title: Case T-353/99: Action brought on 10 December 1999 by NV Calberson Belgium against the Commission of the European Communities

text:
C 79/36               EN                      Official Journal of the European Communities                                      18.3.2000
Action brought on 8 December 1999 by Bogoljub Karic,                     The applicant claims that the Court should:
Dragomir Karic, Milenka Karic, Sreten Karic and Zoran
     Karic against the Council of the European Union                     — annul the Commission’s decision of 9 February 1999
                                                                             considering the applicant’s absences from 8 to 17 Decemb-
                        (Case T-350/99)                                      er 1998 and of 25 January 1999 to have been unauthorised
                                                                             and deducting them from annual leave entitlement;
                         (2000/C 79/76)                                  — order the defendant to pay the costs.
                  (Language of the case: English)                        Pleas in law and main arguments
An action against the Council of the European Union was                  The applicant contests the legality of the decision to consider
brought before the Court of First Instance of the European               her absences because of sickness to have been unauthorised
Communities on 8 December 1999 by Bogoljub Karic and                     and to deduct them from annual leave entitlement. The
four others, represented by Nicolas Rollason and Tim Eicke,              applicant takes the view that by not enabling her to challenge
with an address for service in Luxembourg at the Chambers of             effectively the institution’s medical officer’s refusal to accept
Elvinger, Hoss & Prussen, 2 place Winston Churchill.                     the medical certificate produced to justify her absences because
                                                                         of sickness, the Commission infringed Article 59(1) and (3) of
The applicants claim that the Court should:                              the Staff Regulations, as well as her rights of defence and the
                                                                         obligation to state reasons. She maintains, furthermore, that
— declare void the Council Decision 1999/612/CFSP and/or                 the medical officer committed a manifest error of assessment
    the decision apparently adopted on 6 December 1999, not              by refusing to acknowledge the seriousness of her medical
    yet published in the Official Journal but press-released on          complaint.
    the Council’s website on 6 December 1999;
— order the Council to pay the applicants’ costs.
Pleas in law and main arguments
The pleas in law and main arguments raised by the applicants             Action brought on 10 December 1999 by NV Calberson
are similar to those put forward in Case T-349/99. Moreover,             Belgium against the Commission of the European Com-
the applicants submit that the contested decisions prevent                                            munities
them from exercising their right to family life as protected by
Article 8(1) ECHR and Article 6(2) EU.                                                            (Case T-353/99)
                                                                                (2000/C 79/78)
                                                                                (Language of the case: Dutch)
Action brought on 9 December 1999 by M against Com-                      An action against the Commission of the European Communi-
            mission of the European Communities                          ties was brought before the Court of First Instance of the
                                                                         European Communities on 10 December 1999 by NV Calber-
                                                                         son Belgium, having its registered office in Bornem (Belgium),
                        (Case T-352/99)                                  represented by L. Gheysens, of the Law Firm Gheysens &
                                                                         Partners, Wevelgem (Belgium), with an address for service in
                         (2000/C 79/77)                                  Luxembourg at the Chambers of R. Reding, 2 Rue J.-P.
                                                                         Brasseur.
                   (Language of the case: French)                        The applicant claims that the Court should:
An action against the Commission of the European Communi-                — annul Commission Decision C(1999) 2140 final of 19 July
ties was brought before the Court of First Instance of the                   1999 (file Rec 8/98 — client: Lema) and Commission
European Communities on 9 December 1999 by M, represent-                     Decision C(1999) 2143 final of 19 July 1999 (file Rec
ed by Jean-Noël Louis, Greta-Françoise Parmentier and                        9/98 — client: Consumer Electronic Service);
Véronique Peere, of the Brussels Bar, with an address for
service in Luxembourg at the offices of Société de Gestion               — declare that [the import duties in issue] should not be the
Fiduciaire, 2-4 rue Beck.                                                    subject of post-clearance recovery from the applicant;
 ---pagebreak--- 18.3.2000              EN                   Official Journal of the European Communities                                        C 79/37
— in the alternative, declare that, in both the Lema and               Action brought on 13 December 1999 by Société Vatinel
     Consumer Electronic Service cases, the applicant is entitled        NV against Commission of the European Communities
     to remission of the duties in respect of which post-
     clearance recovery is sought;
                                                                                (Case T-355/99)
— order the Commission to pay all costs.                                                        (2000/C 79/79)
Pleas in law and main arguments                                                           (Language of the case: French)
                                                                       An action against the Commission of the European Communi-
In 1993, pursuant to ATR-1 certificates issued by the Turkish          ties was brought before the Court of First Instance of the
authorities, the applicant imported a consignment of colour            European Communities on 13 December 1999 by Société
televisions from Turkey exempt from import duties. During              Vatinel NV, whose registered office is in Antwerp (Belgium),
an investigation in Turkey in 1993, the Commission’s services          represented by Mireille Famchon, of the Paris Bar, with an
established that the conditions for exemption had not been             address for service in Luxembourg at the Chambers of François
satisfied inasmuch as countervailing duties had not been levied        Prum, 13 Avenue Guillaume.
in Turkey on the components of the television sets which had
originated in third countries.
                                                                       The applicant claims that the Court should:
                                                                       — annul Decision No C(1999)2286 final of 22 July 1999.
In the contested decisions the Commission rejected the
requests by the Belgian authorities not to seek post-clearance
recovery in this case of the import duties owed, or in the
alternative to remit those duties. The Commission took the             Pleas in law and main arguments
view that a prudent importer ought to have had serious doubts
as to the validity of those ATR-1 certificates.                        The applicant company in the present case contests the
                                                                       Commission’s decision that post-clearance recovery should be
                                                                       made of import duties which the applicant was not required
According to the applicant, the Turkish authorities had in this        to pay in respect of television sets imported from Turkey and
case made an ‘active error’ which the applicant itself could not       that the remission of those duties was not justified in a specific
possibly have discovered. In its view therefore, this is an error      case.
within the meaning of Article 5(2) of Regulation No 1697/79,
in which case the duties cannot be the subject of post-clearance
recovery, or, alternatively, a special circumstance in which,          In support of its arguments, it claims that:
pursuant to the first paragraph of Article 13 of Regulation
No 1430/79, remission is granted. The fact that the Com-               — the right to a fair hearing and rights of the defence were
mission failed to detect these irregularities at an earlier stage          infringed, inasmuch as it had not received, to date, as
and failed to warn the undertakings concerned also points to               requested, the results of the investigation undertaken by
maladministration.                                                         the Commission in Turkey into the validity of the ATR1
                                                                           certificates submitted in support of the declarations in
                                                                           respect of the importation of television set from that
The applicant further argues that its rights of defence, in                country.
particular the principle of ‘equality of arms’, have not been
respected. The investigation in Turkey was conducted in a              — the disputed ATR certificates were not invalidated by the
one-sided manner, without the knowledge of the parties                     competent authorities of the issuing country, which is why
concerned and without any opportunity for them to reply.                   the Belgian customs authorities were not in a position to
                                                                           challenge the applicability of the ATR1 certificates at issue.
The applicant also submits that there is no longer any right to        — the Turkish authorities failed to bring their national
make post-clearance recovery, in accordance with Article 2 of              legislation into line with the decision of the Council of
Regulation No 1697/79.                                                     Association which required a countervailing export duty
                                                                           to be levied. Moreover, after being warned on several
                                                                           occasions by the Commission, the Turkish authorities
                                                                           cannot claim to have been unaware of the irregularity
The applicant concludes by referring to the pleas in law and
                                                                           under which it laboured.
arguments which it put forward in Case T-216/97.
                                                                       — contrary to what the Commission contends, the Turkish
                                                                           authorities were at no time taken advantage of by the
                                                                           exporters. Although third-country parts were used in
                                                                           the manufacture of television sets in Turkey, they were


title: Case F-87/07: Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission (Staff cases — Officials — Action for damages — Allegedly unlawful conduct on the part of the Commission's Medical Service — Inadmissibility — Failure to comply with a reasonable period for lodging a claim for compensation)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/45

         Order of the Civil Service Tribunal (First Chamber) of 4 November 2008 — Marcuccio v Commission
   (Case F-87/07) (1)

   (Staff cases - Officials - Action for damages - Allegedly unlawful conduct on the part of the Commission's Medical Service - Inadmissibility - Failure to comply with a reasonable period for lodging a claim for compensation)
   (2009/C 6/92)
   Language of the case: Italian
   Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Defendant: Commission of the European Communities (represented by: J. Currall and C. Berardis-Kayser, acting as Agents, assisted by A. Dal Ferro, lawyer)
   Re:
   Action for annulment of the Commission's decision not to grant the applicant's claim for compensation in respect of damage allegedly suffered by reason of the unlawful conduct of the Commission's Medical Service in dealing with three medical certificates produced by the applicant in the summer of 2001
   Operative part of the order

               1.

               The action is dismissed as manifestly inadmissible.

               2.

               Mr Marcuccio is ordered to pay the costs.

      (1)  OJ C 247, 20.10.2007, p. 45.


title: Case C-81/13: Action brought on 15 February 2013 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union

text:
               20.4.2013

               EN

               Official Journal of the European Union

               C 114/26

         Action brought on 15 February 2013 — United Kingdom of Great Britain and Northern Ireland v Council of the European Union
   (Case C-81/13)
   2013/C 114/41
   Language of the case: English

      Parties

      Applicant: United Kingdom of Great Britain and Northern Ireland (represented by: C. Murrell, Agent, A. Dashwood QC)

      Defendant: Council of the European Union

      The applicant claims that the Court should:

               —

               annul Council Decision 2012/776/EU on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey with regard to the adoption of provisions on the coordination of social security schemes (1);

               —

               order the Council to pay the costs of the proceedings.

      Pleas in law and main arguments

               1.

               By an action brought under Article 263 TFEU, the United Kingdom of Great Britain and Northern Ireland is seeking the annulment, pursuant to Article 264 TFEU, of Council Decision 2012/776/EU of 6 December 2012 on the position to be taken on behalf of the Union within the Association Council set up by the Agreement establishing an Association between the European Economic Community and Turkey with regard to the adoption of provisions on the coordination of social security schemes.

               2.

               The United Kingdom respectfully requests the Court:

                           (i)

                           to annul the Decision;

                           (ii)

                           to order the Council to pay the costs of the proceedings.

               3.

               Article 48 TFEU is the substantive legal basis specified in the Decision.

               4.

               The proposed Association Council Decision annexed to the Council Decision would repeal and replace Decision No. 3/80 of the Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families.

               5.

               The United Kingdom contends that Article 48 TFEU cannot serve as the substantive legal basis of a measure intended to have such consequences. It is a provision designed to facilitate freedom of movement for nationals of Member States within the internal market. The correct legal basis is Article 79 (2) (b) TFEU. This confers competence for the adoption of measures concerning ‘the definition of the rights of third country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’. The Council Decision is precisely such a measure.

               6.

               Article 79 (2) (b) TFEU is found in Title V of Part Three of the TFEU. Pursuant to Protocol 21 to the Treaties, measures adopted under Title V do not apply to the United Kingdom (or Ireland) unless it signals its willingness to ‘opt into’ them. By its erroneous choice of Article 48 TFEU, instead of Article 79 (2) (b) TFEU, as the substantive legal basis of the Decision, the Council refused to recognise the right of the United Kingdom not to take part in the adoption of the Decision and not to be bound by it.

               7.

               The annulment of Council Decision 2012/776/EU is, therefore, sought on the ground that it was adopted on the wrong legal basis, with the consequence that the rights of the United Kingdom under Protocol 21 were not recognised.

               8.

               In support of its contention the United Kingdom relies upon the express provisions of Article 48 and Article 79 (2) (b) TFEU, interpreted in their Treaty context and in the light of case law. It further relies upon the fact that Council Decision 2012/776/EU is almost identical to nine Council Decisions which have been adopted under other Association Agreements on the basis of Article 79 (2) (b).

      (1)  OJ L 340, p. 19


title: Case C-232/14: Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 12 May 2014 — Portmeirion Group UK Ltd v The Commissioners for Her Majesty's Revenue & Customs

text:
               21.7.2014

               EN

               Official Journal of the European Union

               C 235/9

         Reference for a preliminary ruling from First-tier Tribunal (Tax Chamber) (United Kingdom) made on 12 May 2014 — Portmeirion Group UK Ltd v The Commissioners for Her Majesty's Revenue & Customs
   (Case C-232/14)
   2014/C 235/12
   Language of the case: English

      Referring court

   First-tier Tribunal (Tax Chamber)

      Parties to the main proceedings

      Applicant: Portmeirion Group UK Ltd

      Defendant: The Commissioners for Her Majesty's Revenue & Customs

      Questions referred

   Is the contested Regulation (Council Regulation No 412/2013 (1)) incompatible with EU law in so far as it

               i.

               is based on manifest errors of assessment with respect to the definition of the product concerned, thereby invalidating the conclusions of the anti-dumping investigation; and

               ii.

               lacks adequate reasons as required under Article 296 TFEU?

      (1)  Council Implementing Regulation (EU) No 412/2013 of 13 May 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tableware and kitchenware originating in the People's Republic of China

      OJ L 131, p. 1


title: Case C-276/15: Judgment of the Court (First Chamber) of 26 October 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hecht-Pharma GmbH v Hohenzollern Apotheke, owned by Winfried Ertelt (Reference for a preliminary ruling — Medicinal products for human use — Directive 2001/83/EC — Scope — Article 2(1) — Medicinal products prepared industrially or manufactured by a method involving an industrial process — Point 2 of Article 3 — Officinal formula)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/18

         Judgment of the Court (First Chamber) of 26 October 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Hecht-Pharma GmbH v Hohenzollern Apotheke, owned by Winfried Ertelt
   (Case C-276/15) (1)

   ((Reference for a preliminary ruling - Medicinal products for human use - Directive 2001/83/EC - Scope - Article 2(1) - Medicinal products prepared industrially or manufactured by a method involving an industrial process - Point 2 of Article 3 - Officinal formula))
   (2017/C 006/22)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Hecht-Pharma GmbH

      Defendant: Hohenzollern Apotheke, owned by Winfried Ertelt

      Operative part of the judgment

   Article 2(1) of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, as amended by Directive 2011/62/EU of the European Parliament and of the Council of 8 June 2011, must be interpreted as meaning that a medicinal product for human use, such as that at issue in the main proceedings, which, under national legislation, does not require a marketing authorisation by reason of the proven frequency with which it is the subject of medical and dental prescriptions, the essential manufacturing steps for such products are carried out in a pharmacy as part of the normal pharmacy business producing in the course of one day up to 100 packages ready for dispensation and intended for supply under the existing pharmacy operating licence, cannot be regarded as having been prepared industrially or manufactured by a method involving an industrial process, within the meaning of that provision, and consequently does not come within the scope of that directive, subject to the findings of fact which it is for the referring court to make.
   However, should those findings lead the referring court to take the view that the medicinal product at issue in the main proceedings has been prepared industrially or manufactured by a method involving an industrial process, the answer must also be that point 2 of Article 3 of Directive 2001/83, as amended by Directive 2011/62, must be interpreted as meaning that it does not preclude provisions such as those laid down in Paragraph 21(2), point 1, of the Law on the marketing of medicinal products, read in conjunction with Paragraph 6(1) of the Regulation on the operation of pharmacies, in so far as those provisions, in essence, require pharmacists to comply with the pharmacopoeia when manufacturing officinal formulae. It is, however, for the referring court to determine whether, on the facts of the case before it, the medicinal product at issue in the main proceedings has been prepared in accordance with the prescriptions of a pharmacopoeia.

      (1)  OJ C 294, 7.9.2015.


title: Case T-225/08: Judgment of the Court of First Instance of 8 July 2009 — Mineralbrunnen Rhön-Sprudel Egon Schindel v OHIM — Schwarzbräu (ALASKA) (Community trade mark — Invalidity proceedings — Community figurative mark ALASKA — Absolute ground for refusal — Lack of descriptive character — Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/35

         Judgment of the Court of First Instance of 8 July 2009 — Mineralbrunnen Rhön-Sprudel Egon Schindel v OHIM — Schwarzbräu (ALASKA)
   (Case T-225/08) (1)

   (Community trade mark - Invalidity proceedings - Community figurative mark ALASKA - Absolute ground for refusal - Lack of descriptive character - Article 7(1)(c) of Regulation (EC) No 40/94 (now Article 7(1)(c) of Regulation (EC) No 207/2009))
   2009/C 205/64
   Language of the case: German

      Parties

      Applicant: Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH (Ebersburg, Germany) (represented by: P. Wadenbach, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: Schwarzbräu GmbH (Zusmarshausen, Germany) (represented by: L. Schlarmann, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 April 2008 (Case R 877/2004-4) concerning invalidity proceedings between Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH and Schwarzbräu GmbH.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Mineralbrunnen Rhön-Sprudel Egon Schindel GmbH to bear its own costs and those incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM);

               3.

               Orders Schwarzbräu GmbH to bear its own costs.

      (1)  OJ C 223, 30.8.2008.


title: Case C-126/08: Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 25 March 2008 — I. Distillerie Smeets Hasselt NV v 1. Belgische Staat, 2. L.S.C. De Vos, 3. Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV, 4. D. Van den Langenbergh and 5. Firma De Vos NV; II. Belgische Staat v Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV; and III. L.S.C. De Vos v Belgische Staat

text:
               7.6.2008

               EN

               Official Journal of the European Union

               C 142/17

         Reference for a preliminary ruling from the Hof van Cassatie van België, lodged on 25 March 2008 — I. Distillerie Smeets Hasselt NV v 1. Belgische Staat, 2. L.S.C. De Vos, 3. Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV, 4. D. Van den Langenbergh and 5. Firma De Vos NV; II. Belgische Staat v Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV; and III. L.S.C. De Vos v Belgische Staat
   (Case C-126/08)
   (2008/C 142/25)
   Language of the case: Dutch
   Referring court
   Hof van Cassatie van België
   Parties to the main proceedings
   Appellants:

               I.

               Distillerie Smeets Hasselt NV

               II.

               Belgische Staat

               III.

               L.S.C. De Vos

         Respondents:

               I.

                           1.

                           Belgische Staat

                           2.

                           L.S.C. De Vos

                           3.

                           Bollen, Mathay & Co. BVBA, liquidator of Transterminal Logistics NV

                           4.

                           D. Van den Langenbergh

                           5.

                           Firma De Vos NV

               II

               Bollen, Mathay, & Co. BVBA, liquidator of Transterminal Logistics NV

               III.

               Belgische Staat

         Question referred
   Should Articles 217(1) and 221(1) of the Community Customs Code (CCC) (1) be construed as meaning that the prescribed entry of a customs debt in the accounts may also be lawfully effected through the entry of the amount in a record in accordance with the AWDA (2), drawn up by investigating officials and not by persons authorised to enter such amounts in the accounts, and that such records may be treated as accounting records or any other equivalent medium within the terms of Article 217(1) of the CCC?

      (1)  Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).

      (2)  Royal Decree of 18 July 1997 coordinating the general provisions on customs and excise duties.


title: Case C-608/12 P: Appeal brought on 27 December 2012 by Greinwald GmbH against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-333/11 Nicolas Wessang v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               2.3.2013

               EN

               Official Journal of the European Union

               C 63/12

         Appeal brought on 27 December 2012 by Greinwald GmbH against the judgment of the General Court (Seventh Chamber) delivered on 10 October 2012 in Case T-333/11 Nicolas Wessang v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

   (Case C-608/12 P)
   2013/C 63/20
   Language of the case: German

      Parties

      Appellant: Greinwald GmbH (represented by: C. Onken, Rechtsanwältin)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Nicolas Wessang

      Form of order sought

               —

               Set aside the judgment of the General Court of 10 October 2012 in Case T-333/11 in so far as the application was granted;

               —

               amend the judgment of the General Court of 10 October 2012 in Case T-333/11 so as to dismiss the application in its entirety;

               —

               order the applicant at first instance to pay the costs.

      Pleas in law and main arguments

   The appellant submits that the judgment under appeal is incompatible with the legal rationale underlying Article 7(1)(b) and (c) of the Community trade mark regulation (CTMR), (1) in that it is based on the assumption of an increase in the likelihood of confusion owing to the conceptual similarity of the words ‘foods’ and ‘snacks’. According to Article 7(1)(b) and (c) CTMR, signs that are devoid of any distinctive character and descriptive signs are excluded from trade mark protection. Similarities between components of signs that are devoid of any distinctive character or are descriptive cannot therefore be responsible for, or increase, any likelihood of confusion.
   It follows from this that a likelihood of confusion presupposes the possible impairment of a trade mark’s function as an indication of origin. However, such a function can be ascribed only to signs and components of signs that have distinctive character. If a component of a sign does not have the function of indicating origin, that function cannot be impaired as a result of the use of a similar component of a sign in a subsequent trade mark.
   The principle that components of signs that are devoid of distinctive character cannot give rise to any likelihood of confusion is, after all, reflected in the case-law of the Court, according to which the public will not generally consider a descriptive element forming part of a complex mark to be the distinctive or dominant element of the overall impression of a composite mark.

      (1)  OJ 2009 L 78, p.1.


title: Case T-207/15: Judgment of the General Court of 14 September 2016 — National Iranian Tanker Company v Council (Common foreign and security policy — Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation — Freezing of funds — Res judicata — Right to an effective remedy — Error of assessment — Rights of the defence — Right to property — Proportionality)

text:
               24.10.2016

               EN

               Official Journal of the European Union

               C 392/35

         Judgment of the General Court of 14 September 2016 — National Iranian Tanker Company v Council
   (Case T-207/15) (1)

   ((Common foreign and security policy - Restrictive measures adopted against Iran with the aim of preventing nuclear proliferation - Freezing of funds - Res judicata - Right to an effective remedy - Error of assessment - Rights of the defence - Right to property - Proportionality))
   (2016/C 392/44)
   Language of the case: English

      Parties

      Applicant: National Iranian Tanker Company (Tehran, Iran) (represented by: T. de la Mare QC, M. Lester, J. Pobjoy, Barristers, R. Chandrasekera, S. Ashley and C. Murphy, Solicitors)

      Defendant: Council of the European Union (represented initially by N. Rouam and M. Bishop, and subsequently by M. Bishop and A. Vitro, acting as Agents)

      Re:

   Application under Article 263 TFEU for annulment of Council Decision (CFSP) 2015/236 of 12 February 2015 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2015 L 39, p. 18) and Council Implementing Regulation (EU) No 2015/230 of 12 February 2015 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2015 L 39, p. 3), in so far as those measures concern the applicant, or, in the alternative, application under Article 277 TFEU for a declaration of inapplicability of Article 20(1)(c) of Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) and of Article 23(2)(d) of Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1), in so far as those provisions apply to the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders National Iranian Tanker Company and the Council of the European Union to bear their own costs.

      (1)  OJ C 245, 27.7.2015.


title: Case C-449/08: Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/12

         Reference for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands), lodged on 13 October 2008 — G. Elbertsen v Minister van Landbouw, Natuur en Voedselkwaliteit
   (Case C-449/08)
   (2009/C 6/19)
   Language of the case: Dutch
   Referring court
   College van Beroep voor het bedrijfsleven
   Parties to the main proceedings

      Claimant: G. Elbertsen

      Defendant: Minister van Landbouw, Natuur en Voedselkwaliteit
   Questions referred

               1.

               Should Article 42(4) of Council Regulation (EC) No 1782/2003 of 29 September 2003 (1) be interpreted as permitting a Member State to establish a reference amount of EUR 0 and not to allocate entitlements to payments from the national reserve to a farmer who finds himself in a special situation as described in Article 21 of Commission Regulation (EC) No 795/2004 of 21 April 2004 (2)?

               2.

               If the answer to that question is in the affirmative, does Community law preclude the application of a provision such as Article 17(1)(b) of the Regeling GLB-inkomenssteun 2006 (2006 Netherlands Regulations on CAP income support), under which any increase in the amount of additional payments arising as a result of an investment in production capacity or a purchase of land is subject to a deduction of EUR 500 before a reference amount is established as the basis for the allocation of entitlements to payments from the national reserve?

      (1)  Regulation establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers and amending Regulations (EEC) No 2019/93, (EC) No 1452/2001, (EC) No 1453/2001, (EC) No 1454/2001, (EC) 1868/94, (EC) No 1251/1999, (EC) No 1254/1999, (EC) No 1673/2000, (EEC) No 2358/71 and (EC) No 2529/2001 (OJ 2003 L 270, p. 1).

      (2)  Regulation laying down detailed rules for the implementation of the single payment scheme provided for in Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers (OJ 2004 L 141, p. 1).


title: Case T-48/07: Judgment of the Court of First Instance of 16 September 2008 — ratiopharm v OHIM (BioGeneriX) (Community trade mark — Application for Community word mark BioGeneriX — Absolute ground for refusal — Partially descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 40/94)

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/38

         Judgment of the Court of First Instance of 16 September 2008 — ratiopharm v OHIM (BioGeneriX)
   (Case T-48/07) (1)

   (Community trade mark - Application for Community word mark BioGeneriX - Absolute ground for refusal - Partially descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 40/94)
   (2008/C 285/70)
   Language of the case: German
   Parties

      Applicant: ratiopharm GmbH (Ulm, Germany) (represented initially by S. Völker, then by S. Völker and A. Schabenberger, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, Agent)
   Re:
   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 December 2006 (Case R 1048/2004-4) concerning an application for registration of the word mark BioGeneriX as a Community trade mark.
   Operative part of the judgment
   The Court hereby:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 20 December 2006 (Case R 1048/2004-4), in so far as chemical substances for preserving foodstuffs, falling within Class 1, are concerned;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders ratiopharm GmbH to bear its own costs and to pay half of OHIM's costs. OHIM will bear the other half of its costs.

      (1)  OJ C 82, 14.4.2007.


title: Case T-468/08: Action brought on 21 October 2008 — AES-Tisza v Commission

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/37

         Action brought on 21 October 2008 — AES-Tisza v Commission
   (Case T-468/08)
   (2009/C 6/74)
   Language of the case: English
   Parties

      Applicant: AES-Tisza Erőmű kft (AES-Tisza kft) (Tiszaújváros, Hungary) (represented by: T. Ottervanger and E. Henny, lawyers)

      Defendant: Commission of the European communities
   Form of order sought

               —

               Annul the decision of the Commission of 4 June 2008, C 41/2005;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant seeks the annulment of Commission Decision C(2008) 2223 final, of 4 June 2008, declaring incompatible with the common market the aid granted by the Hungarian authorities to certain electricity generating producers in the form of long-term power purchase agreements (‘PPA’) of electricity concluded between the transmission operator Magyar Villamos Müvek Rt. (‘MVM’), owned by the Hungarian State, and these producers at a date prior to the accession of the Republic of Hungary to the European Union [State aid C 41/05 (ex NN 49/05) — Hungarian ‘Stranded Costs’]. The applicant is identified in the contested decision as a beneficiary of the alleged State aid and the decision orders Hungary to recover the aid, including interest, from the applicant.
   The applicant claims that the Commission erred in law and committed manifest errors of assessment, and has further infringed fundamental principles of European law, by finding that the purchase obligations contained in the PPA between MVM and the applicant constitute illegal State aid. In support of its claims, the applicant raises seven pleas in law.
   In its first plea, the applicant submits that the Commission infringed Article 87(1) EC in as much as it committed errors of law and manifest errors of assessment by failing to establish to the requisite standard that the alleged aid measure conferred a selective advantage to the applicant through State resources.
   Second, the applicant claims that, by qualifying the applicant's PPA as aid and requiring its recovery, the decision violates the fundamental principles of Community law. The applicant argues that the Commission infringed its procedural rights by failing to respect the right to a fair hearing. In the applicant's view, the Commission infringed as well the fundamental principles of legal certainty and of legitimate expectations in as much as it applied an ex post assessment to the alleged aid measures, departing from the established rule of ex ante assessment, without any valid justification. The applicant further submits that the Commission infringed the principles of neutrality and equal treatment.
   Third, the applicant contends that the Commission committed manifest errors of assessment in relation to the application of the cumulative criteria of Article 87(1) EC to the applicant's PPA in the period after the accession.
   Fourth, the applicant states that the Commission infringed its obligation to state reasons, as required by Article 253 EC, in particular in relation to the conclusions regarding the classification of the PPAs as aid as of 1 May 2004 and in the application of the ‘counterfactual’ market.
   Fifth, the applicant submits that the Commission infringed Article 87(3)(a) and (c) EC by failing to recognize any role for the applicant's PPA in securing the necessary investment in a modern, upgraded plant.
   Sixth, in the applicant's opinion, the Commission infringed its duty to ensure legal specificity in respect of recovery, failed to qualify the scope and value of the ‘purchase obligations’ and based its recovery order on hypothetical elements.
   Finally, the applicant claims that the Commission infringed the fundamental principles of Community law in ordering recovery of the alleged aid.


title: Action brought on 15 December 1997 by David Manuel de Abreu and Others against Council of the European Union and Commission of the European Communities (Cases T-317/97 to T-508/97)

text:
30.5.98               EN                Official Journal of the European Communities                                 C 166/15
The total amount of the costs to be reimbursed by                  According to the applicant, by the clearly indadequate and
International Procurement Services SA to the Commission            insufficient measures adopted, the Community breached
shall be FF 50 000.                                                the general principles of equal treatment, protection of
                                                                   legitimate expectations, legal certainty, proportionality
(1) OJ C 174 of 25.6.1994.                                         and non-discrimination.
                                                                   In the applicant's view, the adoption of such measures so
                                                                   completely unrelated to circumstances in Portugal is
                                                                   tantamount to a total failure to take account of the
                                                                   situation there. By not taking account of the specific
Action brought on 15 December 1997 by Hermínia
                                                                   conditions affecting Portuguese customs officials, the
Fernanda dos Santos Morais Antas against Council of the
                                                                   Community did not act in such a way as to ensure that
     European Union and Commission of the European
                                                                   the damage caused to them was compensated, by way of
                         Communities
                                                                   more flexible rules, in the same way as that suffered by
                       (Case T-316/97)                             officials in northern European countries. In view of the
                        (98/C 166/39)                              conditions affecting their work as customs officials, which
                                                                   differ greatly from those affecting Portuguese conditions,
                                                                   the latter were able to take full advantage of some of the
             (Language of the case: Portuguese)                    measures put in place and thus gained a competitive
                                                                   advantage in the market by means of the Community
An action against the Council of the European Union and            funds from which they were able to benefit.
the Commission of the European Communities was
brought before the Court of First Instance of the European
Communities on 15 December 1997 by Hermínia                        Furthermore, by requiring the applicant to maintain its
Fernanda dos Santos Morais Antas, residing at Vila Nova            professional organization fully in force in order to carry
de Gaia, represented by Cristina Ferreira, Francisco               out its duties until 31 December 1992, the Community did
Espregueira Mendes, Teresa Fonseca and Rui GuimaraÄes              not enable the organization to be dismantled or retrained
Lopes, of the Oporto Bar.                                          timeously in view of the circumstances of the single
                                                                   market and, secondly, fed' its hopes that its inglorious
The applicant claims that the Court should:                        efforts would be rewarded'.
Ð declare the Council and the Commission jointly and
    severally liable, pursuant to Articles 215 and 178 of          Finally, the applicant states that, although the Single Act
    the EC Treaty, for the damage caused by virtue of the          constitutes an overriding Community interest, that does
    transitional and training measures necessary in the            not justify customs officials, including the applicant,
    sector to which the applicant belongs;                         having inflicted upon them damage which is undeniably
                                                                   abnormal and specific without providing for them
                                                                   transitional and training measures which might be
Ð order the Council and the Commission jointly and                 considered adequate.
    severally to pay ESC 3 126 768 by way of
    compensation for the abovementioned damage,
    together with the interest accrued, at the rate of 10 %,
    as prescribed by law, from the date of the summons to
    the date on which payment is actually made;
Ð order the Council and the Commission to pay the                  Action brought on 15 December 1997 by David Manuel
    costs.                                                         de Abreu and Others against Council of the European
                                                                      Union and Commission of the European Communities
Pleas in law and main arguments:                                                   (Cases T-317/97 to T-508/97)
From 31 December 1992, the applicant was employed as                                       (98/C 166/40)
a customs agent in the Oporto Customs Authority area.
She claims to have suffered abnormal, particular and
direct damage as a result of the progressive realization of                     (Language of the case: Portuguese)
the internal market, established by the Single European
Act. The applicant points out that the causal factor of the
damage is not held to be, in the present action, the Single        An action against the Council of the European Union and
Act itself but the fact that the Community institutions did        the Commission of the European Communities was
not fulfil their obligation under the Single European Act,         brought before the Court of First Instance of the European
namely the obligation to introduce the appropriate                 Communities on 15 December 1997 by David Manuel de
compensatory and transitional measures for the retraining          Abreu and Others, residing in Portugal, represented by
of customs agent in view of the new Community                      Cristina Ferreira, Francisco Espregueira Mendes, Teresa
circumstances.                                                     Fonseca and Rui GuimaraÄes Lopes, of the Oporto Bar.
 ---pagebreak--- C 166/16             EN                 Official Journal of the European Communities                                    30.5.98
The applicants claim that the Court should:                        Pleas in law and main arguments:
Ð declare the Council and the Commission jointly and               The pleas in law and main arguments are identical with
    severally liable, pursuant to Articles 215 and 178 of          those relied upon in Case T-316/97 Hermínia Fernanda
    the EC Treaty, for the damage caused by virtue of the          dos Santos Morais Antas v Council and Commission.
    transitional and training measures necessary in the
    sector to which the applicant belongs;
Ð order the Council and the Commission jointly and
    severally to pay ESC 3 126 768 by way of
    compensation for the abovementioned damage,                    Action brought on 15 December 1997 by Fernando
    together with the interest accrued, at the rate of 10 %,       EugeÂnio de Abreu and Others against Council of the
    as prescribed by law, from the date of the summons to              European Union and Commission of the European
    the date on which payment is actually made;                                            Communities
                                                                                (Cases T-518/97 to T-564/97)
Ð order the Council and the Commission to pay the                                         (98/C 166/42)
    costs.
                                                                                (Language of the case: Portuguese)
Pleas in law and main arguments:
                                                                   An action against the Council of the European Union and
The pleas in law and main arguments are identical with             the Commission of the European Communities was
those relied upon in Case T-316/97 Hermínia Fernanda               brought before the Court of First Instance of the European
dos Santos Morais Antas v Council and Commission.                  Communities on 15 December 1997 by Fernando EugeÂnio
                                                                   de Abreu and Others, residing in Portugal, represented by
                                                                   Cristina Ferreira, Francisco Espregueira Mendes, Teresa
                                                                   Fonseca and Rui GuimaraÄes Lopes, of the Oporto Bar.
                                                                   The applicants claim that the Court should:
Action brought on 15 December 1997 by Maria de Lurdes              Ð declare the Council and the Commission jointly and
Esteves Afonso and Ana Paula Afonso LourencËo de                       severally liable, pursuant to Articles 215 and 178 of
Oliveira and Others against Council of the European                    the EC Treaty, for the damage caused by virtue of the
  Union and Commission of the European Communities                     transitional and training measures necessary in the
               (Cases T-509/97 to T-517/97)                            sector to which the applicant belongs;
                       (98/C 166/41)
                                                                   Ð order the Council and the Commission jointly and
                                                                       severally to pay ESC 3 126 768 by way of
             (Language of the case: Portuguese)
                                                                       compensation for the abovementioned damage,
                                                                       together with the interest accrued, at the rate of 10 %,
An action against the Council of the European Union and                as prescribed by law, from the date of the summons to
the Commission of the European Communities was                         the date on which payment is actually made;
brought before the Court of First Instance of the European
Communities on 15 December 1997 by Maria de Lurdes                 Ð order the Council and the Commission to pay the
Esteves Afonso and Ana Paula Afonso LourencËo de                       costs.
Oliveira and Others, residing in Portugal, represented by
Cristina Ferreira, Francisco Espregueira Mendes, Teresa            Pleas in law and main arguments:
Fonseca and Rui GuimaraÄes Lopes, of the Oporto Bar.
                                                                   The pleas in law and main arguments are identical with
The applicants claim that the Court should:                        those relied upon in Case T-316/97 Hermínia Fernanda
                                                                   dos Santos Morais Antas v Council and Commission.
Ð declare the Council and the Commission jointly and
    severally liable, pursuant to Articles 215 and 178 of
    the EC Treaty, for the damage caused by virtue of the
    transitional and training measures necessary in the
    sector to which the applicant belongs;
                                                                   Action brought on 15 December 1997 by JoaÄo Luís de
Ð order the Council and the Commission jointly and                 Sousa Abreu and Others against Council of the European
    severally to pay ESC 3 126 768 by way of                         Union and Commission of the European Communities
    compensation for the abovementioned damage,                                   (Cases T-565/97 to T-595/97)
    together with the interest accrued, at the rate of 10 %,                              (98/C 166/43)
    as prescribed by law, from the date of the summons to
    the date on which payment is actually made;                                 (Language of the case: Portuguese)
Ð order the Council and the Commission to pay the                  An action against the Council of the European Union and
    costs.                                                         the Commission of the European Communities was


title: Case T-94/05: Order of the Court of First Instance of 26 September 2006 — Athinaïki Techniki v Commission (Action for annulment — State aid — Complaint — Decision to take no further action on the complaint — Inadmissible)

text:
               30.12.2006

               EN

               Official Journal of the European Union

               C 326/57

         Order of the Court of First Instance of 26 September 2006 — Athinaïki Techniki v Commission
   (Case T-94/05) (1)

   (Action for annulment - State aid - Complaint - Decision to take no further action on the complaint - Inadmissible)
   (2006/C 326/123)
   Language of the case: French
   Parties

      Applicant: Athinaïki Techniki (Athens, Greece) (represented by: S. Pappas, lawyer)

      Defendant: Commission of the European Communities (represented by: D. Triantafyllou, Agent)

      Intervener in support of the defendant: Athens Resort Casino AE Symmetochon (Marrousi, Greece) (represented by: F. Carlin, Barrister, N. Niejahr, J. Dryllerakis, F. Spyropoulos and N. Korogiannakis, lawyers)
   Re:
   Application for annulment of the Commission's letter of 2 December 2004, informing the applicant of the decision to take no further action on its complaint concerning State aid allegedly granted by the Hellenic Republic to the Hyatt Regency consortium in connection with the Casino Mont Parnès public contract.
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               Athinaïki Techniki AE is ordered to pay all the costs.

      (1)  OJ C 106, 30.4.2005.


title: Case F-89/06: Action brought on 11 August 2006 — Michel Nolin v Commission of the European Communities

text:
               30.9.2006

               EN

               Official Journal of the European Union

               C 237/20

         Action brought on 11 August 2006 — Michel Nolin v Commission of the European Communities
   (Case F-89/06)
   (2006/C 237/35)
   Language of the case: French
   Parties

      Applicant: Michel Nolin (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and E. Marchal, lawyers)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               annul the decision and the formal intention of the Director-General of the Legal Service, based respectively on Article 13(3) and Article 5(7) of the General Provisions for Implementing Article 45 of the Staff Regulations, adopted by Commission Decision of 23 December 2004 not to allocate any Directorate-General priority points to the applicant for the ‘promotion exercise’ (hereinafter ‘promotion year’) 2005, as confirmed and made final by the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations, and rejecting the internal appeal filed on 26 September 2005;

               —

               annul the decision of the Director-General of Personnel and Administration, taken pursuant to Article 10(2) of the General Provisions for Implementing Article 45 of the Staff Regulations not to allocate to the applicant any special priority points in recognition of work undertaken in the interest of the institution, for the promotion year 2005;

               —

               annul the list of officials to whom priority points in recognition of work undertaken in the interest of the institution were awarded, the merit list of officials of grade A*12 in the 2005 promotion year, and the list of officials promoted to grade A*13 in that year;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of his application, the applicant first points out that in applying the General Provisions for Implementing Article 45 of the Staff Regulations in the 2005 promotion exercise the Commission infringed the principles of legal certainty and protection of legitimate expectations, to the extent that those provisions were adopted at the end of December 2004.
   Furthermore, the applicant submits that the decision not to allocate to him any Directorate-General priority points, when he had obtained the highest mark of any official in his grade and in his department for the period from July 2001 to December 2003, infringes Article 45 of the Staff Regulations, and the General Provisions for Implementing that Article, which require merit to be the determining factor for the awarding of such points, and constitutes a manifest error of assessment. Moreover, the applicant states that, to the extent that the Directorate-General priority points were not allocated on the basis of merit, the Commission has misused its powers.
   Next, the applicant claims that the decision not to allocate to him any priority points in recognition of work undertaken in the interest of the institution is illegal, in light of the fact that his application for membership of the selection board was successful. There was therefore an infringement of Article 5 of the Staff Regulations and of the principle of equal treatment.
   Finally, according to the applicant, the lists cited in the third indent (above) must also be annulled, first, because of the defects of the contested decisions, and, second, because of the illegality of certain articles of the General Provisions for Implementing Article 45 of the Staff Regulations. The applicant states that:

               —

               by providing for the awarding of priority points in recognition of work undertaken in the interest of the institution for certain supplementary tasks which are already taken into account during the marking and awarding of Directorate-General priority points, Article 9 of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment;

               —

               in providing for the award of transitional priority points based only on seniority within a grade during the 2005 promotion year, Article 13(3) of the Rules for Implementing Article 45 infringes Article 9 of the Staff Regulations;

               —

               in providing for more favourable treatment for officials of Directorates-General or services that have fewer staff, including the staff of the Private Offices of Members of the Commission, Article 6(2) of the General Provisions for Implementing Article 45 of the Staff Regulations infringes Article 45 of those Regulations as well as the principle that officials should have reasonable career prospects, and the principle of equal treatment.


title: Judgment of the Court (Third Chamber) of 1 July 2004 in Case C-311/03: Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Directive 1999/44/EC — Failure to transpose within the prescribed period)

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/8

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 1 July 2004
   in Case C-311/03: Commission of the European Communities v French Republic (1)

   (Failure of a Member State to fulfil obligations - Directive 1999/44/EC - Failure to transpose within the prescribed period)
   (2004/C 217/15)
   Language of the case: French
   In Case C-311/03: Commission of the European Communities (Agent: D. Martin) v French Republic (Agents: G. de Bergues and R. Loosli-Surrans) — application for a declaration that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees (OJ 1999 L 171, p. 12), the French Republic has failed to fulfil its obligations under that directive — the Court (Third Chamber), composed of: A. Rosas (Rapporteur), President of the Chamber, R. Schintgen and K. Schiemann, Judges; F. G. Jacobs, Advocate General; R. Grass, Registrar, has given a judgment on 1 July 2004, in which it:

               1.

               Declares that by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 1999/44/EC of the European Parliament and of the Council of 25 May 1999 on certain aspects of the sale of consumer goods and associated guarantees within the prescribed period, the French Republic has failed to fulfil its obligations under that directive.

               2.

               Orders the French Republic to pay the costs.

      (1)  OJ C 213 of 6.9.2003.


title: Case T-140/02: Action brought on 2 May 2002 by Sportwetten GmbH Gera against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
13.7.2002              EN                    Official Journal of the European Communities                                       C 169/41
Action brought on 2 May 2002 by Sportwetten GmbH                        Decision of Board of          Dismissal of applicant’s appeal
Gera against the Office for Harmonisation in the Internal               Appeal:
              Market (Trade Marks and Designs)
                                                                        Pleas in law:                 —     The registered trade mark
                                                                                designates services prohibit-
                         (Case T-140/02)
                                                                                ed in Germany
                                                                                —     The use of the trade mark
                         (2002/C 169/72)                                                                    for the services in respect
                                                                                of which it is registered is
                                                                                contrary to public policy and
(Language of the case to be determined pursuant to Article 131(2)                                           accepted      principles    of
of the Rules of Procedure — language in which the application was                                           morality      pursuant      to
                        submitted: German)                                                                  Article 7(1)(f) of Regulation
                                                                                (EC) No 40/94 (1).
                                                                                —     The Office failed to take
An action against the Office for Harmonisation in the Internal                                              account of the requirement
Market (Trade Marks and Designs) was brought before the                                                     as to use and the significance
Court of First Instance of the European Communities on 2 May                                                of Article 106(2) of the
2002 by Sportwetten GmbH Gera, residing in Gera (Germany),                                                  Regulation.
represented by A. Zumschlinge, lawyer.
                                                                        (1) Council Regulation (EC) No 40/94 of 20 December 1993 on the
Intertops Sportwetten GmbH, Salzburg (Austria), was an                      Community trade mark (OJ 1994 L 11, p. 1).
additional party to the proceedings before the Board of Appeal.
The applicant claims that the Court should:
—     annul the decision of the Fourth Board of Appeal of the
      Office for Harmonisation in the Internal Market (Trade
      Marks and Designs) of 21 February 2002 in appeal                  Action brought on 3 May 2002 by Vetoquinol AG
      no R 0338/2000-4 and the initial decision of the Office           (formerly Chassot AG) against the Office for Harmonis-
      for Harmonisation in the Internal Market of 2 February                             ation in the Internal Market
      2000, ref.: C000422014/1;
                                                                                (Case T-141/02)
—     declare the Community trade mark with registration
      no 000422014, the word and figurative mark ‘Intertops’,
      void.                                                                                (2002/C 169/73)
                                                                                (Language of the case: English)
Pleas in law and main arguments
                                                                        An action against the Office for Harmonisation in the Internal
Registered trade mark in      Figurative mark ‘INTERTOPS’ for
                                                                        Market was brought before the Court of First Instance of the
respect of which a dec-       services in Class 42 — Com-
                                                                        European Communities on 3 May 2002 by Vetoquinol AG
laration of nullity is        munity trade mark 422014
                                                                        (formerly Chassot AG), represented by Mr Axel Kockläuner of
sought:
                                                                        Meissner, Bolte & Partner, Munich (Germany).
Proprietor of the Com-        Intertops Sportwetten GmbH
munity trade mark:
                                                                        A further party before the Board of Appeal was VETO-Centre.
Party applying for a dec-     The applicant
laration of nullity of the
Community trade mark:                                                   The applicant claims that the Court should:
Trade mark or sign right      The German word mark                      —    annul the Decision of the First Board of Appeal of the
of applicant:                 ‘INTERTOPS SPORTWETTEN’ for                    defendant dated 15 February 2002 in case no R 218/
                              services in Class 42                           2001 (‘the contested Decision’);
Decision of Cancellation      Dismissal of application                  —    order that the costs of the proceedings be borne by the
Division:                                                                    defendant.


title: Case C-392/10: Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 4 August 2010 — Suiker Unie GmbH — Zuckerfabrik Anklam v Hauptzollamt Hamburg-Jonas

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/21

      Reference for a preliminary ruling from the Finanzgericht Hamburg (Germany) lodged on 4 August 2010 — Suiker Unie GmbH — Zuckerfabrik Anklam v Hauptzollamt Hamburg-Jonas
      (Case C-392/10)
      ()
      (2010/C 288/36)
      Language of the case: German

         Referring court

      Finanzgericht Hamburg

         Parties to the main proceedings

         Applicants: Suiker Unie GmbH — Zuckerfabrik Anklam

         Defendants: Hauptzollamt Hamburg-Jonas

         Question referred

      Is the condition for receipt of a differentiated refund established in Article 15(1) in conjunction with Article 15(3) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11), that is, completion of the customs import formalities, satisfied, when in the third country of destination following release for inward processing without collection of import duties the product undergoes a substantial processing or working within the meaning of Article 24 of Council Regulation (EC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1, as amended) and the product resulting from that processing or working is exported to a third country?


title: Case F-36/08: Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Schell v Commission (Staff case — Officials — Promotion — Allocation of promotion points by Directors-General — 2007 promotion procedure)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/84

         Judgment of the Civil Service Tribunal (Second Chamber) of 24 September 2009 — Schell v Commission
   (Case F-36/08) (1)

   (Staff case - Officials - Promotion - Allocation of promotion points by Directors-General - 2007 promotion procedure)
   2009/C 267/151
   Language of the case: French

      Parties

      Applicant: Arno Schell (Brussels, Belgium) (represented by: F.Frabetti, lawyer)

      Defendant: Commission of the European Communities (represented by: C. Berardis-Kayser and G. Berscheid, acting as Agents)

      Re:

   Staff case — Annulment of the applicant’s career development report for the period from 1 January 2006 to 31 December 2006 and annulment of his 2007 promotion report

      Operative part of the judgment

   The Tribunal:

               1.

               dismisses the action;

               2.

               orders Mr Schell to pay all of the costs.

      (1)  OJ C 142, 7/6/2008, p. 40.


title: Judgment of the Court (Sixth Chamber) of 6 November 2003 in Case C-78/02 (Reference for a preliminary ruling from the Dioikitiko Efeteio Athinon): Elliniko Dimosio v Maria Karageorgou (C-78/02), Katina Petrova (C-79/02), Loukas Vlachos (C-80/02) (Sixth VAT Directive — Article 21(1)(c) — Persons liable to tax — Person mentioning the tax on an invoice — Tax paid in error by a non-taxable person and included in the invoice established by that person)

text:
C 7/16                   EN                          Official Journal of the European Union                                             10.1.2004
1.    Dismisses the application.                                                               JUDGMENT OF THE COURT
2.    Orders the Kingdom of the Netherlands to pay the costs.
                                                                                (Sixth Chamber)
(1) OJ C 84 of 6.4.2002.
                                                                                of 6 November 2003
                                                                             in Case C-78/02 (Reference for a preliminary ruling from
                                                                             the Dioikitiko Efeteio Athinon): Elliniko Dimosio v Maria
                                                                             Karageorgou (C-78/02), Katina Petrova (C-79/02), Loukas
                  JUDGMENT OF THE COURT                                                              Vlachos (C-80/02) (1)
                           (Fifth Chamber)
                                                                             (Sixth VAT Directive — Article 21(1)(c) — Persons liable
                       of 13 November 2003                                   to tax — Person mentioning the tax on an invoice — Tax
                                                                             paid in error by a non-taxable person and included in the
                                                                                invoice established by that person)
in Case C-42/02 (Reference for a preliminary ruling
from the Ålands förvaltningsdomstol): Diana Elisabeth
                              Lindman (1)
                                                                                (2004/C 7/27)
(Freedom to provide services — Lottery tickets — Amount
won in a game of chance held in another Member State —
Income tax — Tax on games of chance — Special regime in                                           (Language of the case: Greek)
                          the Åland Islands)
                            (2004/C 7/26)                                    (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                   (Language of the case: Swedish)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             In Joined Cases C-78/02 to C-80/02: References to the Court
                                                                             under Article 234 EC by the Diikitiko Efetio Athinon (Greece)
                                                                             for a preliminary ruling in the proceedings pending before that
                                                                             court between Elliniko Dimosio and Maria Karageorgou (C-78/
In Case C-42/02: Reference to the Court under Article 234 EC
                                                                             02), Katina Petrova (C-79/02), Loukas Vlachos (C-80/02), on
by the Ålands förvaltningsdomstolen (Finland) for a prelimi-
                                                                             the interpretation of the Sixth Council Directive 77/388/EEC
nary ruling in the proceedings brought before that court by
                                                                             of 17 May 1977 on the harmonisation of the laws of the
Diana Elisabeth Lindman, on the interpretation of
                                                                             Member States relating to turnover taxes — Common system
Article 49 EC, the Court (Fifth Chamber), composed of:
                                                                             of value added tax: uniform basis of assessment (OJ 1977
C.W.A. Timmermans, President of the Fourth Chamber, acting
                                                                             L 145, p. 1) and in particular the rule in Article 21(1)(c) of that
as President of the Fifth Chamber, D.A.O. Edward (Rapporteur)
                                                                             directive to the effect that VAT is payable by any person who
and P. Jann, Judges; C. Stix-Hackl, Advocate General; L. Hew-
                                                                             mentions VAT on an invoice, the Court (Sixth Chamber),
lett, Principal Administrator, for the Registrar, has given a
                                                                             composed of: J.-P. Puissochet, President of the Chamber,
judgment on 13 November 2003, in which it has ruled:
                                                                             R. Schintgen, V. Skouris, N. Colneric and J.N. Cunha Rodrigues
                                                                             (Rapporteur), Judges; L.A. Geelhoed, Advocate General; H. von
Article 49 EC prohibits a Member State’s legislation under which             Holstein, Deputy Registrar, has given a judgment on 6 Novem-
winnings from games of chance organised in other Member States               ber 2003, in which it has ruled:
are treated as income of the winner chargeable to income tax, whereas
winnings from games of chance conducted in the Member State in
question are not taxable.
                                                                             1.    The amount mentioned as value added tax on the invoice drawn
                                                                                up by a person providing services to the State may not be
(1) OJ C 109 of 4.5.2002.
                                                                                classified as value added tax where that person erroneously
                                                                                believes that he is providing those services as a self-employed
                                                                                person whilst in reality there is an employer-employee relation-
                                                                                ship.
 ---pagebreak--- 10.1.2004                EN                           Official Journal of the European Union                                                 C 7/17
2.    Article 21(1)(c) of the Sixth Council Directive 77/388/EEC of           An administrative practice such as the one at issue in the main
      17 May 1977 on the harmonisation of the laws of the Member              proceedings, under which degrees awarded by a university of one
      States relating to turnover taxes — Common system of value              Member State cannot be recognised in another Member State when
      added tax: uniform basis of assessment does not preclude                the courses of preparation for those degrees were provided in the latter
      reimbursement of an amount mentioned in error by way of                 Member State by another educational establishment in accordance
      value added tax on an invoice or other document serving as              with an agreement made between the two establishments, is
      invoice where the services at issue are not subject to value added      incompatible with Article 43 EC.
      tax and the amount invoiced cannot therefore be classified as
      value added tax.
                                                                              (1) OJ C 144 of 15.6.2002.
(1) OJ C 169 of 13.7.2002 and OJ C 144 du 15.6.2002.
                                                                                ORDER OF THE COURT
                  JUDGMENT OF THE COURT
                                                                                (Fourth Chamber)
                           (Fifth Chamber)
                                                                                of 17 October 2003
                       of 13 November 2003
                                                                              nella causa C-35/02 (Reference for a preliminary ruling
in Case C-153/02 (Reference for a preliminary ruling from                     from the Bundesverwaltungsgericht): Landeszahnärzte-
the Giudice di pace di Genova): Valentina Neri v European                     kammer Hessen v Markus Vogel, Third parties: Landes-
School of Economics (ESE Insight World Education Sys-                         ärtztekammer Hessen, Oberbundesanwalt beim Bundes-
                              tem Ltd) (1)                                                          verwaltungsgericht (1)
(Freedom of establishment — Recognition of diplomas —                         (Article 104(3) of the Rules of Procedure — Freedom of
Degree issued by a university established in a Member State                   establishment — Freedom to provide services — Directives
— Courses of study in preparation for a degree awarded in                     78/686/EEC and 78/687/EEC — The practice of dentistry
another Member State and by another educational establish-                                                 by a doctor)
                                 ment)
                                                                                (2004/C 7/29)
                            (2004/C 7/28)
                     (Language of the case: Italian)                                             (Language of the case: German)
(Provisional translation; the definitive translation will be published        (Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                               in the European Court Reports)
In Case C-153/02: Reference to the Court under Article 234 EC                 In Case C-35/02: Reference to the Court under Article 234 EC
by the Giudice di pace di Genova (Italy) for a preliminary                    by the Bundesverwaltungsgericht (Germany) for a preliminary
ruling in the proceedings pending before that court between                   ruling in the proceedings pending before that court between
Valentina Neri and European School of Economics (ESE                          Landeszahnärztekammer Hessen and Markus Vogel; Third
Insight World Education System Ltd) on the interpretation of                  parties: Landesärtztekammer Hessen, Oberbundesanwalt beim
Articles 39 EC, 43 EC and 49 EC, of Council Decision 63/266/                  Bundesverwaltungsgericht, on the the interpretation of Council
EEC of 2 April 1963 laying down general principles for                        Directive 78/687/EEC of 25 July 1978 concerning the coordi-
implementing a common vocational training policy (OJ,                         nation of provisions laid down by law, regulation or adminis-
English Special Edition 1963-1964 (I), p. 25) and Council                     trative action in respect of the activities of dental practitioners
Directive 89/48/EEC of 21 December 1988 on a general                          (OJ 1978 L 233, p. 10), as amended by the Act concerning the
system for the recognition of higher-education diplomas                       conditions of accession of the Republic of Austria, the Republic
awarded on completion of professional education and training                  of Finland and the Kingdom of Sweden and the adjustments to
of at least three years’ duration (OJ 1989 L 19, p. 16), the                  the Treaties on which the European Union is founded (OJ
Court (Fifth Chamber), composed of: D.A.O. Edward, acting                     1994 C 241, p. 21, and OJ 1995 L 1, p. 1), the Court (Fourth
for the President of the Fifth Chamber, A. La Pergola and                     Chamber), composed of: C.W.A. Timmermans (Rapporteur),
S. von Bahr (Rapporteur), Judges; F.G. Jacobs, Advocate                       President of the Chamber, A. La Pergola and S. von Bahr,
General; L. Hewlett, Principal Administrator, for the Registrar,              Judges; A. Tizzano, Advocate General; R. Grass, Registrar, has
has given a judgment on 13 November 2003, in which it has                     made an order on 17 October 2003, the operative part of
ruled:                                                                        which is as follows:


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 21 January 1999 in Joined Cases T-129/95, T-2/96 and T-97/96: Neue Maxhütte Stahlwerke GmbH and Lech-Stahlwerke GmbH v. Commission of the European Communities (ECSC - Action for annulment - State aid to steel undertakings - Criterion of the conduct of a private investor - Principle of proportionality - Statement of reasons - Right to a fair hearing)

text:
27.3.1999           EN                 Official Journal of the European Communities                                 C 86/15
                                                 COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                         4. Orders the applicants to bear their own costs and to
                    of 21 January 1999                                pay the defendant's costs.
in Joined Cases T-129/95, T-2/96 and T-97/96: Neue
Maxhütte Stahlwerke GmbH and Lech-Stahlwerke GmbH                 5. Orders the Federal Republic of Germany and the
      v. Commission of the European Communities (1)                   United Kingdom of Great Britain and Northern
                                                                      Ireland to bear their own costs.
(ECSC Ð Action for annulment Ð State aid to steel
undertakings Ð Criterion of the conduct of a private
investor Ð Principle of proportionality Ð Statement of            (1) OJ C 229, 2.9.1995
                                                                      OJ C 64, 2.3.1996 and
             reasons Ð Right to a fair hearing)
                                                                      OJ C 247, 24.8.1996.
                       (1999/C 86/30)
              (Language of the case: German)
In Joined Cases T-129/95, T-2/96 and T-97/96: Neue Max-
                                                                    JUDGMENT OF THE COURT OF FIRST INSTANCE
hütte      Stahlwerke       GmbH,        established      at
Sulzbach-Rosenberg (Germany), and Lech-Stahlwerke                                      of 28 January 1999
GmbH, estblished at Meitingen-Herbertshofen (Germany),
                                                                  in Case T-230/95: Bretagne Angleterre Irlande (BAI) v.
represented by Rainer M. Bierwagen, of the Brussels Bar,
                                                                         Commission of the European Communities (1)
with an address for service in Luxembourg at the
Chambers of Elvinger and Dessoy, 31 Rue d'Eich,                   (Action for damages Ð Non-contractual liability Ð State
supported by Federal Republic of Germany (Agent: Ernst            aid Ð Communication to the complainant of the decision
Röder), v Commission of the European Communities                  addressed to the Member State concerned Ð Delay Ð
(Agents: Ulrich Wölker and Paul F. Nemitz), supported, in              Material and non-material damage Ð Causal link)
Cases T-2/96 and T-97/96, by United Kingdom of Great
Britain and Northern Ireland (Agents: Christopher Vajda                                   (1999/C 86/31)
and Lindsey Nicoll) Ð application, in Case T-129/95, for
annulment of Commission Decision Communitiesn
                                                                                (Language of the case: French)
95/422/ECSC of 4 April 1995 concerning State aid that
the Freistaat Bayern, a regional authority of the Federal
Republic of Germany, intends to grant to the ECSC steel           In Case T-230/95: Bretagne Angleterre Irlande (BAI),
undertakings Neue Maxhütte Stahlwerke GmbH, Sulz-                 established at Roscoff (France), represented by
bach-Rosenberg, and Lech-Stahlwerke GmbH, Meitingen-              Jean-Michel Payre, of the Paris Bar, with an address for
Herbertshofen (OJ L 253, 21.10.1995, p. 22), in Case              service in Luxembourg at the Chambers of Aloyse May,
T-2/96, for annulment of Commission Decision                      31 Grand-Rue, v. Commission of the European
96/178/ECSC of 18 October 1995 on State aid that                  Communities (Agents: GeÂrard Rozet and Anders Christian
Bavaria granted to the ECSC steel undertaking Neue Max-           Jessen) Ð application for compensation for the damage
hütte Stahlwerke GmbH, Sulzbach-Rosenberg (OJ L 53,               allegedly suffered by the applicant on account of the
2.3.1996, p. 41) and, in Case T-97/96, for annulment of           delayed communication to it by the Commission of the
Commission Decision 96/484/ECSC of 13 March 1996 on               text of its Decision of 7 June 1995 terminating the
State aid that Bavaria granted to the ECSC steel                  examination procedure initiated under Article 93(2) of the
undertaking Neue Maxhütte Stahlwerke GmbH, Sulzbach-              EC Treaty concerning aid in favour of Ferries Golfo de
Rosenberg (OJ L 198, 8.8.1996, p. 40) Ð the Court of              Vizcaya SA Ð the Court of First Instance (First Chamber,
First Instance (Fifth Chamber, Extended Composition),             Extended Composition), composed of: B. Vesterdorf,
composed       of:   J.    Azizi,  President,     and     R.      President, and C. W. Bellamy, R. M. Moura Ramos, J.
García-Valdecasas, R. M. Moura Ramos, M. Jaeger and P.            Pirrung and P. Mengozzi, Judges; B. Pastor, Principal
Mengozzi, Judges; A. Mair, Administrator, for the                 Administrator, for the Registrar, has given a judgment on
Registrar, has given a judgment on 21 January 1999, in            28 January 1999, in which it:
which it:
                                                                  1. Dismisses the action.
1. Dismisses the application for confidential treatment.
2. Dismisses the application for access to the file relating      2. Orders the applicant to pay the costs.
    to the Commission's decision of 1 August 1988.
                                                                  (1) OJ C 77, 16.3.1996.
3. Dismisses the applications in Joined Cases T-129/95,
    T-2/96 and T-97/96.


title: Order of the Court of First Instance of 7 December 1999 in Case T-108/99, Gemma Reggimenti v European Parliament (Officials — Actions — Time-limits — Public policy — Distinction between complaint and request under Article 90(1) of the Staff Regulations — Rejection of complaint — Late action — Inadmissible)

text:
18.3.2000               EN                     Official Journal of the European Communities                                        C 79/27
Benkelberg, Rechtsanwalt, Emmerich and Kleve, with an                     2. There is no need to adjudicate on the Council’s application for
address for service in Luxembourg at the Chambers of Faltz                    leave to intervene.
and Kremer, 6 Rue Heinrich Heine, against the Office for
Harmonisation in the Internal Market (trade marks and designs)            3. The parties shall bear their own costs.
(Agents: Detlef Schennen and Emmanuel Joly) — application
for annulment of the decision of the first Board of Appeal of             4. The Council, which has applied to intervene, shall bear its own
the Office for Harmonisation in the Internal Market (trade                    costs.
marks and designs) of 26 January 1999 (Case R 14/1998-1),
notified to the applicant on 1 February 1999 — the Court of
First Instance (Second Chamber), composed of J. Pirrung,                  (1) OJ 1999 C 160.
President, and A. Potocki and W.H. Meij, Judges; H. Jung,
Registrar, has made an order on 8 December 1999, the
operative part of which is as follows:
1. The action is dismissed as inadmissible.
2. The applicant is ordered to pay the costs.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
(1) OJ C 204 of 17.7.1999.                                                                        of 7 December 1999
                                                                          in Case T-108/99, Gemma Reggimenti v European Parlia-
                                                                                ment (1)
                                                                          (Officials — Actions — Time-limits — Public policy —
                                                                          Distinction between complaint and request under
                                                                          Article 90(1) of the Staff Regulations — Rejection of
                                                                                complaint — Late action — Inadmissible)
      ORDER OF THE COURT OF FIRST INSTANCE
                                                                                (2000/C 79/61)
                       of 1 December 1999
in Case T-81/99: Lily Karoline Schuerer v Commission of                                       (Language of the case: French)
                  the European Communities (1)
                                                                          In Case T-108/99, Gemma Reggimenti, official of the European
(Officials — Pensions — Weighting — Change of capital of                  Parliament, residing in Brussels, represented by Claudine
a Member State — Manifest inadmissibility — Action                        Junion, of the Brussels Bar, with an address for service in
                   manifestly unfounded in law)                           Luxembourg at the Chambers of Christine Nabozny, 3 Rue
                                                                          Mathias Tresch, against European Parliament (Agents: Hannu
                                                                          von Hertzen and Yannis Pantalis) — application for annulment
                           (2000/C 79/60)                                 of the decision of the European Parliament of 18 June 1998
                                                                          refusing the payment, on behalf of and in the name of the
                                                                          applicant, of family allowances, to which she is entitled in
                                                                          respect of her child, to third parties who have the child in their
                    (Language of the case: German)
                                                                          care, for the period from 29 August to 31 December 1997 —
                                                                          the Court of First Instance (Third Chamber), composed of
In Case T-81/99: Lily Karoline Schuerer, former official of the           K. Lenaerts, President, and J. Azizi and M. Jaeger, Judges;
Commission of the European Communities, represented by                    H. Jung, Registrar, has made an order on 7 December 1999,
Hermann J. Winzen, Rechtsanwalt, Munich, with an address                  the operative part of which is as follows:
for service in Luxembourg at the address of Marco Steil, 12
rue d’Anvers, against Commission of the European Communi-                 1. The action is dismissed as inadmissible.
ties — application for compensation amounting to
DEM 17 677,57, together with interest — the Court of First                2. The parties shall bear their own costs.
Instance (Third Chamber), composed of K. Lenaerts, President,
J. Azizi and M. Jaeger, Judges; H. Jung, Registrar, made an order
on 1 December 1999, the operative part of which is as follows:            (1) OJ C 226 of 7.8.1999.
1. The action is dismissed in part as manifestly inadmissible and,
    for the rest, as manifestly unfounded in law.