title: Action brought on 23 April 1997 by the Commission of the European Communities against Van Balkom Non-Ferro Scheiding BV (Case C-156/97)

text:
12 . 7 . 97             EN                       Official Journal of the European Communities                                    No C 212/9
Action brought on 23 April 1997 by the Commission                                  the jurisdiction clause by means of the requirements
of the European Communities against Van Balkom                                     laid down by that provision in respect of the validity
                     Non-Ferro Scheiding BV                                        of such clauses; that is also the case where the clause
                          ( Case C-156/97)                                         is adjudged valid, when the bill of lading containing
                                                                                the    clause   comes  within    the   framework      of  a
                              ( 97/C 212/17)                                       continuing business relationship between the parties,
                                                                                and it is thereby established that the relationship is
An action against Van Balkom Non-Ferro Scheiding BV                                governed by the general terms and conditions ( drawn
was brought before the Court of Justice of the European                            up by one of the parties, namely the carrier )
Communities on 23 April 1997 by the Commission of the                              containing that clause ( see the judgment in Case 71 /
European Communities, represented by H. Van Lier and                               83 (2 ) which cites earlier judgments underscoring the
G. zur Hausen, acting as Agents, with an address for                               need for the consent of the parties to be clearly and
service in Luxembourg at the office of C. Gomez de la                              precisely demonstrated ).
Cruz, of the Commission's Legal Service, Wagner Centre,
Kirchberg.                                                                         However, in the light of the insertion into the new
                                                                                wording of the provision of the reference to usage,
The applicant claims that the Court should :                                       which is prescriptive ( and thus unconnected to the
                                                                                will of the parties, at least so far as specifically
1 . order the defendant to pay to the Commission of the                            concerns a particular contract), the question arises
       European Communities the amount of ECU 251 649 ,                            whether the requirement of ( actual ) knowledge, or of
       plus interest due from 1 July 1991 at the percentage                        lack of awareness arising out of negligent and
       rates, published on the first working day of each                           inexcusable ignorance, is sufficient in view of the
       month, which the European Monetary Cooperation                              consistent incorporation ( in all agreements similar to
       Fund charges in respect of its ecu transactions, along                      that in issue ) of the jurisdiction clause . The question
       with the 4% default interest on ECU 251 649 owing                           arises, in other words, whether it is any longer
       since 1 May 1995 ;                                                          necessary to ascertain the will of the parties, despite
                                                                                the fact that Article 17 uses the word 'concluded' ( in
2 . order the defendant to pay the costs of the                                    the Italian version ), which implies an expression of
       proceedings .                                                               will and thus 'commercial' usage (customary clauses ).
Pleas in law and main arguments adduced in support:                         ( b ) The second question concerns the meaning of the
The action is based on contract BM 488/88 DE-NL,
                                                                                expression 'form which accords'. The first aspect
                                                                                concerns the appearance of the clause , that is whether
signed by the parties on 4 December 1990. Under
                                                                                it must necessarily be in writing signed by the party
Article 13 of that contract, the parties agreed that
                                                                                who has drawn it up and who has therefore expressed
all disputes regarding the validity, interpretation and
                                                                                the intention of relying upon it — for example — by
application of the contract should be referred to the Court
                                                                                signing the bill of lading referring to a clause which
of Justice of the European Communities. The Commission
decided, in accordance with German law, to terminate the
                                                                                in turn refers to an agreement conferring exclusive
                                                                                jurisdiction, even in the absence of the signature of
contract by reason of the defendant's failure to implement
it .
                                                                                the other party (the shipper ).
                                                                                The second aspect consists in establishing whether it
                                                                                is necessary for the jurisdiction clause to stand out
                                                                                prominently on it own within the contract as a
                                                                                whole, or whether it is sufficient ( and therefore of no
Reference for a preliminary ruling by the Corte Suprema                             consequence as regards the validity of the clause ) for
 di Cassazione by order of that court of 24 October 1996                            it to be inserted amongst numerous other clauses
 in the case of Societa Trasporti Castelletti Spedizioni                            drawn up in order to regulate the contract of carriage
           Internazionali SpA against Hugo Trumpy SpA                               in every respect.
                            ( Case C-159/97 )
                                                                                The third aspect relates to the language in which the
                                ( 97/C 212/ 18 )                                    clause is drawn up, that is to say, whether it must be
                                                                                in some way related to the nationality of the parties
 Reference has been made to the Court of Justice of the                              to the contract or whether it is sufficient for it to be a
 European Communities by order of the Corte Suprema di                               language regularly used in international trade or
 Cassazione ( Supreme Court of Cassation ) of 24 October                             commerce .
  1996, received at the Court Registry on 25 April 1997, for
 a preliminary ruling in the case of Societa Trasporti                        (c ) The third question is concerned with whether the
  Castelletti Spedizioni Internazionali SpA against Hugo                             court chosen must be in some way related to the
 Trumpy SpA on the following questions:                                              nationality and/or the residence of the parties to the
                                                                                contract or to the place of performance and/or
  ( a ) First question: In the case-law of the Court of Justice                      conclusion of the contract, provided that it is a court
         relating to the original wording of Article 17 ( ] )                        of a Contracting State, or whether the latter condition
         reference has been made to the need to ascertain and                        is sufficient without there being any other link with
         protect the actual will of the parties with regard to                       the substance of the relationship .


title: Judgment of the Court of First Instance of 26 February 2003 in Case T-164/01: Arnaldo Lucaccioni v Commission of the European Communities (Officials — Action for damages — Admissibility)

text:
C 112/30                 EN                          Official Journal of the European Union                                       10.5.2003
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 26 February 2003
                        of 26 February 2003
                                                                             in Case T-164/01: Arnaldo Lucaccioni v Commission of
                                                                                the European Communities (1)
in Case T-145/01: Benito Latino v Commission of the
                     European Communities ( 1)                                      (Officials — Action for damages — Admissibility)
                                                                                (2003/C 112/58)
(Officials — Occupational disease — Validity of the opinion
of the Medical Committee — Evidence of the occupational                                           (Language of the case: Italian)
origin of the disease — Scientific uncertainty — Proper
conduct of the procedure preceding the reference to the
                         Medical Committee)
                                                                             In Case T-164/01: Arnaldo Lucaccioni, a former official of the
                                                                             Commission of the European Commmunities, residing in St-
                                                                             Leonard-on-Sea (United Kingdom), represented by M. Cimino
                            (2003/C 112/57)                                  and F. Apruzzi, lawyers, against Commission of the European
                                                                             Communities (Agents: J. Currall and A. Dal Ferro) — appli-
                                                                             cation for compensation under the ordinary law governing
                     (Language of the case: French)                          non-contractual liability applicable under Article 236 EC, for
                                                                             pain and suffering and physical harm suffered by the applicant
                                                                             for the period preceding the onset of his occupational disease
                                                                             as a result of the Commission’s negligence, — the Court of
                                                                             First Instance (First Chamber), composed of: B. Vesterdorf,
                                                                             President, and N. J. Forwood and H. Legal, Judges; J. Palacio
In Case T-145/01: Benito Latino, former official of the                      González, Principal Administrator, for the Registrar, has given
Commission of the European Communities, residing in Séri-                    a judgment on 26 February 2003, in which it:
gnac-Peboudou (France), represented by G. Vandersanden
and L. Levi, lawyers, against Commission of the European                     1.     Dismisses the application as inadmissible;
Communities (Agents: J. Currall and J.-L. Fagnart) — appli-
cation for the annulment of the decision of the Commission                   2.     Orders the parties to bear their own costs.
of 10 August 2000 rejecting the applicant’s request that it
acknowledge the occupational origin of his arthritic symptoms
and charging to the applicant the fees and incidental expenses               (1 ) OJ C 275 of 29.9.01.
of the doctor appointed by the applicant to the Medical
Committee and half of the fees and incidental expenses of the
third doctor making up the committee - the Court of First
Instance (First Chamber), composed of B. Vesterdorf, President,
N. J. Forwood and H. Legal, Judges; D. Christensen, Adminis-
trator, for the Registrar, gave a judgment on 26 February
2003, in which it:                                                                JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                of 5 March 2003
1.     annuls the decision of the Commission of 10 August 2000
       insofar as it charges to the applicant the fees and incidental        in Case T-194/01: Unilever NV v Office for Harmonisation
       expenses of the doctor appointed by the applicant to the Medical      in the Internal Market (Trade Marks and Designs)
       Committee and half of the fees and incidental expenses of the                                       (OHIM) ( 1)
       third doctor;
                                                                             (Community trade mark — Three-dimensional mark —
                                                                             Shape of a product for dishwashers — Ovoid tablet —
2.     dismisses the remainder of the application;                           Absolute ground for refusal — Article 7(1)(b) of Regulation
                                                                                (EC) No 40/94)
3.     orders the parties to bear their own costs.
                                                                                (2003/C 112/59)
                                                                                (Language of the case: English)
( 1) OJ C 245 of 1.9.01.
                                                                             In Case T-194/01, Unilever NV, established in Rotterdam
                                                                             (Netherlands), represented by V. von Bomhard and A. Renck,


title: Case F-46/15: Action brought on 20 March 2015 — ZZ v Commission

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/34

         Action brought on 20 March 2015 — ZZ v Commission
   (Case F-46/15)
   (2015/C 190/40)
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: J.-N. Louis, N. de Montigny and D. Verbeke, lawyers)

      Defendant: European Commission

      Subject-matter and description of the proceedings

   Annulment of the decision of the Brussels settlements office refusing to recognise a disease suffered by the applicant as being a serious illness.

      Form of order sought

               —

               Annul the decision of the head of the Brussels settlements office of 27 May 2014 rejecting the request for recognition of the disease suffered by the applicant as being a serious illness and the request for 100 % payment of medical expenses connected with it;

               —

               order the European Commission to pay the costs.


title: Case T-186/15: Action brought on 14 April 2015 — CSTP Azienda della Mobilità v Commission

text:
               8.6.2015

               EN

               Official Journal of the European Union

               C 190/29

         Action brought on 14 April 2015 — CSTP Azienda della Mobilità v Commission
   (Case T-186/15)
   (2015/C 190/32)
   Language of the case: Italian

      Parties

      Applicant: CSTP Azienda della Mobilità SpA (Salerno, Italy) (represented by: G. Capo and L. Visone, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 19 January 2015 on State aid SA.35842 (2014/C) (ex 2012/NN), notified to the applicant on 19 February 2015, implemented by Italy;

               —

               declare, in accordance with Article 263 TFEU and Article 264 TFEU, that the Commission’s decision of 19 January 2015 in the proceedings relating to State aid SA.35842 (2014/C) (ex 2012/NN) (for EUR 4 9 51  838) is entirely null and void in so far as it states that the sums awarded by way of compensation for public service obligations within the meaning of Regulation (EEC) No 1191/69, granted under Article 11 of that regulation in respect of tariff obligations in the Local Public Transport sector, could be deemed a non-notified measure constituting State aid under Article 107(1) TFEU which is incompatible with the internal market;

               —

               declare, in accordance with Article 263 TFEU and Article 264 TFEU, that the Commission’s decision of 19 January 2015 in the proceedings relating to State aid SA.35842 is entirely null and void in so far as it lays down operational measures for the recovery of aid paid by the Italian State;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments are those relied on in Case T-185/15 Buonotourist v Commission.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 24 September 1998 in Case C-413/96 (reference for a preliminary ruling from the Højesteret): Skatteministeriet v. Sportgoods A/S (Customs duty - Constitution of a customs debt - Post-clearance recovery of import duties - Remission of import duties)

text:
7.11.98                EN                  Official Journal of the European Communities                                      C 340/3
2. A Member State whose authorities, in interpreting                       indicated in a declaration for release into free
     Articles 3(1) and 4(1) of the Second Directive 79/32/                 circulation, and where the levying of customs duties
     EEC, erroneously classified a product such as that at                 on products covered by the heading under which those
     issue in this case as a cigarette and did not suspend the             goods ought to have been classified was suspended at
     operation of the decision adopted, is not bound by                    the date on which that declaration was accepted but
     Community law to compensate the manufacturer for                      had been re-established when the error was detected,
     the damage sustained by the latter as a result of that                the customs authorities must not take account of that
     erroneous decision.                                                   suspension in order to recalculate the amount of the
                                                                           customs duties legally due on the date on which the
                                                                           declaration was accepted.
(1) OJ C 354 of 23.11.1996.
                                                                      2. When the Commission, after consultation with the
                                                                           Customs Code Committee, has delivered a decision
                                                                           addressed to a Member State holding that there was,
                                                                           in a specific case, no justification for granting
                                                                           remission of import duties pursuant to the provisions
               JUDGMENT OF THE COURT                                       of Council Regulation (EEC) No 1430/79 of 2 July
                        (Fifth Chamber)                                    1979 on the repayment or remission of import or
                                                                           export duties, and when that decision does not contain
                     of 24 September 1998                                  any legal or factual indication relating to the legal
                                                                           basis for effecting post-clearance recovery of the
in Case C-413/96 (reference for a preliminary ruling from
                                                                           import duties concerned under Regulation No 1697/
   the Hùjesteret): Skatteministeriet v. Sportgoods A/S (1)
                                                                           79, a national court may rule on the latter question,
(Customs duty Ð Constitution of a customs debt Ð Post-                     having recourse, if appropriate, to the procedure under
clearance recovery of import duties Ð Remission of                         Article 177 of the EC Treaty.
                         import duties)
                         (98/C 340/05)                                (1) OJ C 74 of 8.3.1997.
                (Language of the case: Danish)
  (Provisional translation; the definitive translation will be                       JUDGMENT OF THE COURT
          published in the European Court Reports)
                                                                                (Fifth Chamber)
                                                                                of 24 September 1998
In Case C-413/96: reference to the Court under Article 177
of the EC Treaty from the Hùjesteret (Danish Supreme                  in    Case    C-35/97: Commission of the             European
Court) for a preliminary ruling in the proceedings pending                          Communities v. French Republic (1)
before that court between Skatteministeriet and
Sportgoods A/S Ð on the interpretation of Article 2(1) of
                                                                      (Failure to fulfil obligations Ð Article 48 of the EC Treaty
Council Regulation (EEC) No 1697/79 of 24 July 1979 on
                                                                      Ð Unemployment benefits Ð Award of supplementary
                                                                      retirement pension points Ð Conditions of dismissal Ð
the post-clearance recovery of import duties or export
duties which have not been required of the person liable
                                                                      Article 7 of Regulation (EEC) No 1612/68 Ð Frontier
for payment on goods entered for a customs procedure
                                                                                workers)
involving the obligation to pay such duties (OJ L 197 of                                       (98/C 340/06)
3.8.1979, p. 1) and on the legal effect of a decision
delivered by the Commission following consultation with
the Customs Code Committee Ð the Court (Fifth                                         (Language of the case: French)
Chamber), composed of: C. Gulmann, President of the
Chamber, M. Wathelet, J. C. Moitinho de Almeida,
D. A. O. Edward (Rapporteur) and L. Sevón, Judges; S.                   (Provisional translation; the definitive translation will be
Alber, Advocate General; R. Grass, Registrar, has given a                       published in the European Court Reports)
judgment on 24 September 1998, in which it has ruled:
                                                                      In Case C-35/97: Commission of the European
1. Article 2(1) of Council Regulation (EEC) No 1697/79                Communities (Agents: Pieter Jan Kuyper and Pieter van
     of 24 July 1979 on the post-clearance recovery of                Nuffel) v. French Republic (Agents: Kareen Rispal-
     import duties or export duties which have not been               Bellanger and Claude Chavance) Ð application for a
     required of the person liable for payment on goods               declaration that, by excluding frontier workers residing in
     entered for a customs procedure involving the                    Belgium from qualifying for supplementary retirement
     obligation to pay such duties must be construed as               pension points after being placed in early retirement, the
     meaning that, where a post-clearance inspection has              French Republic has failed to fulfil its obligations under
     revealed an error in the tariff classification of goods          Article 48(2) of the EC Treaty and Article 7 of Regulation


title: Case T-50/09: Judgment of the General Court of 15 March 2011 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids) (Community trade mark — Opposition proceedings — Application for Community figurative mark Dada & Co. kids — Earlier national word mark DADA — Relative ground for refusal — Absence of genuine use of the earlier mark — Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009))

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/15

         Judgment of the General Court of 15 March 2011 — Ifemy’s v OHIM — Dada & Co Kids (Dada & Co. kids)
   (Case T-50/09) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark Dada & Co. kids - Earlier national word mark DADA - Relative ground for refusal - Absence of genuine use of the earlier mark - Article 43(2) and (3) of Regulation (EC) No 40/94 (now Article 42(2) and (3) of Regulation (EC) No 207/2009))
   2011/C 130/26
   Language of the case: English

      Parties

      Applicant: Ifemy’s Holding GmbH (Munich, Germany) (represented by: H.-G. Augustinowski, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: A. Folliard-Monguiral, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Dada & Co. Kids Srl (Prato, Italy)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 27 November 2008 (Case R 911/2008-4), relating to opposition proceedings between Ifemy’s Holding GmbH and Dada & Co. Kids Srl.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Ifemy’s Holding GmbH to pay the costs.

      (1)  OJ C 90, 18.4.2009.


title: Case F -32/05: Order of the Civil Service Tribunal of 15 September 2009 — Perez Santander v Council

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/85

         Order of the Civil Service Tribunal of 15 September 2009 — Perez Santander v Council
   (Case F -32/05) (1)

   2009/C 267/156

      Language of the case: French

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

      (1)  OJ C 193, 6.5.2008, p. 32 (Case initially registered before the Court of First Instance of the European Communities under number T-201/05 and transferred to the Civil Service Tribunal of the European Union by order of 15.12.2005).


title: Case T-39/08: Action brought on 22 January 2008 — Evropaïki Dynamiki v Commission

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/34

         Action brought on 22 January 2008 — Evropaïki Dynamiki v Commission
   (Case T-39/08)
   (2008/C 92/69)
   Language of the case: English
   Parties

      Applicant: Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE (Athens, Greece) (represented by: N. Korogiannakis, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul the decision of the Commission to evaluate the applicant's bid as not successful and award the contract to the successful contractor;

               —

               order the Commission to pay the applicant's damages suffered on account of the tendering procedure in question for an amount of EUR 441 564,50;

               —

               order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application, even if the current application is rejected;

               —

               order the Commission to pay the applicant's legal and other costs and expenses incurred in connection with this application.

         Pleas in law and main arguments
   The applicant submitted a bid in response to the defendant's call for an open tender concerning hosting, management, enhancement, promotion and maintenance of the Commission's Internet portal on eLearning (elearningeuropa.info) (OJ 2007/S 87-105977). The applicant contests the defendant's decision of 12 November 2007 rejecting the applicant's bid and informing the applicant that the contract would be awarded to another tenderer. The applicant further requests compensation for the alleged damages caused by the tender procedure.
   In support of its application, the applicant submits that the defendant committed manifest errors of assessment and failed to state reasons in accordance with Article 253 EC. Furthermore, the applicant alleges that the defendant confused evaluation criteria with award criteria when evaluating the bids and used evaluation criteria that were not disclosed to the tenderers before the deadline for submitting the offers. Finally, the applicant contends that the defendant violated the principle of non-discrimination.


title: Case T-467/17: Action brought on 26 July 2017 — Barata v Parliament

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/33

         Action brought on 26 July 2017 — Barata v Parliament
   (Case T-467/17)
   (2017/C 347/42)
   Language of the case: English

      Parties

      Applicant: Carlos Manuel Henriques Barata (Lisbon, Portugal) (represented by: G. Pandey, D. Rovetta and V. Villante, lawyers)

      Defendant: European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul and set aside the following decisions and acts, where appropriate having previously declared illegal and not applicable to the applicant the Notice of Competition EP/CAST/S/16/2016 (1) under Article 277 of the TFEU:

                           —

                           the decision of 26/10/2016 of the Director for Human Resources Development not to include Mr Barata in the draft list of candidates for a contract staff in function group I as a driver under the so called CAST contract procedure 2016/2017;

                           —

                           the decision via email of 28/11/2016 by INLO DG of the Parliament to reconfirm the above decision not to include Mr Barata in the draft list of candidates for a contract staff in function group I as a driver under the so called CAST contract procedure 2016/2017;

                           —

                           the decision of 25/04/2017 of the European Parliament’s General Secretariat, signed by Mr Klaus Welle, notified to Mr Barata via registered letter, which rejected the applicant’s complaint under Article 90(2) of the Staff Regulation of Officials of the European Union, lodged on 09/01/2017;

               —

               order the European Parliament to bear the costs of the present proceedings

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law arguing that there was a breach of Article 25 of the EU staff regulations and of Article 296 TFEU resulting from a manifest error in the assessment of the applicant’s theoretical skills and manifest error in the assessment of facts, considering the inauthenticity of the questionnaire certificate allegedly corresponding to the document submitted by the applicant during the competition. The manifest error occurred as a consequence of lack of supervision by the Parliament over the due diligence of a subcontractor entrusted with the assessment of the applications in the 2016 CAST selection proceedings. This as such had an adverse impact on the obligations to state sufficient reasons to the applicant.
   The applicant also relies on the breach of the effective judicial protection principle by negating his right of defence and rights to be heard, thus amounting to a breach of Article 41 of the Charter of Fundamental Rights of the European Union and submits a plea of illegality and inapplicability of the Notice of Competition EP/CAST/S/16/2016.
   The applicant also submits that the Parliament acted ultra vires by delegating selection procedure to the Ecole de Maîtrise Automobile (hereinafter subcontractor), which has not been bound by the EU Staff Regulations and internal EU Institutions Code of Conducts. According to the applicant, this amounts to a breach of the notice of competition and of Article 30 of the Staff Regulation in combination with Annex III to the Staff Regulation reinforcing abovementioned breach of the duty of sound and good administration.
   The applicant further relies on a breach of Article 1 of the Staff Regulations, of the principle of non-discrimination and of the principle of proportionality with regard to the conduct of the competition by the Parliament’s and/or the subcontractor and in relation to limiting the choice of a second language for candidates participating in this call for expression of interests.
   Finally the applicant argues that there has been a breach of the principle of equal opportunity as well as a breach of Article 296(2) of the TFEU and Article 25 of the Staff Regulations — with regards to EP and the subcontractor’s failure to state reasons for their decisions, reinforced by lack of supervision over the latter. Applicant submits that it amounts to a breach of the Notice of Competition EP/CAST/S/16/2016, breach of the Principle of Reasonable and sound Administration and breach of the applicant's legitimate expectations and of the principle of equality.

      (1)  Call for expressions of interest — contract staff — functional group I — Drivers (f/m) EP/CAST/S/16/2016 (OJ 2016, C 131 A/01)


title: Case T-72/11: Action brought on 3 February 2011 — Sogepi Consulting y Publicidad v OHIM (ESPETEC)

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/15

         Action brought on 3 February 2011 — Sogepi Consulting y Publicidad v OHIM (ESPETEC)
   (Case T-72/11)
   2011/C 113/31
   Language of the case: Spanish

      Parties

      Applicant: Sogepi Consulting y Publicidad, SL (Vic, Spain) (represented by J.P. de Oliveira Vaz Miranda Sousa, T. Barceló Rebaque and N. Esteve Manasanch, lawyers)

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

      Form of order sought

   The applicant requests the Court to:

               —

               annul and revoke the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 12 November 2010, in Case R 312/2010-2;

               —

               as a consequence allow registration of Community trade mark No 7.114.572 ‘ESPETEC’; and

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Word mark ‘ESPETEC’, for goods in Class 29

      Decision of the Examiner: Refusal of the mark applied for

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 207/2009 (1), since the term ‘ESPETEC’ is not devoid of distinctive character when considered independently of the goods applied for and infringement of Article 7(3) of Regulation (EC) No 207/2009 given the distortion and incorrect assessment of the evidence of use on the market of the mark ‘ESPETEC’.

      (1)  Council Regulation (EC) No 2007/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1)


title: Case F-56/08: Action brought on 9 June 2008 — De Britto Patricio-Dias v Commission

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/74

         Action brought on 9 June 2008 — De Britto Patricio-Dias v Commission
   (Case F-56/08)
   (2008/C 209/136)
   Language of the case: French
   Parties

      Applicant: Jorge De Britto Patricio-Dias (Brussels, Belgium) (represented by: L. Massaux, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the appointing authority's decision to reject the applicant's request that his children be entitled to primary insurance cover.
   Form of order sought

               —

               Annul the appointing authority's decision No R/559/07 of 10 March 2008;

               —

               Rule that his children are entitled to primary insurance cover;

               —

               Order the Commission of the European Communities to pay the costs.


               25.6.2015

               EN

               Official Journal of the European Union

               C 209/7

         Action brought on 21 April 2015 by the EFTA Surveillance Authority against Iceland
   (Case E-11/15)
   (2015/C 209/06)
   An action against Iceland was brought before the EFTA Court on 21 April 2015 by the EFTA Surveillance Authority, represented by Markus Schneider and Marlene Lie Hakkebo, acting as Agents of the EFTA Surveillance Authority, 35 Rue Belliard, B-1040 Brussels.
   The EFTA Surveillance Authority requests the EFTA Court to:

               1.

               Declare that Iceland has failed to fulfil its obligations under the Act referred to at points 7a, 7e and 7i of Annex XIX to the Agreement on the European Economic Area, (Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council), as adapted to the Agreement by way of Protocol 1 thereto, and under Article 7 of the Agreement, by failing to adopt the measures necessary to implement the Act within the time prescribed.

               2.

               Order Iceland to bear the costs of these proceedings.

      Legal and factual background and pleas in law adduced in support:

               —

               The application addresses Iceland’s failure to comply, no later than 24 November 2014, with a reasoned opinion delivered by the EFTA Surveillance Authority on 24 September 2014 regarding that State’s failure to implement into its national legal order Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, as referred to at points 7a, 7e and 7i of Annex XIX to the Agreement on the European Economic Area, and as adapted to that Agreement by way of Protocol 1 thereto (‘the Act’).

               —

               The EFTA Surveillance Authority submits that Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement by failing to adopt the measures necessary to implement the Act within the time prescribed.


title: Case T-40/10: Action brought on 29 January 2010 — Elf Aquitaine v Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/49

         Action brought on 29 January 2010 — Elf Aquitaine v Commission
   (Case T-40/10)
   2010/C 100/75
   Language of the case: French

      Parties

      Applicant: Elf Aquitaine SA (Courbevoie, France) (represented by: É. Morgan de Rivery, S. Thibault-Liger and A. Noël-Baron, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               annul, on the basis of Article 263 of the Treaty on the Functioning of the European Union (TFEU), the whole of [Commission] Decision No C(2009) 8682 final of 11 November 2009 in Case COMP/38589 — Heat Stabilisers in so far as it concerns Elf Aquitaine;

               —

               in the alternative, annul, on the basis of Article 263 TFEU:

                           —

                           Article 2(11), (13), (28) and (30) of Commission’ Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it imposes i) two fines of EUR 3 864 000 and EUR 7 154 000 jointly and severally on Arkema France, CECA and Elf Aquitaine and ii) two fines of EUR 2 704 800 and EUR 5 007 800 on Elf Aquitaine alone; and

                           —

                           Article 1(1)(h) and (2)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 in so far as those two provisions state that Elf Aquitaine infringed Article 81 EC and Article 53 EEA respectively (i) in the tin stabilisers sector between 16 March 1994 and 31 March 1996 and between 9 September 1997 and 21 March 2000 and (ii) in the ESBO/esters sector between 11 September 1991 and 26 September 2000;

               —

               in the further alternative:

                           —

                           annul, on the basis of Article 263 TFEU, Article 1(1)(h) of Commission Decision No C(2009) 8682 final of 11 November 2009 inasmuch as it states that Elf Aquitaine infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996;

                           —

                           and reduce, on the basis of Article 261 TFEU:

                                       —

                                       the fines of EUR 3 864 000 and EUR 7 154 000 imposed jointly and severally on Arkema France, CECA and Elf Aquitaine by Article 2(11) and (28) respectively of Commission Decision No C(2009) 8682 final of 11 November 2009; and

                                       —

                                       the fines of EUR 2 704 800 and EUR 5 007 800 imposed on Elf Aquitaine by Article 2(13) and (30) respectively of Commission Decision C(2009) 8682 final of 11 November 2009;

               —

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

      Pleas in law and main arguments

   In the present case, the applicant is seeking the annulment of Commission Decision C(2009) 8682 final of 11 November 2009 relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/39.859 — Heat Stabilisers) concerning cartels in the markets for tin stabilisers and ESBO/esters heat stabilisers throughout the EEA involving price-fixing, the allocation of markets and the exchange of sensitive commercial information or, in the alternative, the cancellation or the reduction of the fine imposed on the applicant.
   The action is based, primarily, on two pleas for the annulment of the whole of the decision. The first plea alleges infringement of the applicant’s rights of defence. In the second plea, the applicant alleges that the decision is vitiated by a number of errors of law relating to liability for infringements committed by its subsidiary Arkema and its lower-tier subsidiary CECA.
   The action is also based on two pleas in the alternative, and two pleas in the further alternative. In the third plea (in the alternative), the applicant alleges a number of errors of law which must lead, at the very least, to the cancellation of the four fines which were imposed on it under Article 2 of the decision. In the fourth plea (in the alternative), the applicant considers that were the Court to uphold the third plea, it should also annul Article 1 of the decision in so far as it concerns the applicant. In the fifth plea (in the further alternative), if the Court were to reject the first part of the third plea concerning the infringement of the limitation rules, the applicant considers that, at the very least, Article 1(1)(h) of the decision should be annulled inasmuch as it states that the applicant infringed Article 81 EC and Article 53 EEA in the tin stabilisers sector between 16 March 1994 and 31 March 1996. In the sixth plea (in the further alternative), the applicant submits that if the Court were to reject the two principal pleas and the third plea submitted in the alternative, the infringement of its rights of defence should, at the very least, lead to a reduction of the four fines which were imposed on it.


title: Case F-115/06: Action brought on 2 October 2006 — Sanchez Ferriz and Others v Commission

text:
               2.12.2006

               EN

               Official Journal of the European Union

               C 294/66

         Action brought on 2 October 2006 — Sanchez Ferriz and Others v Commission
   (Case F-115/06)
   (2006/C 294/130)
   Language of the case: French
   Parties

      Applicants: Carlos Sanchez Ferriz (Brussels, Belgium) and Others (represented by: F. Frabetti, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Civil Service Tribunal should:

               —

               set aside the list of officials promoted under the 2005 promotion procedure in so far as that list does not include the applicants' names and, incidentally, annul the preparatory measures leading to that decision;

               —

               in the alternative, annul the allocation of promotion points during the promotion procedure mentioned above, in particular, in consequence of the recommendations made by the promotion committees;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments
   In support of their action, the applicants put forward five pleas, alleging:

               —

               in the first, infringement of Article 45 of the Staff Regulations;

               —

               in the second, infringement of the General Provisions implementing that article;

               —

               in the third, infringement of the principle of non-discrimination and a manifest error of assessment;

               —

               in the fourth, infringement of Articles 6 and 10 of Annex XIII to the Staff Regulations;

               —

               in the fifth, infringement of the principles of the prohibition of arbitrary procedure and of the prohibition of the abuse of powers, and infringement of the obligation to state reasons.


title: Case F-80/15: Action brought on 26 May 2015 — ZZ and ZZ v Commission

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/58

         Action brought on 26 May 2015 — ZZ and ZZ v Commission
   (Case F-80/15)
   (2015/C 279/74)
   Language of the case: French

      Parties

      Applicants: ZZ and ZZ (represented by: T. Bontinck and A. Guillerme, lawyers)

      Defendant: Commission

      Subject-matter and description of the proceedings

   A finding of the unlawfulness of Article 45 of and Annex I to the Staff Regulations of Officials and the transitional measures relating thereto, and annulment of the decisions of the Appointing Authority not to include the applicants on the list of officials promoted to grade AD 13 or AD 14 in promotion year 2014.

      Form of order sought

               —

               Principally:

                           —

                           Find that Article 45 of the Staff Regulations and Annex I thereto, as well as the transitional measures relating thereto are unlawful;

                           —

                           Annul the decision of the Appointing Authority not to include the applicants on the list of officials promoted to grade AD 13 or AD 14 in promotion year 2014 provided for in Article 45 of the Staff Regulations;

                           —

                           Order the Commission to pay the costs;

               —

               In the alternative:

                           —

                           Annul the decision of the Appointing Authority not to include the applicants on the list of officials promoted to grade AD 13 or AD 14 in promotion year 2014 provided for in Article 45 of the Staff Regulations;

                           —

                           Order the Commission to pay the costs.


title: Action brought on 30 September 1997 by the Commission of the European Communities against the Kingdom of the Netherlands (Case C-341/97)

text:
22 . 11 . 97          EN                 Official Journal of the European Communities                                      C 357/ 19
Reference for a preliminary ruling by the Verwaltungsge            Reference for a preliminary ruling from the Bayerische
richtshof (Vienna) by order of that court of 12 August              Verwaltungsgericht Ansbach by order of that court of
1997 in the case of Erna Pelzl, Johannes Kovac, Harald              7 July 1997 in the case of 1 . Omer Nazli, 2. Caglar Nazli
Hohenberg, Kovac Schrott GmbH NFG KG, Wiener Stad                               and 3 . Melike Nazli v. Stadt Nürnberg
tische Allgemeine Versicherungs AG, Ulf Zmölnig, Kovac                                       ( Case C-340/97)
Management GmbH P. Kovac & Co. GmbH and Kovac
Eisen Maschinen Metalle GmbH NFG KG against the                                                ( 97/C 357/33 )
               Steiermärkische Landesregierung
                       ( Case C-338/97 )                            Reference has been made to the Court of Justice of the
                                                                    European Communities by an order of the Bayerische Ver
                         ( 97/C 357/32 )
                                                                    waltungsgericht ( Bavarian Administrative Court ) Ansbach
                                                                    ( Fifth Chamber) of 7 July 1997, which was received at the
                                                                    Court Registry on 1 October 1997, for a preliminary
                                                                    ruling in the case of 1 . Omer Nazli, 2 . Caglar Nazli and
Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsge
                                                                    3 . Melike Nazli against Stadt Nürnberg on the following
                                                                    questions:
richtshof ( Administrative Court), Vienna, of 12 August
1997, received at the Court Registry on 29 September
1997, for a preliminary ruling in the case of Erna Pelzl,           1 . Does a Turkish worker who has achieved the legal
Johannes Kovac, Harald Hohenberg, Kovac Schrott                           status conferred by the third indent of Article 6 ( 1 ) of
GmbH NFG KG, Wiener Stadtische Allgemeine Versiche                       Decision No 1 /80 of 19 September 1980 of the
rungs AG, Ulf Zmölnig, Kovac Management GmbH, P.                         Association Council ( set up by the Association
Kovac & Co . GmbH and Kovac Eisen Maschinen Metalle                      Agreement between the European Economic
GmbH NFG KG v. Steiermärkische Landesregierung                            Community and Turkey ) on the development of the
( Government of Steiermark) on the following questions:                  Association forfeit that status subsequently if he is
                                                                          taken into custody on strong suspicion of having
                                                                         committed a crime for which he is ultimately
                                                                         convicted and given a suspended prison sentence ?
Does Article 33 ( 1 ) of the sixth Council Directive 77/388/
EEC of 17 May 1977 on the harmonization of the laws of
the Member States relating to turnover taxes — Common               2.   If not:
system of value added tax: uniform basis of assessment (')
preclude, on the ground that it is in the nature of a                     Is the expulsion of a Turkish worker in such
turnover tax, the maintenance in force of a tax which is
                                                                         circumstances solely on general preventive grounds,
payable in a Bundesland ( Regional State ) of a Member                   that is to say, as a deterrent to other aliens, compatible
State of the European Communities:                                       with Article 14 ( 1 ) of Decision No 1 /80 ?
— in respect of each calender year by all undertakings
     directly or indirectly involved in tourism which have
     their registered office or a place of business within
     certain closely defined areas, where the sum of those
     areas comprises almost the whole area of the                   Action brought on 30 September 1997 by the Commission
     Bundesland, and
                                                                    of the European Communities against the Kingdom of the
                                                                                Netherlands
                                                                                ( Case C-341/97)
— the amount of which is essentially proportional to the                                       ( 97/C 357/34 )
     turnover achieved by the undertaking primarily in that
     Regional State within a calendar year, but where the
     rate of contribution varies according to the intensity of      An action against the Kingdom of the Netherlands was
     tourism in that area and according to the degree of            brought before the Court of Justice of the European
     benefit which the legislature deems the commercial             Communities on 30 September 1997 by the Commission
     sector in question ( occupational group ) to derive from       of the European Communities, represented by H. van
     tourism, and                                                   Vliet, acting as Agent, with an address for service in
                                                                    Luxembourg at the office of C. Gomez de la Cruz,
                                                                    Wagner Centre, Kirchberg.
— where no provision is made for the deduction of input
     tax ?                                                          The applicant claims that the Court should :
                                                                    — declare that, by adopting on 16 December 1992 the
C ) OJ L 145 , p. 1 .
                                                                          Regulation for the prevention of the introduction of
                                                                          foreign toxic dinoflagellata, the Kingdom of the
                                                                          Netherlands has failed to fulfil its obligations pursuant
                                                                          to Articles 30 and 36 of the EC Treaty,
 ---pagebreak--- C 357/20             EN                  Official Journal of the European Communities                                     22 . 11 . 97
— order the Kingdom of the Netherlands to pay the                    1997, which was received at the Court Registry on
     costs .                                                         1 October 1997, for a preliminary ruling in the case of
                                                                    Lloyd Schuhfabrik Meyer & Co. GmbH v. Kliisen Handel
                                                                    BY on the following questions :
Pleas in law and main arguments adduced in support:
                                                                    1 . Does it suffice, for there to be a likelihood of
                                                                         confusion because of similarity between the sign and
By prohibiting the importation into the Netherlands of                   the trade mark and identity of the goods or services
( young) molluscs from other Member States for the                       covered by the sign and the mark, that the mark and
purposes of their being placed in surface waters ( for                   the sign each consist of a single syllable only, are
example, in order to let them grow there ), the contested                identical in sound both at the beginning and as regards
Regulation has the effect of restricting intra-Community                 the only combination of vowels and the — single —
trade and thus falls within the prohibition contained in                 final consonant of the mark recurs in the sign in
Article 30 of the Treaty.                                                similar form ('t' instead of 'd') in a consonant cluster
                                                                         of three consonants including ' s'; specifically, do the
                                                                         designations ' Lloyd' and 'Loints' for shoes conflict ?
Contrary to - the view taken by the Netherlands
Government, the contested regulation is not justified               2 . What is the significance in this connection of the
pursuant to Article 36 of the Treaty. According to the                   wording of the Directive ( l ) which provides that the
                                                                         likelihood of confusion includes the likelihood of
Netherlands Government, the objective of the contested
Regulation is to prevent the introduction into Netherlands               association between the sign and the trade mark ?
waters of foreign algae ( dinoflagellata ) and of cysts             3 . Must a special distinctive character, and hence an
deriving therefrom ( survival phases ) which may lead to the             extended material scope of protection of a
formation of biotoxins such as paralytic shellfish poison                distinguishing sign, already be taken to exist where
('PSP') in bivalve molluscs. The consumption of bivalve                  there is a degree of recognition of 10% in the relevant
molluscs containing PSP can, according to the Netherlands                trade circles ?
Government, be harmful to human health (giving rise,
inter alia, to symptoms of paralysis and sometimes even                  Would that be the case with a degree of recognition of
death ). According to the Netherlands Government, bivalve                36% ?
molluscs can contain PSP, because they feed on algae
which produce that substance. However, it has not been                   Would such an extension of the scope of protection
proven that the transportation of bivalve molluscs can                   lead to a different answer to question 1 , if that
result in the introduction of PSP-producing dinoflagellata.              question were to be answered by the Court of Justice
There are numerous coastal zones in the Community                        in the negative ?
where PSP-producing dinoflagellata have never been
found, or at any rate not for many years; the importation           4.   Is a trade mark to be taken to have an enhanced
of bivalve molluscs from those regions and their                         distinctive character       simply     because it has      no
introduction into Netherlands waters does not involve any                descriptive elements ?
risk .  The   Commission      therefore considers   that  the
objective pursued by the Netherlands may also be                    (') First Council Directive 89/104/EEC of 21 December 1988 to
achieved by imposing a requirement that imported                        approximate the laws of the Member States relating to trade
                                                                        marks ( OJ L 40, 11 . 2 . 1989, p. 1 ).
consignments of bivalve molluscs may be introduced into
Netherlands waters only if they are accompanied by a
certificate showing that the consignment in question
comes from a coastal zone where PSP-producing
dinoflagellata have never been found, or at any rate not in
the recent past.                                                    Action brought on 1 October 1997 by the Commission of
                                                                    the European Communities against the Kingdom of
                                                                                Belgium
                                                                                ( Case C-343/97)
                                                                                ( 97/C 357/36 )
Reference for a preliminary ruling from the Landgericht             An action agaist the Kingdom of Belgium was brought
Miinchen I by order of that court of 11 September 1997              before the Court of Justice of the European Communities
in the case of Lloyd Schuhfabrik Meyer & Co. GmbH v.                on 1 October 1997 by the Commission of the European
                     Kliisen Handel BY                              Communities, represented by Gotz zur Hausen, Legal
                                                                    Adviser, acting as Agent, with an address for service in
                      ( Case C-342/97
                                                                    Luxembourg at the office of Carlos Gomez de la Cruz,
                        ( 97/C 357/35 )                             of the Commission 's Legal Service, Wagner Centre,
                                                                    Kirchberg.
                                                                    The Commission claims that the Court should :
Reference has been made to the Court of Justice of the
European Communities by an order of the Landgericht                 — declare that, by failing to adopt all the laws,
Miinchen I ( Munich I Regional Court) of 11 September                    regulations and administrative provisions necessary to


title: Case C-228/04: Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/11

         Reference for a preliminary ruling by the Tribunale Amministrativo Regionale del Lazio, Division Ia, by order of that court of 22 April 2004 in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l
   (Case C-228/04)
   (2004/C 190/18)
   Reference has been made to the Court of Justice of the European Communities by order of Division Ia of the Tribunale Amministrativo Regionale del Lazio (Regional Administrative Court, Lazio) of 22 April 2004, received at the Court Registry on 2 June 2004, for a preliminary ruling in the case of Consorzio G.f.M. v Ministry of Defence and ‘La Cascina’ s.c.r.l. and Zilch s.r.l, on the following questions:

               1)

               Must subparagraphs (e) and (f) of Council Directive 92/50/EEC (1)of 18 June 1992 relating to the coordination of procedures for the award of public service contracts, as regards only the abovementioned provisions, be interpreted as meaning that, where the Community legislature employs the expression ‘has not fulfilled obligations relating to the payment of social security contributions in accordance with the legal provisions of the country in which he is established or with those of the country of the contracting authority’ or ‘has not fulfilled obligations relating to the payment of taxes in accordance with the legal provisions of the country of the contracting authority’, the legislature intended to refer - solely and exclusively - to a situation in which the person concerned has - when the period prescribed for submitting applications to participate in a public tendering procedure expires (or in any event before the award of the contract, as indicated under point III.4 above) - fulfilled those obligations by paying in full and in time?

               2)

               Consequently, must the Italian national implementing measure (Article 12 (d) and (e) of Legislative Decree No 157 of 17 March 1995) – in so far as, unlike the Community provision cited above, it allows the exclusion from tendering procedures of persons who ‘are not in compliance in respect of obligations relating to the payment of social security contributions for employees, in accordance with Italian legislation or the legislation of the State in which they are established’ or who ‘are not in compliance in respect of obligations relating to the payment of taxes, in accordance with Italian legislation or the legislation of the State in which they are established’ - be interpreted with reference solely to the failure - verifiable at the date mentioned above (the expiry of the period prescribed for submitting applications to participate or immediately before the award, even provisional, of the contract) - to fulfil those obligations, without any importance being attached to subsequent ‘regularisation’ of their position?

               3)

               Or, conversely (if, in the light of the indications set out in question 2 above, the national measure is held not to be in harmony with the rationale and function of the Community provision), may the national legislature be regarded, in the light of the limitations to which it is subject for the purpose of giving effect to the Community rules contained in the Directive at issue, as being entitled to introduce the option of allowing the admission to a tendering procedure of persons who, although not ‘in compliance’ when the period prescribed for participation in the procedure expires, nevertheless show that they can regularise their position (and have taken positive steps to do so) before the award of the contract?

               4)

               And, if the interpretation referred to in question 3 above is held to be workable - thus permitting the introduction of more flexible rules than would be allowed on a stricter interpretation of the ‘fulfilment’ of obligations referred to by the Community legislature - do such rules conflict with fundamental Community principles, such as the principle of equal treatment for all citizens of the Union, or – with regard only to public tendering procedures – that of equal conditions for all persons who have applied for admission to such procedures?

      (1)  OJ L 209 of 24.7.1992, p. 1.


title: Case T-328/03: Judgment of the Court of First Instance of  2 May 2006  — O2 (Germany) v Commission (Competition — Agreements, decisions and concerted practices — Notified agreement — Third generation of mobile telecommunications — Negative clearance — Individual exemption — Analysis of the situation in the absence of an agreement — Impact of the agreement on competition)

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/15

         Judgment of the Court of First Instance of 2 May 2006 — O2 (Germany) v Commission
   (Case T-328/03) (1)

   (Competition - Agreements, decisions and concerted practices - Notified agreement - Third generation of mobile telecommunications - Negative clearance - Individual exemption - Analysis of the situation in the absence of an agreement - Impact of the agreement on competition)
   (2006/C 154/40)
   Language of the case: English
   Parties

      Applicant: O2 (Germany) GmbH & Co. OHG, (Munich, Germany) (represented by: N. Green QC, K. Bacon, Barrister, and by B. Amory and F. Marchini Camia, lawyers)

      Defendant: Commission of the European Communities (represented initially by: R. Wainwright, S. Rating and P. Oliver, and subsequently by É. Gippini Fournier, P. Hellström and K. Mojzesowicz, Agents)
   Re:
   Application for annulment of Articles 2 and 3(a) of Commission Decision 2004/207/EC of 16 July 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.369: T-Mobile Deutschland/O2 Germany: Network Sharing Rahmenvertrag) (OJ 2004 L 75, p. 32)
   Operative part of the judgment
   The Court:

               1.

               Annuls Articles 2 and 3(a) of Commission Decision 2004/207/EC of 16 July 2003 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.369: T-Mobile Deutschland/O2 Germany: Network Sharing Rahmenvertrag) in so far as they imply that the clauses referred to in those articles fall within the scope of Article 81 EC and Article 53 of the EEA Agreement;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 275, 15.11.2003.


title: Action brought on 17 July 1995 by Hilaire Della Pietra against the Commission of the European Communities (Case T-148/95)

text:
 14 . 10 . 95          EN                    Official Journal of the European Communities                                  No C 268/25
in Luxembourg, represented by Giancarlo Lattanzi, of the                nomination,      infringement     of     essential   procedural
Massa-Carrara Bar, with an address for service in                       requirements and misuse of powers .
Luxembourg at 33 rue Godchaux.
The applicant claims that the Court should :
— annul the notice entitled ' Call for nominations for the              Action brought on 17 July 1995 by Hilaire Delia Pietra
     office of Ombudsman', published on 23 May 1995 ( OJ                  against the Commission of the European Communities
     No C 127, p . 4 ), and all acts connected with it or                                      ( Case T-148/95 )
     adopted as a consequence , particularly:                                                    ( 95/C 268/54 )
     — the Secretary General's Decision No 019473 of
                                                                                (Language of tbe case: Frencb)
          15 June 1995 ,
     — the acts relating to the admissibility of the                    An action against the Commission of the European
          nominations of the persons concerned ;                        Communities was brought before the Court of First
                                                                        Instance on 17 July 1995 by Hilaire Delia Pietra , resident in
                                                                        Brussels , represented by Georges Vandersanden, of the
     — the administrative acts following the public hearing             Brussels Bar, with an address for service in Luxembourg at
          on 28 and 29 June 1995 ,                                      the offices of Fiduciaire Myson Sàrl, 1 Rue Glesener .
— order the European Parliament to pay the costs of the                 The applicant claims that the Court should :
     proceedings .
                                                                       — annul the decision by Mr A. J. Gaston contained in a
                                                                            note of 25 October 1994 by which, in so far as the
Pleas in law and main arguments adduced in support:                         applicant refused to undergo surgery, he reduced to 0 %
                                                                            the 4 % rate of invalidity that the applicant had been
                                                                            recognized as suffering by the Medical Committee , in its
The applicant states that he forwarded his nomination for                   report of 15 November 1991 ,
the office of Ombudsman following the issue of the notice
entitled ' Call for nominations for the office of Ombudsman '          — order the Commission to pay nominal damages of one
( OJ No C 127, 23 . 5 . 1995 , p . 4 ). He was not notified of any          ECU in compensation for the non-material damage
decision concerning his nomination , but deduced that he                    suffered,
had not been successful from the fact that, according to the
information published in the bulletin 'Info Memo 109 ' of              — order the Commission to pay the fees of the doctors to
21 June 1995 , he was not one of the six nominees due to be                 whom the applicant had to have recourse,
heard by the Parliament's Committee on Petitions .
                                                                       — order the Commission to pay all the costs .
The applicant contests the provisions adopted for the
implementation of Article 138e of the Treaty on European               Pleas in law and main arguments adduced in support:
Union ( which provides for the appointment of the
Ombudsman ), particularly Rule 159 of the Rules of                     The applicant considers that the defendant committed a
Procedure of the European Parliament, the notice calling for            manifest error in refusing to recognize his state of partial
nominations and , above all, the procedure used by the                 permanent invalidity as found by the Medical Committee,
Parliament for consideration of the nominations entered .               on the pretext that he refused to undergo surgery . He points
According to the applicant, the notice calling for                      out that the Medical Committee recognized that his state
nominations lays down requirements which are obscure,                  corresponded to a rate of partial permanent invalidity of
ambiguous , impossible to fulfil within the prescribed period          4 % ; although the report adds that that rate of invalidity
and scarcely mutually compatible and that it is contrary to            could be reduced to 0 % if he had an operation, nevertheless
the fundamental principles of the Treaty on the basis of                an official cannot be compelled to undergo surgery nor be
which the post of Ombudsman was created . As regards the               penalized by the administration for not doing so, even if the
procedure for considering the nominations, the applicant                operation presents only a slight risk, since the risk can never
submits that his nomination was neither registered nor                  be totally excluded . The applicant maintains that the
notified to the Members who were to elect the Ombudsman;                Commission's attitude, with its particular insistence that he
furthermore , he was not informed of any decision                       should undergo surgery, goes beyond the sphere within
concerning the outcome of his nomination .                              which it is entitled to intervene and manifestly exceeds its
                                                                       powers .
In support of his application, the applicant alleges                   The applicant maintains, furthermore , that the many faults
infringement of the Treaty on European Union, lack of                   committed by the institution in flagrant fashion, as shown in
competence of the authorities in deciding not to consider his           the file concerning the consequences of his accident on
 ---pagebreak--- No C 268/26          EN                    Official Journal of the European Communities                                   14 . 10 . 95
10 August 1982, should be penalized by payment of                     the conditions to which the Commission made subject
damages to compensate for the non-material damage                     approval of the programme in question. The applicant
suffered, to which should be added reimbursement of the               affirms in this respect that it has scrupulously complied with
fees of the doctors whom he was obliged to consult in the             both the rules and the conditions and stresses in particular
course of this procedure .                                            the fact that there was never any mention of any prohibition
                                                                      whatsoever on subcontracting. The applicant also claims
                                                                      that, in the present case, there has been a breach of the
                                                                      legitimate expectations flowing from the initial approval of
                                                                      the project.
Action brought on 20 July 1995 by INEF — Instituto
Europeu de Formaçao Profissional, Lda, against the
         Commission of the European Communities
                       ( Case T-151 /95 )
                         ( 95/C 268/55 )                              Action brought on 24 July 1995 by Odette Nicos Petrides
                                                                      Co Inc against the Commission of the European
             (Language of the case: Portuguese)                                                   Communities
                                                                                ( Case T-152/95 )
An action against the Commission of the European
Communities was brought before the Court of First                                                ( 95/C 268/56 )
Instance of the European Communities on 20 July 1995 by
INEF — Instituto Europeu de Formaçao Profissional, Lda,                               (Language of the case: French)
whose registered office is at 85 Rua Breiner, Porto,
represented by Bolota Belchior, of the Vila Nova de Gaia              An action against the Commission of the European
Bar, with an address for service in Luxembourg at the                 Communities was brought before the Court of First
Chambers of Dr Jacques Schroeder, Faltz & Associés, 6 Rue             Instance of the European Communities on 24 July 1995 by
Heinrich Heine, Luxembourg.                                           Odette Nicos Petrides Co Inc, established at Kavala
                                                                      ( Greece ), represented by Edouard Didier and Joël Grange,
The applicant claims that the Court should:                           of the Paris Bar, with an address for service in Luxembourg
— annul the decision of the Commission of 2 December
                                                                      at the Chambers of Carlos Zeyen, 67 Rue Ermesinde .
     1991 , notified to the applicant by a letter from the
     Commission of 12 May 1995 ,                                      The applicant claims that the Court should:
— order the Commission to pay the costs .                             — declare that the Commission has incurred liability
                                                                           pursuant to the second paragraph of Article 215 of the
Pleas in law and main arguments adduced in support:                        Treaty of Rome,
The applicant, a Portuguese sociedade por quotas ( limited            — consequently, order the Commission to make good the
liability company ), challenges a decision of the Commission               damage suffered by the applicant and to pay to the latter
in which it decided not to consider eligible, within the                   the sum of ECU 20 403 788 ,
meaning of the Community rules on the European Social
Fund ( ESF) programmes, certain expenditure in respect of a           — order the Commission to pay all of the costs and
training programme intended for 2 740 young persons . On                   expenses, evidence of which will be supplied at a later
the basis of that decision, DAFSE ( Departamento para                      date .
Asuntos do Fundo Social Europeu — the Portuguese
 European Social Fund Agency) required the applicant to                Pleas in law and main arguments adduced in support:
 repay Esc 17 323 265 and Esc 14 173 581 in connection
 with the contributions of the European Social Fund and the            The applicant, a company incorporated under Greek law,
 Portuguese State respectively in the context of financing the         engaged primarily in the processing and sale of tobacco in
 aforementioned programme .                                            Greece and abroad, claims compensation for the damage
                                                                       suffered by it as a result of the Commission's refusal , in June,
 The applicant alleges in the first place that Article 190 of the      August and November 1990 , to allocate to the applicant
 Treaty has been infringed since the contested decision does           certain consignments of tobacco held by the Greek
 not state any reasons or grounds whatsoever for finding not           intervention agency, despite the fact that it had offered the
 eligible the expenditure in question .                                best terms . Thereafter, it was not until 11 months later that
                                                                       those stocks were again placed on the market, but on terms
 Furthermore, the decision is contrary to the rights of the            which a medium-sized undertaking such as the applicant
 defence of the applicant since it was adopted without the             could not possibly fulfil. The Commission decided to sell
 applicant having been heard beforehand.                               105 986 276 kg, divided into 11 consignments. Each of
 Thirdly, contrary to Article 6 of Regulation (EEC)                    those consignments comprised quantities of tobacco of a
 No 2950/83 , the Commission did not give a hearing to the             specified variety which were held by the intervention
 Portuguese State before taking the disputed decision.                 agencies of the various Member States of the Community
                                                                       concerned . That consolidation made it virtually impossible
 Finally, the applicant alleges that there has been an                 for small and medium-sized undertakings to have access to
 infringement of the applicable Community rules as well as of          the tobacco in question, in view of the considerable volumes


title: Case C-231/08 P: Order of the Court of 3 February 2009 — Massimo Giannini v Commission of the European Communities (Appeal — Community civil service — Right to a fair hearing — Infringement of Articles 4, 27 and 29 of the Staff Regulations — Principle of non-discrimination — Interest of the service and duty of care — Distortion of the evidence and rules on evidence — Appeal manifestly inadmissible in part and manifestly unfounded in part)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/18

         Order of the Court of 3 February 2009 — Massimo Giannini v Commission of the European Communities
   (Case C-231/08 P) (1)

   (Appeal - Community civil service - Right to a fair hearing - Infringement of Articles 4, 27 and 29 of the Staff Regulations - Principle of non-discrimination - Interest of the service and duty of care - Distortion of the evidence and rules on evidence - Appeal manifestly inadmissible in part and manifestly unfounded in part)
   2009/C 113/36
   Language of the case: French

      Parties

      Appellant: Massimo Giannini (represented by: L. Levi and C. Ronzi, avocats)

      Other party to the proceedings: Commission of the European Communities (represented by: G. Berscheid and L. Lozano Palacios, Agents)

      Re:

   Appeal against the judgment of the Court of First Instance (Third Chamber) delivered on 12 March 2008 in Case T-100/04 Giannani v Commission in which the Court dismissed the appellant’s application for annulment of the decision of the selection board in Competition COM/A/9/01 with a view to constituting a reserve list for the recruitment of administrators in the fields of economics and statistics not to include his name on the competition reserve list and for damages to be awarded — Infringement of right to a fair hearing by reason of the excessive length of the procedure — Infringement of Articles 4, 27 and 29 of the Staff Regulations and the concepts of interest of the service and duty of care — Infringement of the principle of non-discrimination and the rules on evidence

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               The appellant is ordered to pay the costs.

      (1)  OJ C 223, 30.8.2008.


title: Case T-235/08: Action brought on 9 June 2008 — Acron and Dorogobuzh v Council

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/59

         Action brought on 9 June 2008 — Acron and Dorogobuzh v Council
   (Case T-235/08)
   (2008/C 209/106)
   Language of the case: English
   Parties

      Applicants: Acron OAO (Veliky Novgorod, Russia) and Dorogobuzh OAO (Verkhnedneprovsky, Russia) (represented by: P. Vander Schueren and B. Evtimov, lawyers)

      Defendant: Council of the European Union
   Form of order sought

               —

               Annul Council Regulation (EC) No 236/2008 of 10 March 2008 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 of the anti-dumping duty on imports of ammonium nitrate originating in Russia, insofar as it imposes an anti-dumping duty on the applicants and their related companies, as defined in paragraph 11 of the contested regulation;

               —

               Order the competent institutions, in light of the gravity of breaches of Community law found, to discontinue the imposition of the anti-dumping duty with respect to the applicants and their related companies, until the Community institutions have adopted the measures necessary to comply with the Court's judgment;

               —

               Order the Council to pay the costs of and occasioned by these proceedings.

         Pleas in law and main arguments
   The applicants, Russian producers and exporters of ammonium nitrate, seek the annulment, pursuant to Article 230 EC, of Council Regulation (EC) No 236/2008 (‘the contested regulation’) (1).
   In support of their application, the applicants put forward a single ground for annulment, divided into two pleas. The applicants submit that the Community institutions wrongly established the normal value for the applicants, leading to its artificial increase; hence reached an erroneous finding of dumping, thereby breaching Articles 1 and 2 of the Basic Regulation (2), committing a series of manifest errors of assessment and violating fundamental principles of Community law. These breaches directly led, according to the applicants, to the unwarranted termination of the partial interim review without amendment of the anti-dumping measure with respect to the applicants.
   More specifically, the applicants claim, on the basis of their first plea, that the Community institutions erred in law and violated Article 2(3) and (5) of the Basic Regulation, by disregarding a major part of the applicants' costs of production as being unreliable and/or by de facto applying a non-market economy methodology for establishing the major part of the applicants normal value.
   Furthermore, the applicants submit that once having decided to proceed with the gas adjustment, the Commission violated Article 2(5), second sentence and/or made manifest error of appreciation and showed a lack of reasoning, by implementing the gas adjustment on the basis of the intra-Community price of gas at Waidhaus Germany and failing to deduct from the amount of adjustment the 30 % Russian export duty on Russian gas.
   The applicants submit that had the dumping margin been determined correctly, in accordance with the Basic Regulation and fundamental principles of Community law, the Community institutions would have found absence of or de minimis dumping, and the anti-dumping measures could have been repealed or significantly amended with respect to the applicants and their related companies.

      (1)  Council Regulation (EC) No 236/2008 of 10 March 2008 terminating the partial interim review pursuant to Article 11(3) of Regulation (EC) No 384/96 of the anti-dumping duty on imports of ammonium nitrate originating in Russia (OJ 2008 L 75, p. 1).

      (2)  Council Regulation (EC) No 384/96 of 22 December 1995 on protection against dumped imports from countries not members of the European Community (OJ 1996 L 56, p. 1).


title: Action brought on 26 May 1997 by Silvio Busacca and others against the Court of Auditors of the European Communities (Case T-164/97)

text:
No C 212/32            EN                  Official Journal of the European Communities                                     12 . 7 . 97
2 . breachof the principle of legal certainty: the safeguard          — order the defendant to pay all the costs .
     measures is not sufficiently clear and precise for
     individuals to be able to ascertain their rights and
     duties;                                                          Pleas in law and main arguments adduced in support:
3 . infringement of Article 133 ( 1 ) of the Treaty: customs          The applicants, who are officials of the Court of Auditors,
     duties on imports of goods from the OCT and charges              contest the fact that the arrangements for termination of
     having equivalent effect are to be completely                    service introduced by Council Regulation ( EC, Euratom,
     abolished;                                                       ECSC ) No 2688/95 H following the accession to the
                                                                      European Union of Austria, Finland and Sweden, in order
4 . infringement of Articles 132 ( 1 ) and 134 of the EC              to make it easier for nationals of those three new Member
     Treaty, in conjunction with Article 102 of the OCT               States to gain entry to the European civil service, are in
     Decision ;                                                       fact reserved exclusively for officials of the European
                                                                      Parliament.
5 . infringement of Article 7 ( 5 ) of the (WTO ) Agreement
     on Safeguards, together with Article 228 ( 7) of the EC
     Treaty;                                                          In support of their claims, they assert that Regulation ( EC,
                                                                      Euratom, ECSC ) No 2688/95 , cited above, is illegal . In
6 . infringement of Article 109 ( 1 ) of the OCT Decision;            their view, that regulation was adopted :
7. infringement of Article 109 ( 2 ) of the OCT Decision;             — in breach of Article 24 of the Treaty of 8 April 1965
                                                                           establishing a Single Council and a Single Commission
8 . breach of essential procedural requirements : failure to               of the European Communities (the 'Merger Treaty')
     comply with the rules of procedure of the Advisory                    and of the principle of a single European civil service,
     Committee on Safeguard Measures for the OCT;                          enshrined in Article C of the Treaty on European
                                                                           Union,
9 . infringement of Article 190 of the EC Treaty.
(') OJ No L 112 , 29 . 4 . 1997, p . 3 .                              — in disregard of the obligation to provide a statement of
                                                                           reasons, as laid down in Article 190 of the Treaty, of
                                                                           the requirement that the Staff Regulations Committee
                                                                           be consulted pursuant to Article 10 of the Staff
                                                                           Regulations of officials, and of Community legislative
                                                                           procedure . The applicants point out in that regard
Action brought on 26 May 1997 by Silvio Busacca and                        that, for the purposes of its enactment on the basis of
others against the Court of Auditors of the European                       Article 24 of the Merger Treaty, it was necessary for
                             Communities                                   the regulation in issue to be adopted by the Council
                                                                           acting by a qualified majority on a proposal from the
                          ( Case T-164/97)                                 Commission. However, under Article 189a of the
                             97/C 212/63                                   Treaty, the Council can adopt an act constituting an
                                                                           amendment to the Commission's proposal only if it
                (Language of the case: French)                             acts unanimously. In addition to the fact that the text
                                                                           finally adopted is substantially different from the
An action against the Court of Auditors of the European                    proposal submitted for consultation purposes to the
 Communities was brought before the Court of First                         institutions, the Council adopted that text on the basis
Instance of the European Communities on 26 May 1997                        of a qualified majority, whilst nevertheless referring, in
 by Silvio Busacca, residing in Luxembourg, Carlo Degli                    the preamble to the regulation, to the initial proposal
Abbati, residing in Luxembourg, Pamela Rattigan, residing                  made by the Commission,
 at Mamer ( Luxembourg ), Gisela Tremont, residing at
 Schrassig ( Luxembourg ) and Cecile Vandam, residing at
                                                                      — in breach of the principle of non-discrimination or
 Bousval ( Belgium), represented by Georges Vandersanden
 and Laure Levi, of the Brussels Bar, with an address for
                                                                           equality. As regards this point, the applicants consider
                                                                           that, as a result of the regulation in issue, officials in
 service in Luxembourg at the#offices of Fiduciaire Myson
                                                                            institutions other than the European Parliament are
 Sari, 30 Rue de Cessange .
                                                                            being discriminated against, both in fact and in law,
                                                                            by comparison with officials of the Parliament. That
 The applicants claims that the Court should :                              discrimination appears all the more flagrant having
                                                                            regard to the fact that, in order to benefit from the
 — annul the decision taken by the appointing authority                     effects of Regulation ( EC, Euratom, ECSC ) No 2688/
      in respect of each of the applicants on 16 September                  95 , all that any of the applicants need do is to procure
      1996 , rejecting their requests lodged on 22 August                   a transfer to the European Parliament.
      1996, 29 August 1996, 22 August 1996, 23 August
      1996 and 28 August 1996 respectively, and annul, in
      so far as may be necessary, the decision dated                   Lastly, the applicants consider that a regulation vitiated by
      28 February 1997 expressly rejecting the complaints              all the defects indicated above cannot have been adopted
      submitted by each of the applicants,                             for the purposes for which Community legislative powers
 ---pagebreak--- 12. 7. 97             I ENM                   Official Journal of the European Communities                              No C 212/33
have been conferred on the Council . Consequently, the                              Removal from the register of T-99/96 (')
abovementioned respects in which it is claimed to be                                                 ( 97/C 212/64 )
illegal are indicative of a misuse of powers .
                                                                                (Language of the case: French)
(') Council Regulation ( EC, Euratom, ECSC) No 2688/95 of                By order of 13 May 1997 the President of the Fourth
    17 November 1995 introducing special measures to terminate           Chamber of the Court of First Instance of the European
    the service of officials of the European Communities as a
    result of the accession of Austria, Finland and Sweden ( OJ No
                                                                         Communities has ordered the removal from the register of
    L 280, 23 . 11 . 1995 , p. 1 ).                                      Case T-99/96 : Franz Eppe v. Commission of the European
                                                                         Communities .
                                                                         ( 1 ) OJ No C 269, 14 . 9 . 1996 .