title: Order of the Court of First Instance of 9 January 2001 in Case T-149/00: Innova, Centro Euromediterraneo per lo Sviluppo Sostenibile v Commission of the European Communities (Action for annulment — Action concerning what is in fact a dispute of a contractual nature — Lack of jurisdiction of the Court of First Instance)

text:
5.5.2001                EN                     Official Journal of the European Communities                                          C 134/21
1.    Dismissed the application;                                               ORDER OF THE COURT OF FIRST INSTANCE
2.    Ordered the applicant to pay the costs.                                                    of 17 January 2001
                                                                          in Case T-124/99: Autosalone Ispra dei Fretelli Rossi Snc
(1) OJ C 79 of 18.3.00.                                                   v European Atomic Energy Authority, represented by the
                                                                                Commission of the European Communities (1)
                                                                          (Action for compensation — Non-contractual liability —
                                                                          Flood — Obstruction of a drain — Time-limit — No effect
                                                                                on running of time)
                                                                                (2001/C 134/46)
    JUDGMENT OF THE COURT OF FIRST INSTANCE
                                                                                (Language of the case: Italian)
                        of 18 January 2001
                                                                          In Case T-124/99: Autosalone Ispra dei Fratelli Rossi Snc,
                                                                          established in Ispra (Italy), represented by F. Venuti, of the
in Case T-65/00: Angeliki Ioannou v Council of the                        Busto Arsizio Bar, with an address for service in Luxembourg
                        European Union (1)                                at the Chambers of A. Kronshagen, 22 Rue Marie-Adelaïde,
                                                                          against European Atomic Energy Community, represented
(Officials — Refusal of recruitment — Physical unfitness                  by the Commission of the European Communities (Agents:
— Opinion of the medical board — Judicial review —                        H. Speyart and P. Stancanelli) — application for a declaration
Comprehensible link between the medical findings and the                  that the European Atomic Energy Community is liable for the
                      conclusion of unfitness)                            harm sustained by the applicant following a flood in Ispra
                                                                          during the night of 1-2 June 1992 and, accordingly, for an
                                                                          order that that Community is to make good that damage —
                         (2001/C 134/45)                                  the Court of First Instance (Second Chamber), composed of
                                                                          A.W.H. Meij, President, and A. Potocki and J. Pirrung, Judges;
                                                                          H. Jung, Registrar, has made an order on 17 January 2001, the
                    (Language of the case: French)                        operative part of which is as follows:
                                                                          1.    The application is dismissed as manifestly inadmissible;
In Case T-65/00: Angeliki Ioannou, a former employee of the
Economic Union between Belgium, the Netherlands and                       2.    The applicant is ordered to bear its own costs and to pay those
Luxembourg (Benelux) assigned to the Schengen Secretariat,                      incurred by the Commission.
residing in Brussels, represented by J. van Rossum, of the
Brussels Bar, with an address for service in Luxembourg at the            (1) OJ C 226, 7.8.1999, p. 39.
offices of Société de Gestion Fiduciaire, 13 Avenue du Bois, v
Council of the European Union (Agents: F. Anton and M. Bauer)
— application for annulment of the Council’s decision of
21 May 1999 refusing to appoint the applicant a probationary
official upon the integration of the Schengen Secretariat into
the General Secretariat of the Council on the ground of
physical unfitness to perform the duties envisaged — the Court                  ORDER OF THE COURT OF FIRST INSTANCE
of First Instance (Third Chamber), composed of: J. Azizi,
President, and K. Lenaerts and M. Jaeger, Judges; J. Palacio                                      of 9 January 2001
González, Administrator, for the Registrar, has given a judg-
ment on 18 January 2001, in which it:                                     in Case T-149/00: Innova, Centro Euromediterraneo per
                                                                          lo Sviluppo Sostenibile v Commission of the European
1.    Annuls the decision of the Council of 21 May 1999 refusing                                    Communities (1)
      to appoint the applicant a probationary official upon the
      integration of the Schengen Secretariat into the Secretariat of     (Action for annulment — Action concerning what is in fact
      the Council on the ground of physical unfitness to perform the      a dispute of a contractual nature — Lack of jurisdiction of
      duties envisaged;                                                                      the Court of First Instance)
2.    Orders the Council to pay the costs.                                                         (2001/C 134/47)
(1) OJ C 135 of 13.5.2000.                                                                    (Language of the case: French)
                                                                          In Case T-149/00: Innova, Centro Euromediterraneo per lo
                                                                          Sviluppo Sostenibile, established at Calatafimi (Italy), represent-
 ---pagebreak--- C 134/22                EN                       Official Journal of the European Communities                                      5.5.2001
ed by D. Fosselard, of the Brussels Bar, with an address for                ORDER OF THE PRESIDENT OF THE COURT OF FIRST
service in Luxembourg at the Chambers of Messrs Arendt &                                                 INSTANCE
Medernach, 8-10 Rue Mathias Hardt, v Commission of the
European Communities (Agents: M.-J. Jonczy and E. Paasivirta)
– application for annulment of the Commission’s decision of                                         of 15 January 2001
23 March 2000 terminating the contract concluded with the
applicant relating to the Dionysos project — the Court of
First Instance (Fourth Chamber), composed of: P. Mengozzi,                  in Case T-236/00 R: Gabriele Stauner and Others
President, and V. Tiili and R.M. Moura Ramos, Judges; H. Jung,              v. European Parliament and Commission of the European
Registrar, made an order on 9 January 2001, the operative                                              Communities
part of which is as follows:
1.    The application is dismissed as inadmissible.                         (Interim relief proceedings — Framework agreement on
                                                                            Relations between the European Parliament and the Com-
2.    The applicant is to pay the costs, including those relating to the             mission — Article 197 CE — Admissibility)
      proceedings for interim measures.
                                                                                (2001/C 134/49)
(1) OJ C 233 of 12.8.2000.
                                                                                (Language of the case: German)
                                                                            In Case T-236/00 R: Gabriele Stauner, residing in Wolfrats-
                                                                            hausen (Germany), Freddy Blak, residing in Næstved (Den-
       ORDER OF THE COURT OF FIRST INSTANCE                                 mark), Jens-Peter Bonde, residing in Bagsværd (Denmark),
                                                                            Theodorus Bouwman, residing in Eindhoven (Netherlands),
                        of 10 January 2001                                  Kathalijne Maria Buitenweg, residing in Amsterdam (Nether-
                                                                            lands), Mogens Camre, residing in Copenhagen, Rijk van Dam,
                                                                            residing in Rotterdam (Netherlands), Michl Ebner, residing
in Case T-153/00: Spain Pharma S.A. v Commission of the                     in Bolzano (Italy), Christopher Heaton-Harris, residing in
                   European Communities (1)                                 Kettering, Northamptonshire (United Kingdom), Lousewies
                                                                            van der Laan, residing in Brussels, Joost Lagendijk, residing in
(Action for a declaration of failure to act — Case not                      Rotterdam, Nelly Maes, residing in Sinaai (Belgium), Franz-
                     proceeding to judgment)                                Xaver Mayer, residing in Landau-sur-l’Isar (Germany), Franzis-
                                                                            ka Emilia Müller, residing in Bruck (Upper Palatinate) (Germ-
                          (2001/C 134/48)                                   any), Alexander Radwan, residing in Rottach-Egern (Germany),
                                                                            Alexander de Roo, residing in Amsterdam, Heide Rühle,
                                                                            residing in Stuttgart (Germany), Ursula Schleicher, residing in
                   (Language of the case: Spanish)                          Munich (Germany), Inger Schöring, residing in Gävle (Sweden),
                                                                            Esko Olavi Seppänen, residing in Helsinki, Bart Staes, residing
                                                                            in Antwerp (Belgium), Claude Turmes, residing in Esch-sur-
In Case T-153/00: Spain Pharma S.A., established in Madrid,                 Alzette (Luxembourg), Members of the European Parliament,
represented by R. Gutiérrez Sánchez, of the Madrid Bar, with               represented by J. Sedemund et T. Lübbig, Rechtsanwälte,
an address for service in Luxembourg at the Chambers of                     Berlin, with an address for service in Luxembourg at the
Messrs Molitor, Feltgen & Harpes, 55 Boulevard de la Pétrusse,              Chambers of M. di Stefano, 49 Avenue de la Gare, against
v Commission of the European Communities (Agent: E. Gip-                    European Parliament (Agents: C. Pennera et M. Berger) and
pini Fournier) — application for a declaration that the                     Commission of the European Communities (Agents: U. Wölker
Commission has improperly failed, in breach of the Treaty, to               et X. Lewis) — application for suspension of application, first,
take a decision on a complaint concerning alleged infringe-                 of paragraphs 17 and 19 of the Framework Agreement of
ments of Articles 81 and 82 EC — the Court of First Instance                5 July 2000 on Relations between the European Parliament
(Second Chamber), composed of: A.W.H. Meij, President, and                  and the Commission and, second, Annex 3 to that Framework
A. Potocki and J. Pirrung, Judges; H. Jung, Registrar, made an              Agreement, the President of the Court of First Instance has
order on 10 January 2001, the operative part of which is as                 made an order on 15 January 2001, the operative part of
follows:                                                                    which is as follows:
1.    There is no need to adjudicate on the present action.
                                                                            1.    The application for interim relief is dismissed;
2.    The parties are to bear their own costs.
                                                                            2.    The decision as to costs is reserved.
( 1) OJ C 247 of 26.8.2000.


title: Joined Cases T-366/03 and T-235/04: Judgment of the Court of First Instance of  5 October 2005  — Land Oberösterreich and Austria v Commission (Approximation of laws — National provisions derogating from a harmonisation measure — Ban on the use of genetically modified organisms in Upper Austria — Conditions for application of Article 95(5) EC)

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/22

         Judgment of the Court of First Instance of 5 October 2005 — Land Oberösterreich and Austria v Commission
   (Joined Cases T-366/03 and T-235/04) (1)

   (Approximation of laws - National provisions derogating from a harmonisation measure - Ban on the use of genetically modified organisms in Upper Austria - Conditions for application of Article 95(5) EC)
   (2005/C 296/46)
   Language of the case: German
   Parties

      Applicant(s): Land Oberösterreich (represented by: F. Mittendorfer, lawyer) and Republic of Austria (represented by: H. Hauer and H. Dossi, Agents)

      Defendant(s): Commission of the European Communities (represented by: M. Patakia and U. Wölker, Agents)
   Application for
   annulment of Commission Decision 2003/653/EC of 2 September 2003 relating to national provisions on banning the use of genetically modified organisms in the region of Upper Austria notified by the Republic of Austria pursuant to Article 95(5) of the EC Treaty (OJ 2003 L 230, p. 34)
   Operative part of the judgment
   The Court:

               1)

               Dismisses the actions;

               2)

               Orders the applicants to pay the costs.

      (1)  OJ C 35, 7.2.2004.


20 . 7 . 96           EN                  Official Journal of the European Communities                                No C 210/23
Action brought on 22 May 1996 by Garage Massol SARL                  The applicant contends, in particular, that, according to
  against the Commission of the European Communities                 settled case-law, the Commission is obliged to investigate
                        ( Case T-77/96 )                             every complaint referred to it and that, contrary to that
                                                                     case-law, it has failed either to respond to the formal notice
                          ( 96/C 210/52 )                            served by the applicant or to investigate its complaint.
                                                                     Furthermore, it has refused to communicate details of the
                 (Language of the case: French)                      inquiry carried out into the affairs of Automobiles Peugeot
                                                                     and/or PSA, thereby negating results obtained at the expense
                                                                     of European taxpayers and robbing the principle of
An action against the Commission of the European                     subsidiarity of all practical effect.
Communities was brought before the Court of First
Instance of the European Communities on 22 May 1996 by               In a different connection, the applicant contends that to
Garage Massol SARL, established at Frejairolles ( France ),          refuse to undertake an analysis of the agreement and of the
represented by Jean Louis Portolano, of the                          contractual practices engaged in by Peugeot, on the pretext
Aix-en-Provence Bar, with an address for service in
                                                                     that the Commission was already examining a similar case
Luxembourg at the Chambers of Roy Nathan, of Nathan &                in the course of its inquiries , amounts to an infringement of
Noesen, 18 rue des Glacis .
                                                                     Article 155 of the Treaty, which confers on the Commission
                                                                     responsibility for ensuring compliance with the Treaty
The applicant claims that the Court should :                         provisions . Such a refusal to investigate the complaint is all
                                                                     the more irregular since the Commission enjoys sole power,
— declare that the Commission has failed to act in relation          under Council Regulation No 17, to determine breaches of
     to complaints lodged by Massol SARL,                            the competition rules and has exclusive competence to
                                                                     define which individual matters or categories are to be
— annual the decision implicitly rejecting the complaints            exempt pursuant to Article 85 ( 3 ) of the Treaty .
     and the decision refusing to communicate the replies of
     Automobiles Peugeot and/or PSA,                                 In addition, the Commission's refusal to communicate its
                                                                     correspondence with Automobiles Peugeot and/or the PSA
— find that the Commission has incurred non-contractual
                                                                     group must be regarded as contrary to the right to a fair
                                                                     hearing, the principle of audi alteram partem and the
     liability and order it to make good the damage suffered         established right of an applicant to seek judicial review of
     by Massol SARL in the annual sum of up to ECU                   express decisions of the Commission .
     180 000 from 25 May 1994,
— order the Commission to pay the costs, including a
     contribution of up to FF 100 000 in respect of lawyers '
     fees .
Pleas in law and main arguments                                            Removal from the register of Case T-109/95 ( )
                                                                                ( 96/C 210/53 )
The applicant, a garage marketing Peugeot vehicles in
France outside the network of concessionaires within the                            (Language of the case: English)
PSA group, objects to the Commission's failure to act on the
complaint lodged by it against the system set up by that
group . On the basis of that dealership system, the accredited       By order of 23 April 1996 , the President of the Fourth
concessionaires are opposing, collectively and in concert,           Chamber of the Court of First Instance of the European
the activities of resellers who are not accredited by the            Communities ordered the removal from the register of
manufacturer, contending that the activities of independent          Case T-109/95 : X v . Commission of the European
                                                                     Communities .
resellers are illegal under Regulation ( EEC ) No 123/85 .
Concurrently, and with a view to reserving to themselves the
business of supplying and reselling new Peugeot vehicles,            (') OJ No C 174 , 8 . 7 . 199 5 .
PSA and the distributors within its network have claimed
that their dealership agreements are legal, on the ground
that, according to them, those agreements fulfil the various
exemption criteria laid down by that Regulation .
The reason given for the Commission's refusal to investigate
the complaint was that it was not for the Commission to                    Removal from the register of Case T-157/95 ( )
assume the role assigned to the national courts, before                                        ( 96/C 210/54 )
which proceedings between the applicant and several
dealers are already pending, and that the complaint in
question did not touch on issues of Community interest,
                                                                                (Language of tbe case: Englisb)
since the Commission was already investigating a particular
case calling in question the conditions or practices alluded to       By order of 25 April 1996 , the President of the First
 by it.                                                               Chamber ( Extended Composition ) of the Court of First


title: Appeal brought on 21 May 1997 by Intertronic F. Cornelis GmbH against the order made on 19 February 1997 by the Third Chamber of the Court of First Instance of the European Communities in Case T-117/96 between Intertronic F. Cornelis GmbH and the Commission of the European Communities (Case C-196/97 P)

text:
No C 212/20              EN                  Official Journal of the European Communities                                       12 . 7. 97
Communities, represented by Paolo Stancanelli, of its                   3.   refer the action back to the Court of First Instance for
Legal Service, acting as Agent, with an address for service                  determination on the merits;
in Luxembourg at the office of Carlos Gomez de la Cruz,
also of its Legal Service, Wagner Centre, Kirchberg.                    4 . order the Commission to pay the costs of the
                                                                             interlocutory dispute .
The applicant claims that the Court should :
                                                                        Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt and notify within the
      prescribed period the provisions necessary to transpose
      into its domestic legal system Council Directive 91/              The contested order states, contrary to the appellant's
      676/EEC of 12 December 1991 concerning the                        express intention, that the real object of the appellant's
      protection of waters against pollution caused by                  action was a declaration that the Federal Republic of
      nitrates from agricultural sources ('), and in particular         Germany has infringed the Treaty through the case-law
      by failing to comply with the obligation laid down in             of its courts, and that the appellant has thereby suffered
      Article 3 ( 2 ) of that Directive, the Italian Republic has       loss . That reinterpretation is factually unjustified and
      failed to fulfil its obligations under Community law,             procedurally inadmissible .
— order the Italian Republic to pay the costs of the
      proceedings.
Pleas in law and main arguments adduced in support:
                                                                        Reference for a preliminary ruling by the Liverpool
                                                                        Industrial Tribunal, by order of that court of 28 April
 Article 189 of the EC Treaty, which provides that a                    1997, in the case of Donna Marie Davies against
 Directive is binding, as to the result to be achieved, upon                                          Girobank pic
 each Member State to which it is addressed, implies an
 obligation on Member States to respect the time limits for                                        ( Case C-197/97)
 transposition laid down in Directives . That time limit                                             ( 97/C 212/38 )
 passed without the Italian Republic having adopted the
 measures necessary to comply with the Directive referred
 to in the form of order sought by the Commission.                      Reference has been made to the Court of Justice of the
                                                                        European Communities by an order of the Liverpool
 0 ) OJ No L 375 , 31 . 12 . 1991 , p . 1 .                             Industrial Tribunal of 28 April 1997, which was received
                                                                         at the Court Registry on 23 May 1997, for a preliminary
                                                                         ruling in the case of Donna Marie Davies against
                                                                         Girobank pic, on the following questions :
                                                                         1 . Are all or any of the following contractual provisions
 Appeal brought on 21 May 1997 by Intertronic F.                              contrary to the principle of equal pay for equal work
 Cornelis GmbH against the order made on 19 February                          under Article 119 of the EC Treaty so far as they
  1997 by the Third Chamber of the Court of First Instance                    affect a woman who has returned to work after taking
 of the European Communities in Case T- 11 7/96 between                       maternity leave to which she was entitled:
 Intertronic F. Cornelis GmbH and the Commission of the
                       European Communities                                   ( a ) a provision whereby entitlement to a pension
                          ( Case C-196/97 P)                                         ( under a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                             ( 97/C 212/37 )                                         representing pensionable service, where that
                                                                                pensionable service does not accrue during any
  An appeal against the order made on 19 February 1997                               period of unpaid leave (which term includes a
  by the Third Chamber of the Court of First Instance of the                         period of unpaid maternity leave when the woman
  European Communities in Case T-l 17/96 between                                     is no longer in receipt of the contractual or
  Intertronic F. Cornelis GmbH and the Commission of the                             statutory maternity pay ) when the employee does
  European Communities was brought before the Court of                               not pay contributions into the employer's
  Justice of the European Communities on 21 May 1997 by                              contributory pension scheme ;
  Intertronic F. Cornelis GmbH, Emden ( Germany ),
  represented by Detlef Schumacher and Wilhelm Wiltfang,                       ( b ) a practice whereby entitlement to a pension ( under
  Rechtsanwalte, Bremen.                                                              a final salary pension scheme ) is calculated
                                                                                according to a formula which includes a factor
                                                                                representing final pensionable salary, which means
  The appellant claims that the Court should:
                                                                                whichever is the greater of ( i ) the amount of the
                                                                                employee's pensionable salary paid during the
   1.  set aside the order of the Court of First Instance                             period of 12 months ending on the last day of her
       (Third Chamber ) of 19 February 1997;                                          employment, and ( ii ) the highest amount of
                                                                                pensionable salary received by the employee during
  2 . declare the action admissible;                                                  any one of the last five complete tax years before


title: Action brought on 26 February 1996 by the Kingdom of Belgium against the Commission of the European Communities (Case C-58/96)

text:
13 . 4 . 96           EN                     Official Journal of the European Communities                                  No C 108/7
Action brought on 26 February 1996 by the Kingdom                       Pleas in law and main arguments adduced in support:
of Belgium against the Commission of the European
                           Communities                                  The pleas in law and main arguments are the same as those
                        ( Case C-58/96                                  in Case C-407/95 ( 2 ).
                          ( 96/C 108/ 12 )
                                                                        (') OJ 1996 L 20 , p. 17.
                                                                        ( 2 ) OJ 1996 C 46 , p. 11 .
An action against the Commission of the European
Communities was brought before the Court of Justice of the
European Communities on 26 February 1996 by the
Kingdom of Belgium, represented by J. Devadder, Director
of Administration in the Ministry of Foreign Affairs ,
Foreign Trade and Development Aid , with an address for                         Removal from the register of Case C-390/93 ( )
service in Luxembourg at the Belgian Embassy, 4 Rue des
Girondins .                                                                                ( 96/C 108/ 13 )
The applicant claims that the Court should annul                        By order of 17 January 1996 the President of the Court of
Commission Regulation ( EC ) No 127/96 of 25 January                    Justice of the European Communities ordered the removal
1996 on the exceptional allocation of a quantity additional             from the register of Case C-390/93 : Commission of the
to the tariff quota for imports of bananas during the first             European Communities v . Kingdom of Spain .
quarter of 1996 as a result of tropical storms Iris, Luis and
Marilyn ( ] ) and order the Commission to pay the costs .               (') OJ No C 261 , 25 . 9 . 1993 .
                                                       COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                 2 , orders each party to bear its own costs, including the
                     of 27 February 1996                                       costs relating to the application for interim measures.
      in Case T-235/94 : Roberto Galtieri v. European
                            Parliament ( 1 )                             (') OJ No 202 , 23 . 7 . 1994 .
 (Officials — Household allowance — Recovery of undue
payment — Misuse ofpowers — Legitimate expectations —
                              Damages)
                           ( 96/C 108/14 )
                                                                          JUDGMENT OF THE COURT OF FIRST INSTANCE
                (Language of the case: French)
                                                                                of 28 February 1996
                                                                                in Case T-294/94 : Konstantinos Dimitriadis
                                                                             v. Court of Auditors of the European Communities (')
 In Case T-235/94, Roberto Galtieri, temporary agent of the
 European Parliament, residing in Brussels, represented by                (Officials — Duty to provide assistance — Article 24 of the
 Harold Wouters, of the Brussels Bar, with an address for                                  Staff Regulations of Officials)
 service in Luxembourg at the Chambers of Bertrand                                                   ( 96/C 108 / 15 )
 Assoignons, 8 Rue des Girondins, v . European Parliament
 ( Agents : Manfred Peter and Kieran Bradley ) — application
 for, first, the annulment of the decision of the European                                 (Language of the case: Greek)
 Parliament, notified by letter of 19 January 1994, to recover
 sums unduly paid to the applicant by way of household                    In Case T-294/94, Konstantinos Dimitriadis, a former
 allowance , secondly, an order that the Parliament reimburse             official of the Court of Auditors of the European
 the sums deducted from his monthly salary and, thirdly, an               Communities, residing in Luxembourg, represented by
 order that the Parliament pay damages and default interest,              Markos Papazissis, of the Thessaloniki Bar, with an address
 the Court of First Instance ( First Chamber ), composed of               for service at the applicant's address, 4a Boulevard
  A. Saggio, President, and V. Tiili and R. M. Moura-Ramos,                Grande-Duchesse Charlotte, v . Court of Auditors of the
 Judges; B. Pastor, Administrator, for the Registrar, has given            European Communities ( Agents : Jean-Marie Steiner,
  a judgment on 27 February in which it:                                   Christos Komninos and Paolo Giusta ) — application for,
                                                                           first, the annulment of Decisions Nos 8543 and 8912 of the
                                                                           Court of Auditors of 8 March and 1 July 1994, rejecting
  1 , dismisses the application;                                           respectively his request for assistance under the first


title: Case C-349/06: Judgment of the Court (Seventh Chamber) of 4 October 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Murat Polat v Stadt Rüsselsheim (EEC-Turkey Association Agreement — Article 59 of the Additional Protocol — First paragraph of Article 7 and Article 14 of Decision No 1/80 of the Association Council — Directive 2004/38/EC — Right of residence of a Turkish worker's child — Adult child who is no longer dependent on his parents — Numerous criminal convictions — Lawfulness of an expulsion order)

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/14

         Judgment of the Court (Seventh Chamber) of 4 October 2007 (reference for a preliminary ruling from the Verwaltungsgericht Darmstadt — Germany) — Murat Polat v Stadt Rüsselsheim
   (Case C-349/06) (1)

   (EEC-Turkey Association Agreement - Article 59 of the Additional Protocol - First paragraph of Article 7 and Article 14 of Decision No 1/80 of the Association Council - Directive 2004/38/EC - Right of residence of a Turkish worker's child - Adult child who is no longer dependent on his parents - Numerous criminal convictions - Lawfulness of an expulsion order)
   (2007/C 297/21)
   Language of the case: German
   Referring court
   Verwaltungsgericht Darmstadt
   Parties to the main proceedings

      Applicant: Murat Polat

      Defendant: Stadt Rüsselsheim
   Re:
   Preliminary ruling — Verwaltungsgericht Darmstadt — Interpretation of the second indent of the first sentence of Article 7 of Decision No 1/80 of the EEC/Turkey Association Council, of Article 59 of the Additional Protocol relating to the transitional phase provided for in the Agreement establishing an Association between the European Economic Community and Turkey, signed on 23 November 1970 (OJ 1977 L 361, p. 60), and of Article 28 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of residence of a Turkish national who entered the national territory as a minor by way of family reunification and who was financially independent after his majority — Return to the national territory in a position of financial dependence vis-à-vis his parents — Acquisition of the right of residence for adults financially dependent on their parents — Conditions under which the right of residence is lost — Criminal convictions — Lawfulness of a decision to expel.
   Operative part of the judgment

               1)

               A Turkish national, who was authorised while he was a child to enter the territory of a Member State in order to join his family and who has acquired the right of free access to any paid employment of his choice under the second indent of the first paragraph of Article 7 of Decision No 1/80 of 19 September 1980 on the development of the Association, adopted by the Association Council set up by the Association Agreement between the European Economic Community and Turkey, loses the right of residence in the host Member State which is a corollary of that right of free access only in two situations, that is:

                           —

                           in the circumstances provided for in Article 14(1) of that decision, or

                           —

                           if he leaves the territory of the Member State concerned for a significant length of time without legitimate reason,

                     even though he is over 21 years of age, is no longer dependent on his parents, but lives independently in the Member State concerned, and was not available to join the labour force for several years because he was during that period serving an unsuspended sentence of imprisonment.
               Such an interpretation is not inconsistent with the requirements of Article 59 of the Additional Protocol signed at Brussels on 23 November 1970 and concluded, approved and confirmed on behalf of the Community by Council Regulation (EEC) No 2760/72 of 19 December 1972;

               2)

               Article 14(1) of Decision No 1/80 must be interpreted as not precluding the taking of an expulsion measure against a Turkish national who has been the subject of several criminal convictions, provided that his behaviour constitutes a genuine and sufficiently serious threat to a fundamental interest of society. It is for the national court to determine whether that is the case in the main proceedings.

      (1)  OJ C 281, 18.11.2006.


title: Action brought on 28 July 1997 by the Commission of the European Communities against the Federal Republic of Germany (Case C-272/97)

text:
6 . 9 . 97                EN                     Official Journal of the European Communities                                      C 271 / 11
legislation must necessarily be ensured by the Municipality                 gericht Niedersachsen ( Higher Labour Court of Lower
itself, which must proceed to announce the requisite                        Saxony ) of 8 November 1996, which were received at the
tendering procedures, or whether it may also be ensured                     Court Registry on 24 July 1997, for preliminary rulings in
by the concessionaire, to which the relevant powers are                     the cases of Deutsche Post AG v. Elisabeth Sievers ( Case
transferred; finally, if it should be considered that                       C-270/97) and Deutsche Post AG v. Brunhilde Schrage
compliance with that obligation may also be ensured by                      ( Case C-271/97) on the following questions:
the concessionaire, it is necessary to ascertain whether the
latter has the option of choosing whether to manage the
                                                                            1 . ( a ) Does Community law require precedence of
service itself or whether it must necessarily entrust it to
                                                                                application or validity ( under the second
third parties.
                                                                                paragraph of Article 5 and Article 189 of the EC
                                                                                Treaty ) over national provisions of the Member
( 1 ) Council Directive 92/50/EEC of 18 June 1992, relating to the                     States which could or would be applicable, by way
      coordination of procedures for the award of public service                       of concurrence of claims, to the same factual
      contracts, OJ L 209 , 24 . 7. 1992, p. 1 .
                                                                                situation and with the same aim of supporting
                                                                                claims to equal treatment in occupational pension
                                                                                schemes, as for example in Germany — generally
                                                                                — the employment law principle of equal
                                                                                treatment or — specifically — Paragraph 2 ( 1 ) of
                                                                                the Beschaftigungsforderungsgesetz ( Employment
Reference for a preliminary ruling by the Cour Superieure                              Promotion Law ) 1985 ?
de Justice ( High Court of Justice ) of the Grand Duchy of
Luxembourg by judgment of that court of 26 June 1997                             ( b ) Does the precedence of Community law in such a
in the case of Eric Coursier v. Fortis Bank and Martine                                conflict, where Community law confers benefits
                         Coursier, nee Bellami                                         under occupational pension schemes only if and in
                           ( Case C-267/97 )                                           so far as they are attributable to periods of
                                                                                employment prior to 17 May 1990, whereas the
                             ( 97/C 271/ 17)                                           national provisions regulate the same factual
                                                                                situation differently in that they do not exclude
                                                                                retroactive effect, apply generally ?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Cour                                     ( c ) Does such precedence exist only if the economic
Superieure de Justice of the Grand Duchy of Luxembourg                                 objective of Article 119, which exists alongside the
of 26 June 1997, received at the Court Registry on 22 July                             social objective, namely the creation of equal
1997, for a preliminary ruling in the case of Eric Coursier                            competitive opportunities, is specifically affected ?
v. Fortis Bank and Martine Coursier, nee Bellami, on the
following question:
                                                                            2 . Does at least the principle, to be regarded as part of
                                                                                Community law, that national law is to be interpreted
Does a judgment delivered in the State of origin in the                          in a Community manner consistent with EC law,
context of a court-supervised liquidation — a matter                             require national provisions on equal treatment with
which is excluded from the scope of the Brussels                                 respect to benefits from occupational pension schemes
Convention — and which is not open to recognition under                          to be interpreted and applied in harmony with the
the national law of the State in which enforcement is                            requirements and limitations ( prohibition of
sought, but which, in the State in which it was given,                           retroactive effect) of Community law ?
confers on one of the parties immunity from execution of
the judgment whose enforcement is sought, affect the
quality of enforceability which, according to the first
paragraph of Article 31 of the Convention, a judgment
must possess in order to be recognized and enforced ?
                                                                            Action brought on 28 July 1997 by the Commission of the
                                                                            European Communities against the Federal Republic of
                                                                                Germany
                                                                                Case C-272/97 )
Reference for a preliminary ruling from the                                                             97/C 271 / 19
Landesarbeitsgericht Niedersachsen by orders of that court
of 8 November 1996 in the cases of Deutsche Post AG v.
         ( 1 ) Elisabeth Sievers and (2 ) Brunhilde Schrage                 An action against the Federal Republic of Germany was
                   ( Cases C-270/97 and C-271/97 )
                                                                            brought before the Court of Justice of the European
                                                                            Communities on 28 July 1997 by the Commission of the
                               97/C 271 / 18 )                              European Communities, represented by Antonio Caeiro
                                                                            and Jiirgen Grunwald, of its Legal Service, with an
                                                                            address for service in Luxembourg at the office of Carlos
Reference has been made to the Court of Justice of the                      Gomez de la Cruz, also of its Legal Service, Wagner
European Communities by orders of the Landesarbeits                         Centre, Kirchberg.
 ---pagebreak--- C 271 / 12            I EN I                Official Journal of the European Communities                                      6 . 9 . 97
The applicant claims that the Court should:                            a loan agreement with Coal Products Ltd ('the
                                                                       Defendants') according to which the Applicant, acting
1 . declare that, by failing to implement within the                   pursuant to Article 54 of the ECSC Treaty, agreed to lend
    prescribed period all measures necessary to comply                 £10 million to the Defendants with a view to promoting
    with Council Directive 90/605/EEC (') of 8 November                the consumption of coal produced within the Community.
     1990 amending Directive 78/660/EEC on annual                      An interest rebate was also granted by the agreement.
    accounts and Directive 83/349/EEC on consolidated
    accounts as regards the scope of those Directives, the             The rebate was fixed as the sterling equivalent of ECU
    Federal Republic of Germany has failed to fulfil its               1 875 420 . However, this sum was to be adjusted
    obligations under the EC Treaty;                                   according to the quantity of Community coal actually
                                                                       consumed . The interest rebate was calculated on the basis
2 . order the Federal Republic of Germany to pay the                   that the Defendants would consume 350 000 tonnes per
    costs .                                                            annum of ECSC coal over a 5-year period commencing on
                                                                       28 May 1993 .
Pleas in law and main arguments adduced in support:
                                                                       The loan was due to be repaid in one instalment on
The binding nature of directives in accordance with the                28 May 1997. However a management and employee
third paragraph of Article 189 and the first paragraph of              buy-out of Coal Products Ltd took place on 30 January
Article 5 of the EC Treaty means that Member States to                 1995 and the loan was repaid on 3 February 1995 .
which a directive is addressed are obliged to achieve the
objectives therein specified within the prescribed period.
Such period expired on 1 January 1993 , without Germany                The dispute between the parties relates to only one issue :
taking all necessary internal measures to implement the                the starting date of the period for assessing the quantities
directive .                                                            of coal consumed by the Defendants .
(') OJ L 317, 16 . 11 . 1990, p . 60 .
                                                                       The Commission takes the view that the starting date is
                                                                       28 May 1993 . The Defendants seek to show that the loan
                                                                       agreement was varied in accordance with an offer
                                                                       purportedly made in a letter from the Commission dated
                                                                       23 January 1995 . By requesting coal consumption figures
                                                                       for the 'three years immediately preceding the date of
Action brought on 29 July 1997 by the Commission of the                transfer to the MEBO ' ( i.e. 30 January 1995 ), the
      European Communities against Coal Products Ltd                   Commission is said to have offered to bring the starting
                          ( Case C-274/97 )                            date of the assessment back to 28 May 1992 . The
                                                                       Defendants argue that they accepted the Commission's
                            ( 97/C 271 /20                             offer by their letters of 30 January and 20 March 1995 .
                                                                       Accordingly, they argue that the starting date for the
An action against Coal Products Ltd of Mill Lane,                      assessment period set down in the loan agreement was
Wingerworth, Chesterfield, Derbyshire S42 6NG, England                 varied by the mutual consent of the parties.
was brought before the Court of Justice of the European
Communities on 29 July 1997 by the Commission of the                   The Commission submits that the exchange of letters
European Communities, represented by Messrs Peter                      between the Commission and Coal Products Ltd could
Oliver and Barry Doherty, members of the Legal Service,                only be relied upon as changing the initial contract if ( i )
acting as Agents, with an address for service in                       there were clear words doing so or ( ii ) there was a clear
Luxembourg at the office of Mr Carlos Gomez de la Cruz,                indication of the parties' intention to do so. The
a member of its Legal Service, Centre Wagner, Kirchberg.               Commission never had any such intention.
The Applicant claims that the Court should:
                                                                       The Applicant submits that the Defendants' claim is
                                                                       wholly untenable for the following reasons :
— order the Defendants to pay:
     ( 1 ) the sum of ECU 252 558 ;                                    ( i ) By a mere request for figures, the Commission's letter
                                                                               of 23 January 1995 could not, on any reasonable
     ( 2 ) interest on that sum at 8 % from 3 February 1995,                   construction, be taken as suggesting that the starting
           being the date on which the debt became due;                        date for the assessment period set out in the loan
                                                                               agreement be amended;
     ( 3 ) the costs of the present proceedings.
                                                                        ( ii ) Even on the extreme hypothesis that the loan
Pleas in law and main arguments adduced in support:                            agreement could theoretically have been amended by
                                                                               such a request for information, in the instant case the
On 21 May 1992 the European Coal and Steel Community,                          period referred to by the Commission was plainly the
represented by the Commission ('the Applicant'), concluded                     result of a mistake on its part;


title: Judgment of the Court (Sixth Chamber) of 11 December 2003 in Case C-127/00 (Reference for a preliminary ruling from the Bundesgerichtshof): Hässle AB v Ratiopharm GmbH (Council Regulation (EEC) No 1768/92 — Medicinal products — Supplementary protection certificate — Articles 15 and 19 — Validity of Article 19 — Concept of "first authorisation to place … on the market in the Community" — Legal effects of non-compliance with the relevant date referred to in Article 19)

text:
21.2.2004                EN                           Official Journal of the European Union                                                  C 47/1
                                                                           I
                                                                    (Information)
                                                       COURT OF JUSTICE
                                                                COURT OF JUSTICE
                 JUDGMENT OF THE COURT                                              the Community’ in Article 19(1) of Regulation No 1768/92
                                                                                refers solely to the first authorisation required under provisions
                          (Sixth Chamber)                                           on medicinal products, within the meaning of Council Directive
                                                                                65/65/EEC of 26 January 1965 on the approximation of
                       of 11 December 2003                                          provisions laid down by law, regulation or administrative action
                                                                                relating to proprietary medicinal products, granted in any of the
in Case C-127/00 (Reference for a preliminary ruling                                Member States, and does not therefore refer to authorisations
from the Bundesgerichtshof): Hässle AB v Ratiopharm                                 required under legislation on pricing of or reimbursement for
                               GmbH (1)                                             medicinal products.
(Council Regulation (EEC) No 1768/92 — Medicinal prod-                        3.    A supplementary protection certificate which, contrary to the
ucts — Supplementary protection certificate — Articles 15                           requirements of Article 19 of Regulation No 1768/92, has
and 19 — Validity of Article 19 — Concept of ‘first                                 been delivered where the first marketing authorisation in the
authorisation to place ... on the market in the Community’                          Community was obtained prior to the relevant date fixed by
— Legal effects of non-compliance with the relevant date                            that provision is invalid pursuant to Article 15 thereof.
                      referred to in Article 19)
                                                                              (1) OJ C 163 of 10.6.2002.
                           (2004/C 47/01)
                    (Language of the case: German)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                                               JUDGMENT OF THE COURT
                                                                                of 13 January 2004
In Case C-127/00: Reference to the Court under Article 234
EC by the Bundesgerichtshof (Germany) for a preliminary                       in Case C-440/00 (Reference for a preliminary ruling from
ruling in the proceedings pending before that court between                   the Bundesarbeitsgericht ): Gesamtbetriebsrat der Kühne
Hässle AB and Ratiopharm GmbH, on the interpretation of                        & Nagel AG & Co. KG v Kühne & Nagel AG & Co. KG (1)
Articles 15 and 19 of Council Regulation (EEC) No 1768/92
of 18 June 1992 concerning the creation of a supplementary                    (Social policy — Articles 4 and 11 of Directive 94/45/EC —
protection certificate for medicinal products (OJ 1992 L 182,                 European Works Councils — Informing and consulting
p. 1), the Court (Sixth Chamber), composed of: V. Skouris,                    employees in Community-scale undertakings — Group of
acting for the President of the Chamber, C. Gulmann,                          undertakings whose central management is not located in a
J.N. Cunha Rodrigues, R. Schintgen and F. Macken (Rappor-                                                  Member State)
teur), Judges; C. Stix-Hackl, Advocate General; D. Louterman-
Hubeau, Head of Division, for the Registrar, has given a                                                  (2004/C 47/02)
judgment on 11 December 2003, in which it has ruled:
                                                                                (Language of the case: German)
1.    Consideration of the second question referred has disclosed no
      factor capable of affecting the validity of Article 19 of Council
      Regulation (EEC) No 1768/92 of 18 June 1992 concerning                  (Provisional translation; the definitive translation will be published
      the creation of a supplementary protection certificate for                                   in the European Court Reports)
      medicinal products.
2.    So far as concerns medicinal products for human use, the                In Case C-440/00: Reference to the Court under Article 234
      concept of ‘first authorisation to place ... on the market ... in       EC by the Bundesarbeitsgericht (Germany) for a preliminary


title: Case T-105/05: Judgment of the Court of First Instance of 12 June 2007 — Assembled Investments (Proprietary) v OHIM — Waterford Wedgwood (WATERFORD STELLENBOSCH) (Community trade mark — Opposition proceedings — Application for the figurative Community mark WATERFORD STELLENBOSCH — Earlier Community word mark WATERFORD — Relative ground for refusal — No likelihood of confusion — Absence of similarity between the goods — Absence of complementarity — Article 8(1)(b) of Regulation (EC) No 40/94)

text:
               21.7.2007

               EN

               Official Journal of the European Union

               C 170/22

         Judgment of the Court of First Instance of 12 June 2007 — Assembled Investments (Proprietary) v OHIM — Waterford Wedgwood (WATERFORD STELLENBOSCH)
   (Case T-105/05) (1)

   (Community trade mark - Opposition proceedings - Application for the figurative Community mark WATERFORD STELLENBOSCH - Earlier Community word mark WATERFORD - Relative ground for refusal - No likelihood of confusion - Absence of similarity between the goods - Absence of complementarity - Article 8(1)(b) of Regulation (EC) No 40/94)
   (2007/C 170/41)
   Language of the case: English
   Parties

      Applicant: Assembled Investments (Proprietary) Ltd (Stellenbosch, South Africa) (represented by: P. Hagmann and S. Ziegler, Lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the Court of First Instance: Waterford Wedgwood plc (Waterford, Ireland) (represented by: K. Manhaeve, Lawyer)
   Re:
   Action brought against the decision of the First Board of Appeal of OHIM of 15 December 2004 (Case R 240/2004-1) relating to opposition proceedings between Waterford Wedgwood and Assembled Investments (Proprietary) Ltd.
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the First Board of Appeal of OHIM of 15 December 2004 (Case R 240/2004-1);

               2.

               Orders the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and Waterford Wedgwood plc to pay, in addition to their own costs, the costs incurred by the applicant.

      (1)  OJ C 115, 14.5.2005.


title: Case T-388/06: Action brought on 20 December 2006 — Inter-IKEA v OHIM (representation of a pallet)

text:
               27.1.2007

               EN

               Official Journal of the European Union

               C 20/35

         Action brought on 20 December 2006 — Inter-IKEA v OHIM (representation of a pallet)
   (Case T-388/06)
   (2007/C 20/53)
   Language of the case: English
   Parties

      Applicant: Inter-IKEA Systems BV (Delft, Netherlands) (represented by: J. Gulliksson, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Form of order sought

               —

               Annul the decision of the First Board of Appeal of 26 September 2006 in Case R 354/2006-1;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Community trade mark concerned: Figurative mark representing a pallet consisting of an elongated rectangular platform or base and an equally elongated flange, ornamented with round holes, which are both at a 90 degree angle to each other, for goods and services in classes 6, 7, 16, 20, 35, 39 et 42 — application No 4 073 731

      Decision of the examiner: Refusal of the application

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Violation of Article 7(1)(b) of Council Regulation No 40/94 as the trade mark is sufficiently distinctive to be registered.


title: Case T-58/13: Judgment of the General Court of 8 January 2015  — Club Hotel Loutraki and Others v Commission (State aid — Operation of Video Lottery Terminals — Grant by the Hellenic Republic of an exclusive licence — Decision finding no State aid — Failure to initiate the formal investigation procedure — Serious difficulties — Procedural rights of the interested parties — Obligation to state reasons — Right to effective judicial protection — Advantage — Joint assessment of the notified measures)

text:
               16.2.2015

               EN

               Official Journal of the European Union

               C 56/15

         Judgment of the General Court of 8 January 2015 — Club Hotel Loutraki and Others v Commission
   (Case T-58/13) (1)

   ((State aid - Operation of Video Lottery Terminals - Grant by the Hellenic Republic of an exclusive licence - Decision finding no State aid - Failure to initiate the formal investigation procedure - Serious difficulties - Procedural rights of the interested parties - Obligation to state reasons - Right to effective judicial protection - Advantage - Joint assessment of the notified measures))
   (2015/C 056/19)
   Language of the case: English

      Parties

      Applicants: Club Hotel Loutraki AE (Loutraki, Greece); Vivere Entertainment AE (Athens, Greece); Theros International Gaming, Inc. (Patra, Greece); Elliniko Casino Kerkyras (Athens); Casino Rodos (Rhodes, Greece); Porto Carras AE (Alimos, Greece); Kazino Aigaiou AE (Syros, Greece) (represented by: S. Pappas, lawyer)

      Defendant: European Commission (represented by: M. Afonso and P.-J. Loewenthal, acting as Agents)

      Interveners in support of the defendant: Hellenic Republic (represented by: E.-M. Mamouna and K. Boskovits, acting as Agents); and Organismos Prognostikon Agonon Podosfairou AE (OPAP) (Athens, Greece) (represented: initially by K. Fountoukakos-Kyriakakos, Solicitor, L. Van den Hende and M. Sánchez Rydelski, lawyers, and subsequently by M. Petite and A. Tomtsis, lawyers)

      Re:

   Application for annulment of Commission Decision C(2012) 6777 final of 3 October 2012 on State aid SA.33  988 (2011/N) — Greece — Arrangements for the extension of OPAP’s exclusive right to operate 13 games of chance and the granting of an exclusive licence to operate 35  000 Video Lottery Terminals for a period of 10 years.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Club Hotel Loutraki AE, Vivere Entertainment AE, Theros International Gaming, Inc., Elliniko Casino Kerkyras, Casino Rodos, Porto Carras AE and Kazino Aigaiou AE to bear their own costs and to pay those incurred by the European Commission and the Organismos Prognostikon Agonon Podosfairou AE (OPAP);

               3)

               Orders the Hellenic Republic to bear its own costs.

      (1)  OJ C 114, 20.4.2013.


title: Case C-224/12 P: Appeal brought on 11 May 2012 by the European Commission against the judgment delivered by the General Court (First Chamber) on 2 March 2012 in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/8

         Appeal brought on 11 May 2012 by the European Commission against the judgment delivered by the General Court (First Chamber) on 2 March 2012 in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission
   (Case C-224/12 P)
   2012/C 258/14
   Languages of the case: Dutch and English

      Parties

   Appellant: European Commission (represented by: L. Flynn, S. Noë and H. Van Vliet, Agents)
   Other parties to the proceedings:

               Kingdom of the Netherlands

               ING Groep NV

               De Nederlandsche Bank NV

      Form of order sought

               —

               Set aside the judgment of the General Court (First Chamber) of 2 March 2012, notified to the Commission on 6 March 2012, in Joined Cases T-29/10 and T-33/10 Netherlands and ING Groep v Commission; and

               —

               dismiss the applications for partial annulment of the decision of the European Commission (1) of 18 November 2009 on State aid C 10/09 (ex N 138/2009) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan;

               —

               order the applicants to pay the costs;

               —

               in the alternative,

                           —

                           refer the case back to the General Court for reconsideration;

                           —

                           reserve the costs of the proceedings at first instance and on appeal,
                           or, in the further alternative,

                           —

                           annul the third paragraph of Article 2 of the decision at issue;

               —

               order the applicants to pay the costs of the appeal.

      Pleas in law and main arguments

   The Commission maintains that the judgment under appeal should be set aside on the following grounds:

                     First
                  , there is no requirement in law to apply the market economy investor principle in relation to an amendment of repayment conditions for a measure that itself constituted State aid.

                     Second
                  , the General Court wrongly evaluated the loss of revenue to the Member State resulting from the modified repayment conditions examined in the Commission’s decision of 18 November 2009 on State aid C 10/09 (ex N 138/09) implemented by the Netherlands for ING’s Illiquid Assets Back-up Facility and Restructuring Plan (‘the decision at issue’).

                     Third
                  , even if the Commission was wrong to treat the modified repayment conditions as State aid, the General Court was not entitled to annul the first paragraph of Article 2 of the decision at issue in its entirety.

                     Fourth
                  , the General Court erred in law in finding that the second paragraph of Article 2 of the decision at issue was necessarily unlawful because the Commission had erred in finding that the modified repayment conditions constituted State aid.

                     Fifth
                  , the General Court ruled ultra petita in annulling the second paragraph of Article 2 of the decision at issue and Annex II thereto.

                     Sixth
                  , in the alternative, if the General Court was correct to annul the first and second paragraphs of Article 2 of the decision at issue and Annex II thereto, it also had to annul the third paragraph of Article 2 of the decision at issue.

      (1)  Decision 2010/608/EC (OJ 2010 L 274, p. 139).


title: Case C-323/09: Judgment of the Court (First Chamber) of 22 September 2011 (reference for a preliminary ruling from the High Court of Justice (England and Wales) (Chancery Division)) — Interflora Inc, Interflora British Unit v Marks & Spencer plc, Flowers Direct Online Ltd (Trade marks — Keyword advertising on the internet — Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation — Directive 89/104/EEC — Article 5(1)(a) and (2) — Regulation (EC) No 40/94 — Article 9(1)(a) and (c) — Condition that one of the trade mark’s functions be adversely affected — Detriment to the distinctive character of a trade mark with a reputation ( dilution ) — Unfair advantage taken of the distinctive character or repute of that trade mark ( free-riding ))

text:
               12.11.2011

               EN

               Official Journal of the European Union

               C 331/2

         Judgment of the Court (First Chamber) of 22 September 2011 (reference for a preliminary ruling from the High Court of Justice (England and Wales) (Chancery Division)) — Interflora Inc, Interflora British Unit v Marks & Spencer plc, Flowers Direct Online Ltd
   (Case C-323/09) (1)

   (Trade marks - Keyword advertising on the internet - Selection by the advertiser of a keyword corresponding to a competitor’s trade mark with a reputation - Directive 89/104/EEC - Article 5(1)(a) and (2) - Regulation (EC) No 40/94 - Article 9(1)(a) and (c) - Condition that one of the trade mark’s functions be adversely affected - Detriment to the distinctive character of a trade mark with a reputation (‘dilution’) - Unfair advantage taken of the distinctive character or repute of that trade mark (‘free-riding’))
   2011/C 331/03
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicants: Interflora Inc, Interflora British Unit

      Defendants: Marks & Spencer plc, Flowers Direct Online Ltd

      Re:

   Reference for a preliminary ruling — Interpretation of Article 5(1)(a) and (2) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1), Article 9(1)(a) and (c) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1) and Articles 12(1), 13(1) and 14(1) of Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1) — Meaning of ‘use’ of a mark — Registration by a trader with a service provider which operates an Internet search engine of a sign identical to a trade mark in order to have displayed automatically on the screen, following the entry of that sign as a search term, the URL of that trader’s website offering goods and services identical to those covered by the trade mark (‘AdWords’) — Flower delivery service

      Operative part of the judgment

               1.

               Article 5(1)(a) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks and Article 9(1)(a) of Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark must be interpreted as meaning that the proprietor of a trade mark is entitled to prevent a competitor from advertising — on the basis of a keyword which is identical with the trade mark and which has been selected in an internet referencing service by the competitor without the proprietor’s consent — goods or services identical with those for which that mark is registered, where that use is liable to have an adverse effect on one of the functions of the trade mark. Such use:

                           —

                           adversely affects the trade mark’s function of indicating origin where the advertising displayed on the basis of that keyword does not enable reasonably well-informed and reasonably observant internet users, or enables them only with difficulty, to ascertain whether the goods or services concerned by the advertisement originate from the proprietor of the trade mark or an undertaking economically linked to that proprietor or, on the contrary, originate from a third party;

                           —

                           does not adversely affect, in the context of an internet referencing service having the characteristics of the service at issue in the main proceedings, the trade mark’s advertising function; and

                           —

                           adversely affects the trade mark’s investment function if it substantially interferes with the proprietor’s use of its trade mark to acquire or preserve a reputation capable of attracting consumers and retaining their loyalty.

               2.

               Article 5(2) of Directive 89/104 and Article 9(1)(c) of Regulation No 40/94 must be interpreted as meaning that the proprietor of a trade mark with a reputation is entitled to prevent a competitor from advertising on the basis of a keyword corresponding to that trade mark, which the competitor has, without the proprietor’s consent, selected in an internet referencing service, where the competitor thereby takes unfair advantage of the distinctive character or repute of the trade mark (free-riding) or where the advertising is detrimental to that distinctive character (dilution) or to that repute (tarnishment).
               Advertising on the basis of such a keyword is detrimental to the distinctive character of a trade mark with a reputation (dilution) if, for example, it contributes to turning that trade mark into a generic term.
               By contrast, the proprietor of a trade mark with a reputation is not entitled to prevent, inter alia, advertisements displayed by competitors on the basis of keywords corresponding to that trade mark, which put forward — without offering a mere imitation of the goods or services of the proprietor of that trade mark, without causing dilution or tarnishment and without, moreover, adversely affecting the functions of the trade mark with a reputation — an alternative to the goods or services of the proprietor of that mark.

      (1)  OJ C 282, 21.11.2009.


title: Case C-141/06: Judgment of the Court (Sixth Chamber) of 19 April 2007 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directive 2002/65/EC — Financial services — Distance marketing — Failure to transpose within the prescribed period)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 96/16

         Judgment of the Court (Sixth Chamber) of 19 April 2007 — Commission of the European Communities v Kingdom of Spain
   (Case C-141/06) (1)

   (Failure of a Member State to fulfil obligations - Directive 2002/65/EC - Financial services - Distance marketing - Failure to transpose within the prescribed period)
   (2007/C 96/27)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: A. Aresu and R. Vidal Puig, Agents)

      Defendant: Kingdom of Spain (represented by: M.A. Sampol Pucurull, Agent)
   Re:
   Failure of a Member State to fulfil obligations — Failure to adopt, within the period prescribed, as regards financial services other than private insurance, the provisions necessary to comply with Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC (OJ 2002 L 271, p. 16)
   Operative part of the judgment
   The Court:

               1.

               Declares that, by failing to adopt, as regards financial services other than private insurance, the laws, regulations and administrative provisions necessary to comply with Directive 2002/65/EC of the European Parliament and of the Council of 23 September 2002 concerning the distance marketing of consumer financial services and amending Council Directive 90/619/EEC and Directives 97/7/EC and 98/27/EC, the Kingdom of Spain has failed to fulfil its obligations under that directive;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 121 of 20.5.2006.


title: Case C-618/13 P: Judgment of the Court (First Chamber) of 26 January 2017 — Zucchetti Rubinetteria SpA v European Commission (Appeal — Competition — Agreements, decisions and concerted practices — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Coordination of selling prices and exchange of sensitive business information — Regulation (EC) No 1/2003 — Article 23(2) — Ceiling of 10 % of turnover)

text:
               3.4.2017

               EN

               Official Journal of the European Union

               C 104/5

         Judgment of the Court (First Chamber) of 26 January 2017 — Zucchetti Rubinetteria SpA v European Commission
   (Case C-618/13 P) (1)

   ((Appeal - Competition - Agreements, decisions and concerted practices - Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria - Coordination of selling prices and exchange of sensitive business information - Regulation (EC) No 1/2003 - Article 23(2) - Ceiling of 10 % of turnover))
   (2017/C 104/07)
   Language of the case: Italian

      Parties

      Appellant: Zucchetti Rubinetteria SpA (represented by: M. Condinanzi, P. Ziotti and N. Vasile, avvocati)

      Other party to the proceedings: European Commission (represented by: L. Malferrari and F. Ronkes Agerbeek, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Zucchetti Rubinetteria SpA to pay the costs.

      (1)  OJ C 45, 15.2.2014.


title: Order of the Court of First Instance of 11 December 2001 in Case T-20/01 Maria Concetta Cerafogli and Others v European Central Bank (Amendment of the Staff Rules of the European Central Bank — Action for annulment — Inadmissibility)

text:
C 109/46                EN                      Official Journal of the European Communities                                     4.5.2002
represented by N. Lhoëst, lawyer, with an address for service              No 01/2000 and that the defendant is not empowered
in Luxembourg, v Council of the European Union (Agents:                    unilaterally to introduce amendments to the terms and con-
T. Blanchet and G. Ramos Ruano) — application for annulment                ditions of employment or Staff Rules into the contracts
of the Council’s decision of 13 August 1996 rejecting the                  between the applicants and itself, nor to enforce such amend-
applicant’s request for a review of his classification in grade —          ments, — the Court of First Instance (Third Chamber),
the Court of First Instance (First Chamber), composed of:                  composed of M. Jaeger, President, K. Lenaerts and J. Azizi,
B. Vesterdorf, President; N.J. Forwood and H. Legal, Judges;               Judges; Registrar: H. Jung, made an order on 11 December
H. Jung, Registrar, made an order on 11 December 2001, the                 2001, the operative part of which is as follows:
operative part of which is as follows:
1.    The application is dismissed as inadmissible;                        1.   The application is dismissed as inadmissible.
2.    The parties are ordered to bear their own costs.
                                                                           2.   The parties shall bear their own costs.
(1) OJ C 181 of 14.6.97.
                                                                           (1) OJ 2001 C 108.
      ORDER OF THE COURT OF FIRST INSTANCE
                      of 11 December 2001
in Case T-20/01 Maria Concetta Cerafogli and Others v
                    European Central Bank (1)                              Action brought on 18 December 2001 by Huntstown
                                                                           Air Park Limited and Omega Aviation Services Limited
                                                                             against the Commission of the European Communities
(Amendment of the Staff Rules of the European Central
      Bank — Action for annulment — Inadmissibility)
                                                                                (Case T-331/01)
                          (2002/C 109/92)
                                                                                (2002/C 109/93)
                   (Language of the case: German)
                                                                                (Language of the case: English)
In Case T-20/01, Maria Concetta Cerafogli, residing in Frank-
furt (Federal Republic of Germany), Monika Esch-Leonhardt,
residing in Frankfurt, Marco Luigi Fassetta, residing in Wiesba-
den (Federal Republic of Germany), Tillmann Frommhold,
residing in Karben (Federal Republic of Germany), Johannes                 An action against the Commission of the European Communi-
Priesemann, residing in Frankfurt and Marc van de Velde,                   ties was brought before the Court of First Instance of the
residing in Usingen (Federal Republic of Germany), represented             European Communities on 18 December 2001 by Huntstown
by N. Pflüger, R. Steiner and S. Mittländer, lawyers, with                 Air Park Limited and Omega Aviation Services Limited,
an address for service in Luxembourg, supported by the                     represented by Mr James O’Reilly, SC and Mr Charles A Kelly,
Organisation of Employees in European and International                    Solicitor of Douglas Kelly & Son, Swinford (Ireland).
Institutions in the Federal Republic of Germany (IPSO),
represented by B. Karthaus, M. Roth and C. Roth, lawyers, with
an address for service in Luxembourg, against European
Central Bank (Agents: C. Ziliolo, M. López Torres and B. Wäg-             The applicant claims that the Court should:
enbaur) — application for the annulment and/or a declaration
of inapplicability of Articles 7.2.0 and 8.1.0 of the Staff Rules,
Administrative Circular 01/2000 concerning Travel Expenses,                —    annul the second indent of Part 6 of the Commission’s
the gateway clause inserted into the applicants’ employment                     Decision no C(2001)2967 of 5 October 2001 concerning
contracts and the decision of the President of the ECB of                       State Aid NN 86/2001 — AER RIANTA — IRELAND;
27 November 2000 rejecting the applicants’ complaint, and
for a declaration that the ECB was required to consult the
personnel committee before adopting Administrative Circular                —    order the Commission to pay the applicant’s costs.


4.5.2002              EN               Official Journal of the European Communities                                   C 109/39
      Removal from the register of Case C-105/98 P (1)                   Removal from the register of Case C-295/99 (1)
                       (2002/C 109/66)                                                   (2002/C 109/69)
By order of 27 November 2001 the President of the Court of        By order of 12 October 2001 the President of the Court of
Justice of the European Communities ordered the removal           Justice of the European Communities ordered the removal
from the register of Case C-105/98 P: Günther Bühring v           from the register of Case C-295/99: Kingdom of Belgium v
Council of the European Union and Commission of the               Commission of the European Communities.
European Communities
                                                                  (1) OJ C 299 of 16.10.1999.
(1) OJ C 209 of 4.7.1998.
                                                                         Removal from the register of Case C-461/99 (1)
       Removal from the register of Case C-24/99 (1)
                                                                                (2002/C 109/70)
                       (2002/C 109/67)
                                                                  By order of 1 February 2002 the President of the Court of
By order of 18 February 2002 the President of the Court of        Justice of the European Communities ordered the removal
Justice of the European Communities ordered the removal           from the register of Case C-461/99: Commission of the
from the register of Case C-24/99: Commission of the              European Communities v Ireland.
European Communities v Federal Republic of Germany.
                                                                  (1) OJ C 47 of 19.2.2000.
(1) OJ C 86 of 27.3.1999.
                                                                         Removal from the register of Case C-77/00 (1)
       Removal from the register of Case C-140/99 (1)
                                                                                (2002/C 109/71)
                       (2002/C 109/68)
                                                                  By order of 6 December 2001 the President of the Court of
                                                                  Justice of the European Communities ordered the removal
By order of 6 December 2001 the President of the Court of         from the register of Case C-77/00 (Referral for a preliminary
Justice of the European Communities ordered the removal           ruling by the Arbeitsgericht Wiesbaden (Germany)): Urlaubs
from the register of Case C-140/99: Commission of the             — und Lohnausgleichskasse der Bauwirtschaft v Viscondense
European Communities v French Republic.                           Construçoes, Lda.
(1) OJ C 174 of 19.6.1999.                                        (1) OJ C 135 of 13.5.2000.


7.3.98               EN               Official Journal of the European Communities                                 C 72/15
      Removal from the register of Case C-286/97 (1)                    Removal from the register of Case C-26/95 (1)
                         (98/C 72/31)                                                     (98/C 72/34)
By order of 17 November 1997 the President of the Court          By order of 26 November 1997 the President of the Court
of Justice of the European Communities has ordered the           of Justice of the European Communities has ordered the
removal from the register of Case C-286/97: Commission           removal from the register of Case C-26/95 (reference for a
of the European Communities v. Portuguese Republic.              preliminary ruling from the Pretura Circondariale di
                                                                 Terni): Criminal proceedings against Ivana Rosi.
(1) OJ C 295, 27.9.1997.
                                                                 (1) OJ C 74, 25.3.1995.
      Removal from the register of Case C-141/97 (1)
                         (98/C 72/32)                                   Removal from the register of Case C-49/97 (1)
                                                                                (98/C 72/35)
By order of 20 November 1997 the President of the Court
of Justice of the European Communities has ordered the
removal from the register of Case C-141/97: Commission           By order of 1 December 1997 the President of the Court
of the European Communities v. Italian Republic.                 of Justice of the European Communities has ordered the
                                                                 removal from the register of Case C-49/97: Commission of
(1) OJ C 181, 14.6.1997.                                         the European Communities v. French Republic.
                                                                 (1) OJ C 108, 5.4.1997.
       Removal from the register of Case C-88/97 (1)
                         (98/C 72/33)
                                                                       Removal from the register of Case C-227/97 (1)
                                                                                (98/C 72/36)
By order of 24 November 1997 the President of the Court
of Justice of the European Communities has ordered the
removal from the register of Case C-88/97: Commission of         By order of 1 December 1997 the President of the Court
the European Communities v. Portuguese Republic.                 of Justice of the European Communities has ordered the
                                                                 removal from the register of Case C-227/97: Commission
(1) OJ C 108, 5.4.1997.                                          of the European Communities v. Portuguese Republic.
                                                                 (1) OJ C 228, 26.7.1997.