in the Commission’s offices in Brussels;

               —

               Order the Commission to return to Prysmian all documents obtained unlawfully in the inspections at its Milan head office or extracts from the hard disks analysed in its own offices in Brussels;

               —

               Order the Commission to refrain from using in any manner the documents unlawfully obtained and, in particular, from using them in proceedings initiated for investigating alleged anti-competitive conduct in the electrical cable sector contrary to Article 81 EC;

               —

               Order the Commission to pay the costs.

      Pleas in law and main arguments

   The present action has been brought in relation to the Commission Decision of 9 January 2009 concerning the investigation into possible anti-competitive conduct in the electrical cable sector contrary to Article 81 EC, by which the applicants were ordered to submit to an inspection pursuant to Article 20(4) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty. (1)

   It is stated in that regard that, during the implementation phase of the abovementioned decision, the representatives of the applicants were informed that the defendant had decided to produce forensic images of the hard disks of some computers, in order to continue the investigation in the Commission’s offices in Brussels.
   The applicants put forward the following in support of its action:

               —

               Regulation No 1/2003 provides expressly that the powers of inspection are to be exercised at the premises of the undertaking, providing for the possibility that those premises may be sealed should the inspection extend over a number of days, and no legislative provision authorises the Commission to make copies of entire hard disks, transport them outside the premises of the undertaking and analyse those documents in its own offices;

               —

               The defendant unduly prolonged the duration of the inspection by roughly one month, placing the applicants in a situation of uncertainty as to the actual scope of the investigation;

               —

               The Commission also prevented them, for some weeks, from making a fully-informed assessment as to whether it might avail itself of the Leniency Notice;

               —

               The defendant’s conduct complained of constitutes a clear infringement of the limits the Community legislature placed on its powers of inspection, such as to significantly jeopardise the possibility for the undertakings subject to the inspections to prepare their defence.

      (1)  OJ 2003 L 1, p. 1.


title: Case C-228/11: Judgment of the Court (First Chamber) of 16 May 2013 (request for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Melzer v MF Global UK Ltd (Judicial cooperation in civil matters — Special jurisdiction in matters of tort, delict and quasi-delict — Cross-border participation by several persons in the same unlawful act — Possibility of establishing territorial jurisdiction according to the place where the act was committed by one of the perpetrators of the damage other than the defendant ( ‘wechselseitige Handlungsortzurechnung’ ))

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/5

         Judgment of the Court (First Chamber) of 16 May 2013 (request for a preliminary ruling from the Landgericht Düsseldorf — Germany) — Melzer v MF Global UK Ltd
   (Case C-228/11) (1)

   (Judicial cooperation in civil matters - Special jurisdiction in matters of tort, delict and quasi-delict - Cross-border participation by several persons in the same unlawful act - Possibility of establishing territorial jurisdiction according to the place where the act was committed by one of the perpetrators of the damage other than the defendant (‘wechselseitige Handlungsortzurechnung’))
   2013/C 225/07
   Language of the case: German

      Referring court

   Landgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Melzer

      Defendant: MF Global UK Ltd

      Re:

   Request for a preliminary ruling — Landgericht Düsseldorf — Interpretation of Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001, L 12, p. 1) — Special jurisdiction relating to matters in tort or delict or quaisi-delict — Determination of territorial jurisdiction to hear an action for damages in the case of cross-border participation of several people in a single unlawful act — Possibility of establishing that jurisdiction according to the place where the harmful act was committed by a perpetrator other than the defendant

      Operative part of the judgment

   Article 5(3) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters 2001 must be interpreted as meaning that it does not allow the courts of the place where a harmful event occurred which is imputed to one of the presumed perpetrators of damage, who is not a party to the dispute, to take jurisdiction over another presumed perpetrator of that damage who has not acted within the jurisdiction of the court seised.

      (1)  OJ C 211, 16.7.2011.


title: Case T-293/11: Judgment of the General Court of 14 March 2014  — Holcim (Deutschland) and Holcim v Commission (Competition  — Administrative proceeding  — Decision to request information  — Necessity of the information requested  — Duty to state reasons  — Proportionality)

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/29

         Judgment of the General Court of 14 March 2014 — Holcim (Deutschland) and Holcim v Commission
   (Case T-293/11) (1)

   ((Competition - Administrative proceeding - Decision to request information - Necessity of the information requested - Duty to state reasons - Proportionality))
   2014/C 135/35
   Language of the case: German

      Parties

      Applicants: Holcim (Deutschland) AG (Hamburg, Germany) and Holcim Ltd (Zurich, Switzerland) (represented by: P. Niggemann and K. Gaßler, lawyers)

      Defendant: European Commission (represented by: M. Kellerbauer, R. Sauer and C. Hödlmayer, acting as Agents, and A. Böhlke, lawyer)

      Re:

   Action for annulment of Commission Decision C(2011) 2363 final of 30 March 2011, in the context of a procedure pursuant to Article 18(3) of Council Regulation (EC) No 1/2003 (Case COMP/39520 — cement and related products).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Holcim (Deutschland) AG and Holcim Ltd to pay the costs, including those of the interim proceedings.

      (1)  OJ C 238, 13.8.2011.


title: Case C-197/07 P: Appeal brought on 12 April 2007 by Aktieselskabet af 21. november 2001 against the judgment of the Court of First Instance (First Chamber) delivered on 6 February 2007 in Case T-477/04: Aktieselskabet af 21. November 2001 v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), TDK Kabushiki Kaisha (TDK Corp.)

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/11

         Appeal brought on 12 April 2007 by Aktieselskabet af 21. november 2001 against the judgment of the Court of First Instance (First Chamber) delivered on 6 February 2007 in Case T-477/04: Aktieselskabet af 21. November 2001 v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM), TDK Kabushiki Kaisha (TDK Corp.)
   (Case C-197/07 P)
   (2007/C 129/20)
   Language of the case: English
   Parties

      Appellant: Aktieselskabet af 21. november 2001 (represented by: C. Barrett Christiansen, advokat)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), TDK Kabushiki Kaisha (TDK Corp.)
   Form of order sought
   The appellant claims that the Court should:

               —

               set aside in whole the decision of the Court of First Instance dated 6 February 2007, case T-477/04 (the contested decision)

               —

               order the Office for Harmonization in the Internal Market (OHIM) to pay the costs of the proceedings before the Court of Justice.

               —

               set aside the decision of the First Board of Appeal of the Office for the Harmonization in the Internal Market dated 7 October 2004, case R-364/2003-1

               —

               order the Office for Harmonization in the Internal Market (OHIM) to pay the costs of the proceedings before the Court of First Instance and OHIM.

         Pleas in law and main arguments
   With the present appeal, the Appellant submits that:

               in finding reputation under 8(5) CTMR for the earlier marks the Court of First Instance wrongly:

                           1.

                           did not, in the contested decision, distinguish between the 36 earlier marks

                           2.

                           took into account evidence which did not comply with official OHIM guidelines

                           3.

                           took into account evidence with no reference to the earlier marks

                           4.

                           took into account undated evidence

                           5.

                           did not take into account that the relevant date for proving reputation is the filing date of the contested CTM application

                           6.

                           confirmed reputation based on evidence which was not approximate in time to the filing date of the contested CTM application

                           7.

                           took into account a market survey as evidence of reputation without any proof as to:

                                       (a)

                                       whether it has been conducted by an independent and recognised research institute or company

                                       (b)

                                       the number and profile (sex, age, occupation and background) of the interviewees

                                       (c)

                                       the method and circumstances under which the survey was carried out and the complete list of questions included in the questionnaire

                                       (d)

                                       whether the percentage reflected in the survey corresponds to the total amount of persons questioned or only to those who actually replied.

                           8.

                           did not consider the individual evidential value of the evidence submitted before making an overall assessment.

               In finding unfair advantage of reputation under 8(5) CTMR the Court of First Instance wrongly:

                           9.

                           based its decision of unfair advantage on reputation — not repute — which does not comply with article 8(5) CTMR

                           10.

                           found that a possibility which cannot be ruled out is sufficient to prove prima facie evidence of a future risk, which is not hypothetical, of the taking of unfair advantage by the applicant of the reputation of the earlier marks.


title: Case T-495/11: Judgment of the General Court of 30 January 2014 — Streng v OHIM — Gismondi (PARAMETRICA) (Community trade mark — Opposition proceedings — Application for Community word mark PARAMETRICA — Earlier national word mark parameta — Relative ground for refusal — Failure to produce evidence in the language of the opposition proceedings — Rule 19(2) and (3) and Rule 98(1) of Regulation (EC) No 2868/95)

text:
               8.3.2014

               EN

               Official Journal of the European Union

               C 71/17

      Judgment of the General Court of 30 January 2014 — Streng v OHIM — Gismondi (PARAMETRICA)
      (Case T-495/11) (1)

      (Community trade mark - Opposition proceedings - Application for Community word mark PARAMETRICA - Earlier national word mark parameta - Relative ground for refusal - Failure to produce evidence in the language of the opposition proceedings - Rule 19(2) and (3) and Rule 98(1) of Regulation (EC) No 2868/95)
      (2014/C 71/28)
      Language of the case: Italian

         Parties

         Applicant: Michael Streng (Erding, Germany) (represented by: A. Pappert, lawyer)

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

         Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Fulvio Gismondi (Rome, Italy) (represented by: A. Masetti Zannini de Concina, G. Petrocchi, M. Bucarelli and F. Bellan, lawyers)

         Re:

      Action brought against the decision of the Fourth Board of Appeal of OHIM of 19 July 2011 (Case R 1348/2010-4) relating to opposition proceedings between Mr Michael Streng and Mr Fulvio Gismondi.

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Mr Michael Streng to pay the costs.

         (1)  OJ C 347, 26.11.2011.


title: Case T-68/15: Action brought on 12 February 2015 — Scandlines Øresund e.a. v Commission

text:
               27.4.2015

               EN

               Official Journal of the European Union

               C 138/56

         Action brought on 12 February 2015 — Scandlines Øresund e.a. v Commission
   (Case T-68/15)
   (2015/C 138/73)
   Language of the case: English

      Parties

      Applicants: Scandlines Øresund I/S (Helsingør, Denmark), HH Ferries Helsingor ApS (Helsingør, Denmark), HH-Ferries Helsingborg AB (Helsingborg, Sweden) (represented by: M. Johansson, R. Azelius and P. Remnelid, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               annul the contested decision; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The present application is brought pursuant to Article 263 of the Treaty on the Functioning of the European Union for annulment of the decision by the European Commission of 15 October 2014 under Article 107(3)(b) Treaty on the Functioning of the European Union (in Cases SA.36558 and SA.38371 — Denmark, and SA.36662 — Sweden, Aid granted to Øresundsbro Konsortiet).
   In support of the action, the applicant relies on three pleas in law.

               1.

               First plea in law, alleging errors of law and errors of assessment.

                           —

                           By the first part of the first plea in law, the applicants submit that the Commission made a manifest error of assessment when concluding that the financing of the Hinterland Facilities did not involve State aid since the measures concerned were neither liable to distort competition nor to affect trade between Member States.

                           —

                           By the second part, the applicants submit that the Commission erred in law with regard to the unconditional character of the State guarantees and the legally enforceable right of the Consortium to obtain State guaranteed funding, as well as regarding the Commission’s assessment of the number of State guarantees.

                           —

                           By the third and fourth parts, the applicants submit that the Commission erred in law by concluding that the Swedish guarantee measures constitute an aid scheme and existing aid.

                           —

                           By the fifth part, the applicants submit that the Commission made a manifest error of assessment when concluding that the State guarantees are limited to the financing of the Fixed Link.

                           —

                           By the sixth part of the first plea in law, the applicants allege infringement of Article 107(3)(c) TFEU, in that the Commission did not have sufficient grounds to find the aid measures in question compatible with the internal market.

                           —

                           Under the sixth part, the Applicants also submit that the Commission erred in law by not assessing the cumulative effect of all the different aid measures directly and indirectly granted to the Consortium.

                           —

                           By the seventh part of the first plea in law, the applicants allege incorrect application of the principle of legitimate expectations.

               2.

               Second plea in law, alleging infringement of the obligation to initiate the formal investigation procedure.

                           —

                           The second plea in law is divided into nineteen parts, through which the applicants submit that the examination carried out by the Commission was insufficient and incomplete, and that the Commission on several points failed to follow its own guidelines and notices. These failures establish the existence of a body of consistent evidence that shows that the Commission was not able, at the date of the adoption of the contested decision, to resolve all the serious difficulties identified in the case at hand. Consequently, the Commission erroneously refused to safeguard the procedural rights that the applicants derive from Article 108(2) TFEU.

               3.

               Third plea in law, alleging infringement of the duty to state reasons.

                           —

                           By their third and final plea in law, the applicants submit that the contested decision is based on inadequate reasoning. The applicants submit that the Commission failed to ascertain that the statements and reasons in the contested decision were precise enough for the applicants to defend their rights and for the Court to exercise its power of review. The alleged flaws in reasoning concern the Commission’s assessment of the Hinterland Facilities, the State guarantees, the Danish tax advantages, the Danish State loans and, lastly, the fact that the Commission’s conclusions concerning compatibility with the internal market and legitimate expectations are based on a circular reasoning.


title: Case C-325/05: Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 17 August 2005 in Ismail Derin v Landkreis Darmstadt-Dieburg

text:
               12.11.2005

               EN

               Official Journal of the European Union

               C 281/7

         Reference for a preliminary ruling from the Verwaltungsgericht Darmstadt by order of that court of 17 August 2005 in Ismail Derin v Landkreis Darmstadt-Dieburg
   (Case C-325/05)
   (2005/C 281/13)
   Language of the case: German
   Reference has been made to the Court of Justice of the European Communities by order of the Verwaltungsgericht Darmstadt of 17 August 2005, received at the Court Registry on 26 August 2005, for a preliminary ruling in the proceedings between Ismail Derin and Landkreis Darmstadt-Dieburg on the following questions:

               1.

               Does a Turkish national who, as a child, joined his parents who were employed as workers in the Federal Republic of Germany, and lived with them as a family, lose his right of residence derived from the right under the second indent of the first paragraph of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council (‘Decision No 1/80’) to free access to any paid employment — apart from in cases under Article 14 of Decision No 1/80 or where he leaves the host Member State without legitimate reason for a significant period of time — also where he has attained the age of 21 and no longer lives with or is maintained by his parents?
               If the answer to the first question is in the affirmative:

               2

               Notwithstanding the loss of his legal status under the second indent of the first paragraph of Article 7 of Decision No 1/80, does that Turkish national enjoy special protection against expulsion under Article 14 of Decision No 1/80 where, after having ceased to live with his parents as a family, he was employed from time to time but has not acquired in his own right the legal status conferred by Article 6(1) of Decision No 1/80 by virtue of being a worker and for a number of years has worked exclusively on a self-employed basis?


title: Case T-800/14: Judgment of the General Court of 15 September 2016 — Philip Morris v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents drawn up in the context of the preparatory works leading to the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products — Refusal to grant access — Exception relating to the protection of legal advice — Exception relating to the protection of the decision-making process — Rights of the defence — Overriding public interest)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/39

         Judgment of the General Court of 15 September 2016 — Philip Morris v Commission
   (Case T-800/14) (1)

   ((Access to documents - Regulation (EC) No 1049/2001 - Documents drawn up in the context of the preparatory works leading to the adoption of the directive on the approximation of the laws, regulations and administrative provisions of the Member States concerning the manufacture, presentation and sale of tobacco and related products - Refusal to grant access - Exception relating to the protection of legal advice - Exception relating to the protection of the decision-making process - Rights of the defence - Overriding public interest))
   (2016/C 402/44)
   Language of the case: English

      Parties

      Applicant: Philip Morris Ltd (Richmond, United Kingdom) (represented by: K. Nordlander and M. Abenhaïm, lawyers)

      Defendant: European Commission (represented by: J. Baquero Cruz and F. Clotuche-Duvieusart, acting as Agents)

      Re:

   Application based on Article 263 TFEU and seeking annulment of Commission Decision Ares(2014) 3388066 of 29 September 2014, in so far as it refuses to grant the applicant full access to the requested documents, with the exception of the redacted personal data contained therein.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Philip Morris Ltd to pay the costs.

      (1)  OJ C 56, 16.2.2015.


title: Case C-94/15 P: Judgment of the Court (Fifth Chamber) of 16 February 2017 — Tudapetrol Mineralölerzeugnisse Nils Hansen KG v European Commission (Appeal — Agreements, decisions and concerted practices — European market for paraffin wax and the German market for slack wax — Price-fixing and market-sharing — Obligation to state reasons — Evidence of the infringement — Distortion of the evidence)

text:
               10.4.2017

               EN

               Official Journal of the European Union

               C 112/4

         Judgment of the Court (Fifth Chamber) of 16 February 2017 — Tudapetrol Mineralölerzeugnisse Nils Hansen KG v European Commission
   (Case C-94/15 P) (1)

   ((Appeal - Agreements, decisions and concerted practices - European market for paraffin wax and the German market for slack wax - Price-fixing and market-sharing - Obligation to state reasons - Evidence of the infringement - Distortion of the evidence))
   (2017/C 112/06)
   Language of the case: German

      Parties

      Appellant: Tudapetrol Mineralölerzeugnisse Nils Hansen KG (represented by: U. Itzen and J. Ziebarth, lawyers)

      Other party to the proceedings: European Commission (represented by: R. Sauer, C. Vollrath and L. Wildpanner, acting as Agents, and by A. Böhlke, lawyer)

      Operative part of the judgment

   The Court:

               1.

               Dimsisses the appeal;

               2.

               Orders Tudapetrol Mineralölerzeugnisse Nils Hansen KG to pay the costs.

      (1)  OJ C 127, 20.4.2015.


title: Application brought on 12 December 1996 by J. J. M. van Rossum and C. C. W. M. van Rossum v. Council and Commission of the European Communities (Case T-207/96)

text:
No C 74/22            EN                  Official Journal of the European Communities                                         8 . 3 . 97
Application brought on 12 December 1996 by J. J. M. van              The pleas in law and main arguments in support are
Rossum and C. C. W. M. van Rossum v. Council and                     analogous to those in Case T-206/96.
         Commission of the European Communities
                       ( Case T-207/96 )                             (') OJ No L 90, 1 . 4 . 1984 , p. 13 .
                                                                     ( 2 ) OJ No L 84, 23 . 9 . 1989 , p. 2 .
                          ( 97/C 74/46 )                             ( 3 ) OJ No L 131 , 26 . 5 . 1977, p. 1 .
                (Language of the case: Dutch)
An application was brought before the Court of First
Instance of the European Communities on 12 December                  Action brought on 4 January 1997 by Anna Maria
1996 against the Council and Commission of the                       Campogrande against Commission of the European
European Communities by J. J. M. van Rossum, residing                                              Communities
at Alphen (Netherlands ), and C. C. W. M. van Rossum,                                             ( Case T-3/97)
residing at Maasbommel ( Netherlands ), both represented
by A. A. M. van Beek, of the Tilburg bar.                                                           ( 97/C 74/47 )
                                                                                (Language of the case: French)
The applicants claim that the Court of First Instance
should:
                                                                     An action against the Commission of the European
                                                                     Communities was brought before the Court of First
1 . declare that the European Economic Community is                  Instance of the European Communities on 4 January 1997
    liable in damages to the applicants;                             by Anna Maria Campogrande, of Brussels, represented by
                                                                     Marc-Albert Lucas, of the Liege Bar, with an address for
                                                                     service in Luxembourg at the Chambers of Evelyne Korn,
2 . declare that the European Economic Community is                  21 rue de Nassau .
    liable to the applicants for the loss of income suffered
    by the applicants as a result of the application of
    Council Regulation ( EEC ) No 857/84 of 31 March                 The applicant claims that the Court should:
    1984 (') and the application of Council Regulation
    ( EEC ) No 764/89 of 20 March 1989 (2 ) amending                 — annul or declare illegal the Commission's decision of
    Regulation (EEC ) No 857/84, in so far as no provision
                                                                            19 July 1988 concerning the procedure for filling
    was made in those Regulations for a representative
                                                                           middle-management              posts    ( COM(88)PV      928 ,
    reference quantity to be allocated to SLOM assignees
                                                                           published in the 'Administrative Notices' No 578 of
    who had delivered no milk in the reference year
                                                                           5 December 1988 ), as amended by its decision of
    chosen by the Member State concerned pursuant to
                                                                           28 June 19 95 ( published in 'Administrative Notices'
    an undertaking under Council Regulation ( EEC)
                                                                           No 898 of 7 July 1995 ),
    No 1078/77 ( 3 ) of 17 May 1977;
                                                                     — in the alternative, variously:
3 . declare that the applicants have suffered loss of
    income in an amount constituted by the difference                      — annul or declare illegal the Commission's decision
    between the income, including turnover and herd                            to fill the post of Head of Unit of the 'Andean
    increase, which in the normal course of affairs they                       Pact' at career bracket A 4/A 5 ('Summaries of
    would have obtained from the quantities of milk                            Vacancy Notices' No 39 , of 14 December 1995 ,
    which they would have delivered if, during the period                      COM/ 141 /95 ),
    between 1 April 1984 ( the date of entry into force of
    Regulation ( EEC) No 857/84 ) and 31 March 1994
    (the date of expiry of the 1993/1994 period of levy ),                 — annul or declare illegal the vacancy notice for the
    they had had available to them the reference quantity                      post in question,
    of milk to which they were entitled and, on the other
    hand, the income which they actually received during                   — annul the decision of the appointing authority to
    the abovementioned period;                                                 appoint someone else to the post in question,
4.  declare that interest shall accrue on the amounts of             — in any event, order the appointing authority to pay the
                                                                           costs .
    income owing to the applicants with effect from the
    date of delivery of the Court's judgment, at the rate of
    8 % per annum, or at such rate as the Court may                  Pleas in law and main arguments adduced in support:
    deem fit, until the date of full and final settlement;
                                                                     The applicant, an official in grade A 4 step 5, contests the
5 . order the defendants to pay the costs .                          appointing authority's decision rejecting her candidature


title: Case C-299/09: Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 30 July 2009 — DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v Ministerstvo životního prostředí

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/32

         Reference for a preliminary ruling from the Nejvyšší správní soud (Czech Republic) lodged on 30 July 2009 — DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH v Ministerstvo životního prostředí
   (Case C-299/09)
   2009/C 267/59
   Language of the case: Czech

      Referring court

   Nejvyšší správní soud

      Parties to the main proceedings

      Applicant: DAR Duale Abfallwirtschaft und Verwertung Ruhrgebiet GmbH

      Defendant: Ministerstvo životního prostředí

      Questions referred

               1.

               Must Article 2(i) and (k) of Council Regulation (EEC) No 259/93 of 1 February 1993 on the supervision and control of shipments of waste within, into and out of the European Community, (1) in conjunction with Article 1(e) and (f) of Council Directive 75/442/EEC of 15 July 1975 on waste, (2) and with point D10 of Annex IIA and point R1 of Annex IIB to that directive, be interpreted to the effect that the first of the criteria defined by the Court of Justice in its judgment of 13 February 2003 in Case C-458/00 Commission v Luxembourg [2003] ECR I-1553 for it to be possible for the incineration of waste to be regarded as the recovery of waste to generate energy within the meaning of point R1 of Annex IIB to that directive (that is, the main purpose of the operation must be to enable waste to fulfil a useful function, namely the generation of energy) may also be satisfied in a case in which none of the circumstances is present which the Court of Justice mentioned in that judgment as factors testifying to recovery of waste, that is to say, where the operator of the installation in which waste is to be incinerated does not make a payment for the operation to the supplier of the waste and the installation is not technically adapted to be capable of operation on the basis of primary energy sources in the event of a shortage of waste?

               2.

               If the answer to that question is in the affirmative, under what conditions may the operation be regarded in such a case as the recovery of waste?

                           (a)

                           May the aspect of payment for the waste operation be disregarded altogether, or is it necessary at the very least, for it to be possible to regard the operation as the recovery of waste, that the income of the operator of the installation from the sale of the thermal or electrical energy obtained by the incineration of a certain quantity of waste exceeds the income of the operator of the installation from the payment for receiving the waste?

                           (b)

                           As regards the nature of the installation of the recipient of waste, may it be regarded as a sufficient factor testifying to a waste recovery operation that in the decision authorising the operation of the installation it is formally classified as an installation for the recovery of waste for energy purposes and that the operator of the installation has contractually bound himself to feeding a certain quantity of thermal energy into the network and would face a contractual penalty if that obligation were breached, or is it a minimum condition for assessing the operation as the recovery of waste that the operator of the installation would from the legal, technical and economic point of view actually be capable of operating the installation, at least temporarily, on the basis of fuels other than waste?

      (1)  OJ 1993 L 30, p. 1.

      (2)  OJ 1975 L 194, p. 39.