title: Judgment of the Court (Second Chamber) of 8 November 2001 in Case C-228/99 (reference for a preliminary ruling from the Tribunale civile e penale di Cagliari): Silos e Mangimi Martini SpA v Ministero delle Finanze (Agriculture — Common organisation of the markets — Export refunds — Withdrawal — Interpretation and validity of Regulations (EC) Nos 1521/95 and 1576/95 — Failure to state reasons)

text:
C 3/6                    EN                       Official Journal of the European Communities                                           5.1.2002
                 JUDGMENT OF THE COURT                                                        JUDGMENT OF THE COURT
                           (Fifth Chamber)                                                            (Second Chamber)
                        of 8 November 2001                                                           of 8 November 2001
in Case C-143/99 (reference for a preliminary ruling from                    in Case C-228/99 (reference for a preliminary ruling from
the Verfassungsgerichtshof): Adria-Wien Pipeline GmbH,                       the Tribunale civile e penale di Cagliari): Silos e Mangimi
and Wietersdorfer & Peggauer Zementwerke GmbH v                                         Martini SpA v Ministero delle Finanze (1)
             Finanzlandesdirektion für Kärnten (1)
                                                                             (Agriculture — Common organisation of the markets —
(Tax on energy — Rebate granted only to undertakings                         Export refunds — Withdrawal — Interpretation and validity
               manufacturing goods — State aid)                              of Regulations (EC) Nos 1521/95 and 1576/95 — Failure
                                                                                to state reasons)
                            (2002/C 3/08)
                                                                                (2002/C 3/09)
                   (Language of the case: German)
                                                                                (Language of the case: Italian)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)                           (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
In Case C-143/99: reference to the Court under Article 177 of
the EC Treaty (now Article 234 EC) from the Verfassungsge-                   In Case C-228/99: reference to the Court under Article 234
richtshof (Constitutional Court) (Austria) for a preliminary                 EC from the Tribunale civile e penale di Cagliari (Italy) for a
ruling in the proceedings pending before that court between                  preliminary ruling in the proceedings pending before that
Adria-Wien Pipeline GmbH and Wietersdorfer & Peggauer                        court between Silos e Mangimi Martini SpA and Ministero delle
Zementwerke GmbH and Finanzlandesdirektion für Kärnten                       Finanze — on the interpretation and validity of Commission
— on the interpretation of Article 92 of the EC Treaty (now,                 Regulations (EC) Nos 1521/95 of 29 June 1995 and 1576/95
after amendment, Article 87 EC) — the Court, composed of:                    of 30 June 1995 fixing the export refunds on cereal-based
P. Jann, President of the Chamber, A. La Pergola, L. Sevón,                 compound feedingstuffs (OJ 1995 L 147, p. 65, and OJ 1995
M. Wathelet (Rapporteur), and C.W.A. Timmermans, Judges;                     L 150, p. 64) — the Court, composed of: N. Colneric, President
J. Mischo, Advocate General; H.A. Rühl, Principal Adminis-                   of the Chamber, R. Schintgen (Rapporteur) and V. Skouris,
trator, for the Registrar, has given a judgment on 8 November                Judges; L.A. Geelhoed, Advocate General; L. Hewlett, Adminis-
2001, in which it has ruled:                                                 trator, for the Registrar, has given a judgment on 8 November
                                                                             2001, in which it has ruled:
1.    National measures which provide for a rebate of energy taxes
      on natural gas and electricity do not constitute State aid within      1.    Commission Regulation (EC) No 1521/95 of 29 June
      the meaning of Article 92 of the EC Treaty (now, after                       1995 fixing the export refunds on cereal-based compound
      amendment, Article 87 EC) where they apply to all undertakings               feedingstuffs applied to the exports for which the competent
      in national territory, regardless of their activity.                         customs service accepted, on the date of its publication, export
                                                                                declarations stating that an export refund was going to be
                                                                                claimed and for which advance fixing of the export refund had
2.    National measures which provide for a rebate of energy taxes                 not been requested.
      on natural gas and electricity only in the case of undertakings
      whose activity is shown to consist primarily in the manufacture
      of goods must be regarded as State aid within the meaning of           2.    Commission Regulation (EC) No 1576/95 of 30 June
      Article 92 of the Treaty.                                                    1995 fixing the export refunds on cereal-based compound
                                                                                feedingstuffs did not revoke Regulation No 1521/95 and
                                                                                therefore had no effect on the applicability of the latter
                                                                                regulation on 30 June 1995.
(1) OJ C 188 of 3.7.1999.
                                                                             3.    Commission Regulation No 1521/95 does not satisfy the
                                                                                requirement to state reasons laid down in Article 190 of the
                                                                                EC Treaty (now Article 253 EC) and is therefore invalid.
 ---pagebreak--- 5.1.2002               EN                     Official Journal of the European Communities                                                 C 3/7
4.    As a result of the invalidity of Commission Regulation             M. Wathelet and V. Skouris (Presidents of Chambers),
      No 1521/95, the export refunds for cereal-based feedingstuffs,     D.A.O. Edward, J.P. Puissochet, P. Jann, L. Sevón, R. Schintgen
      for which the application was made in export declarations          and F. Macken, Judges; S. Alber, Advocate General; H. von
      accepted by the competent customs service on 30 June 1995          Holstein, Deputy Registrar, has given a judgment on 27 Sep-
      and for which advance fixing had not been requested, are to be     tember 2001, the operative part of which is as follows:
      calculated in accordance with Commission Regulation (EC)
      No 1415/95 of 22 June 1995 fixing the export refunds on
      cereal-based compound feedingstuffs.                               1.   Article 45(1) of the Europe Agreement establishing an associ-
                                                                              ation between the European Communities and their Member
                                                                              States, of the one part, and the Republic of Bulgaria, of the
                                                                              other part, concluded and approved on behalf of the Community
(1) OJ C 246 of 28.8.1999.                                                    by Decision 94/908/ECSC, EC, Euratom of the Council and
                                                                              the Commission of 19 December 1994, is to be construed as
                                                                              establishing, within the scope of application of that Agreement,
                                                                              a precise and unconditional principle which is sufficiently
                                                                              operational to be applied by a national court and which is
                                                                              therefore capable of governing the legal position of individuals.
                                                                              The direct effect which that provision must therefore be
                                                                              recognised as having means that Bulgarian nationals relying
                                                                              on it have the right to invoke it before the courts of the host
                                                                              Member State, notwithstanding the fact that the authorities of
                                                                              that State remain competent to apply to those nationals their
                 JUDGMENT OF THE COURT                                        own national laws and regulations regarding entry, stay and
                                                                              establishment, in accordance with Article 59(1) of that
                                                                              Agreement.
                     of 27 September 2001
                                                                         2.   The right of establishment, as defined by Article 45(1) of the
in Case C-235/99 (reference for a preliminary ruling from                     above Association Agreement, means that rights of entry and
the High Court of Justice of England and Wales, Queen’s                       residence, as corollaries of the right of establishment, are
Bench Division (Divisional Court)): The Queen v Sec-                          conferred on Bulgarian nationals wishing to pursue activities of
retary of State for the Home Department, ex parte:                            an industrial or commercial character, activities of craftsmen, or
                 Eleonora Ivanova Kondova (1)                                 activities of the professions in a Member State. However, it
                                                                              follows from Article 59(1) of that Agreement that those rights
                                                                              of entry and residence are not absolute privileges, inasmuch as
(External relations — Association Agreement between the                       their exercise may, in some circumstances, be limited by the
Communities and Bulgaria — Freedom of establishment —                         rules of the host Member State governing the entry, stay and
Leave to enter fraudulently obtained — Obligation on a                        establishment of Bulgarian nationals.
Member State to pay compensation for damage caused to an
individual invoking a right of establishment which is directly
                                                                         3.   Articles 45(1) and 59(1) of the above Association Agreement,
          effective under the Association Agreement)
                                                                              read together, do not in principle preclude a system of prior
                                                                              control which makes the issue by the competent immigration
                          (2002/C 3/10)                                       authorities of leave to enter and remain subject to the condition
                                                                              that the applicant must show that he genuinely intends to take
                                                                              up an activity as a self-employed person without at the same
                   (Language of the case: English)                            time entering into employment or having recourse to public
                                                                              funds, and that he possesses, from the outset, sufficient financial
                                                                              resources and has reasonable chances of success. Substantive
                                                                              requirements such as those set out in paragraphs 217 and 219
                                                                              of the United Kingdom Immigration Rules (House of Commons
                                                                              Paper 395) have as their very purpose to enable the competent
In Case C-235/99: reference to the Court under Article 234                    authorities to carry out such checks and are appropriate for
EC from the High Court of Justice of England and Wales,
                                                                              achieving such a purpose.
Queen’s Bench Division (Divisional Court), for a preliminary
ruling in the proceedings pending before that court between
The Queen and Secretary of State for the Home Department,                4.   Article 59(1) of the above Association Agreement must be
ex parte: Eleanora Ivanova Kondova — on the interpretation                    construed as meaning that the competent authorities of the host
of Articles 45 and 59 of the Europe Agreement establishing                    Member State may reject an application made pursuant to
an association between the European Communities and their                     Article 45(1) of that Agreement on the sole ground that, when
Member States, of the one part, and the Republic of Bulgaria,                 that application was submitted, the Bulgarian national was
of the other part, concluded and approved on behalf of the                    residing illegally within the territory of that State because of
Community by Decision 94/908/ECSC, EC, Euratom of the                         false representations made to those authorities or non-disclosure
Council and the Commission of 19 December 1994 (OJ 1994                       of material facts for the purpose of obtaining initial leave to
L 358, p. 1) — the Court, composed of: G.C. Rodrı́guez                        enter that Member State on a different basis. Consequently,
Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),                  those authorities may require that national to submit, in due


title: Action brought on 15 October 1998 by Anastasios Bisopoulos against the Commission of the European Communities (Case T-168/98)

text:
19.12.98             EN                 Official Journal of the European Communities                                 C 397/31
Louis, Thierry Demaseure and Ariane Tornel, of the                 tender to the defendant for the Project entitled FD RUS
Brussels Bar, with an address for service in Luxembourg at         9603 which concerned adapting Russian beef and dairy
the Office of Fiduciaire Myson SARL, 30 Rue de                     cattle farming to restructuring and which was worth ECU
Cessange, against Commission of the European                       3,7 million. Under the tendering procedure there were two
Communities (Agent: Ana Maria Alves Vieira) Ð                      rounds of evaluation to assess the shortlisted tenderers. In
application for suspension of operation of the                     the first round the applicant's tender was placed first,
Commission's decision of 18 January 1995 removing the              whereas in the second round it was only awarded second
applicant from his post as a disciplinary sanction Ð the           place.
President of the Court of First Instance made an order on
21 October 1998, the operative part of which is as
follows:
                                                                   The applicant was informed of the outcome of the second
                                                                   round of the tendering procedure, which is contested in
There is no need to adjudicate on the application for              this application, by letter of 26 June 1998. That letter
interim measures.                                                  stated that the applicant's tender was unsuccessful because
                                                                   it was inferior to the successful tender in terms of the
                                                                   experience of its team and its financial offer. However, in
                                                                   the tendering procedure as a whole there were serious
                                                                   breaches by the defendant and by the winning tenderer in
                                                                   the second round of the principle of fair competition on
                                                                   which every invitation to tender is based, with the result
Action brought by ADT Projekt Gesellschaft der
                                                                   that the award of the contract for this project must be
Arbeitsgemeinschaft Deutscher Tierzüchter mbH against
                                                                   annulled.
the Commission of the European Communities, received
by the Registry of the Court of Justice on 11 September
1998 and transmitted to the Court of First Instance
pursuant to the first paragraph of Article 47 of the EC
               Statute of the Court of Justice
                      (Case T-145/98)
                       (98/C 397/61)                               Action brought on 15 October 1998 by Anastasios
                                                                   Bisopoulos against the Commission of the European
              (Language of the case: German)                                               Communities
                                                                                (Case T-168/98)
An action against the Commission of the European
Communities was brought before the Court of First                                         (98/C 397/62)
Instance of the European Communities on 11 September
1998 by ADT Projekt Gesellschaft der Arbeitsgemeinschaft
Deutscher Tierzüchter mbH, Bonn (FRG), represented by                             (Language of the case: French)
Andreas Hansen, Rechtsanwalt, with an address for
service at Uelzener Straûe 8, Bienenbüttel (FRG).
                                                                   An action against the Commission of the European
The applicant claims that the Court should:                        Communities was brought before the Court of First
                                                                   Instance of the European Communities on 15 October
1.   declare that the decision of the defendant of 26 June         1998 by Anastasios Bisopoulos, residing in Brussels,
    1998, notified to the applicant on 6 July 1998, is             represented by Eric Boigelot, of the Brussels Bar, with an
    unlawful,                                                      address for service in Luxembourg at the Chambers of
                                                                   Louis Schiltz, 2 Rue du Fort Rheinsheim.
2. declare further that the defendant is bound to award
    the contract to carry out Project No FD RUS 9603 to
    the applicant,                                                 The applicant claims that the Court should:
3. Order the defendant to pay to the applicant the sum
    of DEM 550 000 by way of damages,                              Ð annul the decision of the appointing authority of
                                                                       12 February 1998, which took effect on 16 February
                                                                       1998 and was communicated to the applicant on
4. in the alternative, order the defendant to pay to the               27 February 1998, inasmuch as it classifies the
    applicant the sum of DEM 225 250 by way of
                                                                       applicant in grade A 5, step 5, which seniority in step
    damages.
                                                                       as from 1 May 1997;
Pleas in law and main arguments adduced in support:
                                                                   Ð annul the implicit decision rejecting the complaint of
The applicant, which operates a successful livestock                   25 May 1998, registered on 27 May 1998 under
consultancy throughout Eastern Europe, submitted a                     number R492/98;
 ---pagebreak--- C 397/32             EN                 Official Journal of the European Communities                                    19.12.98
Ð in so far as may be necessary, annul the implicit                The applicant claims that the Court should:
     rejection of the applicant's request, registered on
     27 May 1998, to be classified in grade A 4 with
     additional seniority in step in accordance with the           Ð declare unlawful the procedure to be followed in the
     Staff Regulations;                                                event of absence because of sickness, in force in the
                                                                       Council since 18 September 1997;
Ð order the defendant to pay the costs in any event.
                                                                   Ð annul the Council's decision to regard the applicant's
                                                                       absence from 9 to 22 February 1998 as unauthorised
Pleas in law and main arguments adduced in support:                    and to deduct that absence from her annual leave;
                                                                   Ð order the defendant to pay the costs.
The applicant maintains that, by appointing him to grade
A 5, step 5, instead of grade A 4 with additional seniority
in step, the appointing authority failed to take into              Pleas in law and main arguments adduced in support:
account his professional experience and specialist skills; it
omitted to undertake any real examination of the
applicant's situation and thereby infringed the second             The applicant submits, first, that the defendant failed to
paragraph of Article 5(1), Article 5(3), the second                comply in the present case with the procedure to be
paragraph of Article 25 and Articles 31 and 32 of the              followed in the event of absence because of sickness or
Staff Regulations, as well as Annex I thereto.                     accident' which it itself introduced and brought to the
                                                                   notice of staff by Communication No 117/97 of
                                                                   18 September 1997.
In addition, the contested decisions in breach of the 1983
decision concerning the criteria applicable to appointment
in grade and classification in step on recruitment as              She further contests the lawfulness of that implementing
amended on 7 February 1986.                                        provision, in that it provides, in the event of a dispute
                                                                   concerning the conclusions of the medical examination,
                                                                   for an arbitration procedure' which disregards the rights
Furthermore, the appointing authority is required by               of defence of the person concerned, since it does not allow
general principles to apply equal treatment to the                 him to designate the doctor of his choice to safeguard his
situations of officials and to take administrative decisions       rights and interests by his presence.
which are based on proper grounds, that is to say, not
vitiated by manifest errors of law or of fact.
                                                                   In the applicant's opinion, where the administration has
                                                                   before it such a dispute, it is obliged to refer the matter to
Finally, the applicant pleads breach of the principle of the       an invalidity committee, in accordance with Article 59(3)
protection of legitimate expectations and misuse of                of the Staff Regulations.
powers.
                                                                   The applicant submits, finally, that the contested decisions
                                                                   lack any statement of reasons.
Action brought on 15 October 1998 by Maria Adelina
    Biasutto against the Council of the European Union
                       (Case T-171/98)                             Action brought on 26 October 1998 by Zino Davidoff SA
                                                                   and Davidoff and Cie SA against the European Parliament
                        (98/C 397/63)                                        and the Council of the European Union
                                                                                (Case T-177/98)
               (Language of the case: French)                                              (98/C 397/64)
An action against the Commission of the European                                 (Language of the case: German)
Communities was brought before the Court of First
Instance of the European Communities on 15 October
1998 by Maria Adelina Biasutto, residing in Brussels,              An action against the European Parliament and the
represented by Jean-NoeÈl Louis and FrancËoise Parmentier,         Council of the European Union was brought before the
of the Brussels Bar, with an address for service in                Court of First Instance of the European Communities on
Luxembourg at the Office of Fiduciaire Myson SARL, 30              26 October 1998 by Zino Davidoff SA and Davidoff and
Rue de Cessange.                                                   Cie SA, of Fribourg and Geneva (Switzerland), represented


title: Order of the Court of First Instance of 8 June 2005 in Case T-299/03 Nuova fabbrica utensili diamantati Srl (Nuova Fa. U. Di) v Commission of the European Communities (Action for annulment — Access to documents — Regulation (EC) No 1049/2001 — No disclosure of a document originating from a Member State without the prior consent of that State)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/20

      ORDER OF THE COURT OF FIRST INSTANCE

   of 8 June 2005
   in Case T-299/03 Nuova fabbrica utensili diamantati Srl (Nuova Fa. U. Di) v Commission of the European Communities (1)

   (Action for annulment - Access to documents - Regulation (EC) No 1049/2001 - No disclosure of a document originating from a Member State without the prior consent of that State)
   (2005/C 229/43)
   Language of the case: Italian
   In Case T-299/03: Nuova fabbrica utensili diamantati Srl (Nuova Fa. U. Di), established in Marcellina (Italy), represented by M. Calabrese, lawyer, against Commission of the European Communities (agents: V. Di Bucci and P. Aalto, with A. Abate, lawyer, with an address for service in Luxembourg) — application for annulment of the Commission's decision refusing the applicant access to certain documents relating to a State aid scheme declared compatible with the common market by Commission decision of 12 July 2000 (SG (2000) D/105754 — State Aid N 715/99) — the Court of First Instance (Fifth Chamber), composed of M. Vilaras, President, F. Dehousse and D. Sváby, Judges; H. Jung, Registrar, made an order on 8 June 2005, the operative part of which is as follows:

               1.

               The action is dismissed;

               2.

               Each party is to bear its own costs.

      (1)  OJ C 264 of 1.11.2003.


20150731067617172015/C 270/568212014TC27020150817EN01ENINFO_JUDICIAL20150619424215Case T-821/14: Order of the General Court of 19 June 2015 — Pollo Delta di Scabin Giancarlo e C. v Commission
 ---documentbreak--- C2702015EN4250120150619EN0056425421Order of the General Court of 19 June 2015 — Pollo Delta di Scabin Giancarlo e C. v Commission
   (Case T-821/14) (
         1
      )2015/C 270/56Language of the case: ItalianThe President of the Fifth Chamber has ordered that the case be removed from the register.
   (
         1
      )	OJ C 65, 23.2.2015.


title: Case T-281/04: Action brought on 9 July 2004 by Paola Staboli against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/34

         Action brought on 9 July 2004 by Paola Staboli against the Commission of the European Communities
   (Case T-281/04)
   (2004/C 262/65)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 9 July 2004 Paola Staboli, residing in Saint-Gilles (Belgium), represented by L. Vogel, lawyer.
   The applicant claims that the Court should:

               —

               annul the decisions of the appointing authority of 12 March 2004 and 6 April 2004 rejecting the applicant's complaint of 29 August 2003 whereby she criticised a decision of 9 May 2003 refusing to allow her, as part of a training programme, to take part in two conferences given in Melbourne and Perth between 26 June and 5 July 2003 and also refusing to grant her training leave for that purpose;

               —

               so far as may be necessary, also annul the abovementioned decision of 9 May 2003, adopted by the Director-General of the Commission's translation service;

               —

               order the Commission to pay the sum of EUR 5,000 by way of damages and interest;

               —

               order the defendant to pay the costs of the proceedings.

         Pleas in law and main arguments
   The applicant challenges the appointing authority's decision refusing her request for training leave in order to participate, as a speaker, in conferences given in Melbourne and Perth, in Australia, between 26 June and 5 July 2003.
   In support of her claims, the applicant alleges:

               —

               Breach of the third paragraph of Article 24 of the Staff Regulations, of the decision adopted by the College of Commissioners on 7 May 2002, and in particular of Articles 1, 2 and 3 thereof, and also of the decision approving the applicant's training schedule for 2003, in that the request for training leave in question was refused on the ground that the it related solely to activities connected with her personal development whereas, first, her training schedule for the year 2003 referred expressly to it under the head of training and, furthermore, one of the objectives of officials' permanent training is specifically to ensure their personal development and their involvement in the enhancement of the reputation and excellence of the Commission.

               —

               Breach of the principle of non-discrimination, and also the existence in the present case of a manifest error of assessment, in that the appointing authority refuses to accept that the topic dealt with at the conferences in question (literature in the middle ages, and more particularly the works of Dante) comes within the applicant's continuous training, whereas the subject is directly connected with her activities within the translation service and, moreover, training leave is regularly granted to other officials for comparable activities.


title: Case T-2/11: Judgment of the General Court of 7 June 2013 — Portugal v Commission (EAGGF — ‘Guarantee’ Section — EAGF and EAFRD — Expenditure excluded from financing — Expenditure incurred in connection with the POSEI measure (financial years 2005, 2006 and 2007))

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/65

         Judgment of the General Court of 7 June 2013 — Portugal v Commission
   (Case T-2/11) (1)

   (EAGGF - ‘Guarantee’ Section - EAGF and EAFRD - Expenditure excluded from financing - Expenditure incurred in connection with the POSEI measure (financial years 2005, 2006 and 2007))
   2013/C 225/144
   Language of the case: Portuguese

      Parties

      Applicant: Portuguese Republic (represented by: L. Inez Fernandes, M. Figueiredo and J. Saraiva de Almeida, Agents)

      Defendant: European Commission (represented by: P. Guerra e Andrade and P. Rossi, Agents)

      Re:

   Application for annulment of Commission Decision 2010/668/EU of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2010 L 288, p. 24), in so far as it applies a financial correction to the Portuguese Republic in connection with the POSEI measure in respect of the 2005 to 2007 financial years, for a total amount of EUR 743 251,25.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision 2010/668/EU of 4 November 2010 excluding from European Union financing certain expenditure incurred by the Member States under the Guarantee Section of the European Agricultural Guidance and Guarantee Fund (EAGGF), under the European Agricultural Guarantee Fund (EAGF) and under the European Agricultural Fund for Rural Development (EAFRD) (OJ 2010 L 288, p. 24), in so far as it applies to the Portuguese Republic a financial correction in connection with the POSEI measure in respect of the 2006 and 2007 financial years;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the parties to bear their own costs.

      (1)  OJ C 89, 19.3.2011.


title: Case C-366/13: Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 1 July 2013 — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Commerzbank AG

text:
               7.9.2013

               EN

               Official Journal of the European Union

               C 260/30

         Request for a preliminary ruling from the Corte suprema di cassazione (Italy) lodged on 1 July 2013 — Profit Investment Sim SpA, in liquidation v Stefano Ossi and Commerzbank AG
   (Case C-366/13)
   2013/C 260/55
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Appellant: Profit Investment Sim SpA, in liquidation

      Respondents: Stefano Ossi, Commerzbank AG

      Questions referred

               1.

               Can the connecting link between different actions referred to in Article 6(1) of Regulation No 44/2001 (1) be said to exist where the subject-matter of the heads of claim put forward in those actions and the basis for the pleas in law raised therein are different and there is no relationship between them of subordination or logical and legal incompatibility, but the upholding of one of those actions is nonetheless potentially capable, in practice, of affecting the extent of the interest on the grounds of which the other action has been brought?

               2.

               Can the requirement that the agreement conferring jurisdiction be in written form, as laid down in Article 23(1)(a) of Regulation No 44/2001, be said to be satisfied where such an agreement is inserted into the document (Information Memorandum) that has been created unilaterally by a bond issuer, with the effect that the prorogation of jurisdiction is made applicable to disputes involving any future purchaser concerning the validity of those bonds? If not, can it be said that the insertion of that agreement into the document governing a bond issue which is intended for cross-border movement corresponds to a form which accords with usages in international trade or commerce within the terms of Article 23(1)(c) of that regulation?

               3.

               Should the expression ‘matters relating to a contract’, as used in Article 5(1) of Regulation No 44/2001, be understood to refer only to disputes in which the applicant intends to assert before the court the binding legal relationship arising from the contract and to disputes which are closely linked to that relationship, or must it be extended so as also to include disputes in which the applicant, far from invoking the contract, disputes the existence of a legally valid and binding contractual relationship and seeks to obtain a refund of the amount paid on the basis of a document which, in its view, is bereft of legal value?

      (1)  Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).


title: Case T-344/15 R: Order of the President of the General Court of 1 September 2015 — France v Commission (Application for interim measures — Access to documents of the institutions — Regulation (EC) No 1049/2001 — Documents sent by the French authorities to the Commission in accordance with the procedure laid down in Directive 98/34/EC — France’s objection to disclosure of the documents — Decision to grant a third party access to the documents — Application for suspension of operation — Urgency — Prima facie case — Weighing up of interests)

text:
               19.10.2015

               EN

               Official Journal of the European Union

               C 346/30

         Order of the President of the General Court of 1 September 2015 — France v Commission
   (Case T-344/15 R)
   ((Application for interim measures - Access to documents of the institutions - Regulation (EC) No 1049/2001 - Documents sent by the French authorities to the Commission in accordance with the procedure laid down in Directive 98/34/EC - France’s objection to disclosure of the documents - Decision to grant a third party access to the documents - Application for suspension of operation - Urgency - Prima facie case - Weighing up of interests))
   (2015/C 346/36)
   Language of the case: French

      Parties

      Applicant: French Republic (represented by: F. Alabrune, G. de Bergues, D. Colas and F. Fize, acting as Agents)

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

      Re:

   Application to suspend operation of Decision GESTDEM 2014/6064 of 21 April 2015 concerning a confirmatory application for access pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001, regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43), by which the Commission granted access to two documents emanating from the French authorities which had been sent to the Commission in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services (OJ 1998 L 204, p. 37).

      Operative part of the order

               1.

               The operation of European Commission decision GESTDEM 2014/6064 of 21 April 2015 concerning a confirmatory application for access pursuant to Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001, regarding public access to European Parliament, Council and Commission documents, by which the Commission granted access to two documents emanating from the French authorities which had been sent to the Commission in accordance with the procedure laid down in Directive 98/34/EC of the European Parliament and of the Council of 22 June 1998 laying down a procedure for the provision of information in the field of technical standards and regulations and of rules on Information Society services, is suspended.

               2.

               Costs are reserved.


               8.1.2005

               EN

               Official Journal of the European Union

               C 6/32

         Removal from the register of Case C-118/04 (1)

   (2005/C 6/63)

      (Language of the case: Italian)

   By order of 6 July 2004 the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-118/04: Commission of the European Communities v Italian Republic.

      (1)  OJ C 106 of 30.4.2004.


title: Case C-227/05: Order of the Court of  6 April 2006  (reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München- Germany) — Daniel Halbritter v Freistaat Bayern, represented by the Landesanwaltschaft Bayern (First subparagraph of Article 104(3) of the Rules of Procedure — Directive 91/439/EEC — Mutual recognition of driving licences — Confiscation of driving licence in one Member State accompanied by temporary ban on acquiring a new licence — Licence issued in another Member State after the expiry of the temporary ban — Recognition and exchange of that licence in the first Member State — Presentation of a report on aptitude to drive required by national law)

text:
               29.7.2006

               EN

               Official Journal of the European Union

               C 178/13

         Order of the Court of 6 April 2006 (reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München- Germany) — Daniel Halbritter v Freistaat Bayern, represented by the Landesanwaltschaft Bayern
   (Case C-227/05) (1)

   (First subparagraph of Article 104(3) of the Rules of Procedure - Directive 91/439/EEC - Mutual recognition of driving licences - Confiscation of driving licence in one Member State accompanied by temporary ban on acquiring a new licence - Licence issued in another Member State after the expiry of the temporary ban - Recognition and exchange of that licence in the first Member State - Presentation of a report on aptitude to drive required by national law)
   (2006/C 178/22)
   Language of the case: German
   National court
   Bayerisches Verwaltungsgericht München
   Parties

      Applicant: Daniel Halbritter

      Defendant: Freistaat Bayern (represented by the Landesanwaltschaft Bayern)
   Re:
   Reference for a preliminary ruling — Bayerisches Verwaltungsgericht München — Interpretation of Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences (OJ 1991 L 237, p. 1) — Refusal to recognise the validity or the exchange of a driving licence issued, after the expiry of the temporary ban, by another Member State, against a holder whose national driving licence had been confiscated for driving under the influence of narcotics — Duty to take aptitude tests
   Operative part of the order

               1.

               The combined provisions of Article 1(2) and Article 8(2) and (4) of Council Directive 91/439/EEC of 29 July 1991 on driving licences, as amended by Council Directive 97/26/EC of 2 June 1997, preclude a Member State from refusing to recognise, within its territory, the right to drive conferred by a driving licence issued in another Member State and, accordingly, the validity of that licence, on the ground that the holder of that licence, whose licence had previously been confiscated within the territory of the first Member State, did not take the test for aptitude to drive required by the law of that State in order for a new licence to be supplied following the confiscation of the previous licence, where the temporary ban on obtaining a new licence imposed at the same time as that confiscation had expired when the driving licence was supplied in the other Member State;

               2.

               The combined provisions of Article 1(1) and Article 8(2) and (4) of Council Directive 91/439, as amended by Council Directive 97/26, preclude a Member State, which has received a request, in circumstances such as those in the present case, to exchange a valid driving licence supplied in another Member State for a national driving licence, from making such an exchange subject to the condition that the applicant take a new test of his aptitude to drive, required by the law of the first Member State in order to remove any doubts in that regard by reason of circumstances predating the acquisition of the licence in the other Member State.

      (1)  OJ C 182, 23.7.2005.


title: Case T-360/07 P: Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-24/06 Abarca Montiel and Others v Commission

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/31

         Appeal brought on 19 September 2007 by Commission of the European Communities against the judgment of the Civil Service Tribunal delivered on 5 July 2007 in Case F-24/06 Abarca Montiel and Others v Commission

   (Case T-360/07 P)
   (2007/C 283/58)
   Language of the case: French
   Parties

      Appellant: Commission of the European Communities (represented by D. Martin and L. Lozano Palacios, Agents)

      Other parties to the proceedings: S. Abarca Montiel (Wauthier-Braine, Belgium), K. Adams (Wavre, Belgium), M. Alvarez y Bejerano (Sint-Pieters-Leeuw, Belgium), C. Baesens (Brussels, Belgium), C. Blancke (Brussels, Belgium), V. Bruneel (Kampenhout, Belgium), G. Butera (Rebecq, Belgium), C. Clarie (Denderhoutem, Belgium), G. Gallo (Zellik-Asse, Belgium), C. Gilis (Ganshoren, Belgium), I. Gillard (Gingelom, Belgium), C. Kremer (Laeken, Belgium), D. Maris (Schaerbeek, Belgium), M. Menacho y Sanchez (Zellik-Asse, Belgium), R. Thiry (Herstal, Belgium), S. Timmermans (Brussels, Belgium), R. Tuts (Boutersem, Belgium), E. Tzikas (Anderlecht, Belgium), C. Van Droogenbroeck (Eghezee, Belgium), C. Willems (Liernu, Belgium)
   Form of order sought by the appellant

               —

               Set aside the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-24/06;

               —

               Refer the case back to the Civil Service Tribunal;

               —

               Reserve the costs;

               —

               In the alternative, set aside the judgment of the Civil Service Tribunal of 5 July 2007 in Case F-24/06 and, ruling itself on the dispute, allow the form of order sought by the defendant at first instance and, accordingly, dismiss the action in Case F-24/06; order the respondents to pay costs.

         Pleas in law and main arguments
   By judgment of 5 July 2007 delivered in Case F-24/06 Abarca Montiel and Others v Commission, the Civil Service Tribunal annulled the decisions by which the Commission fixed the classification and remuneration of the applicants under their contracts as members of the contract staff. The applicants, former salaried employees under Belgian law, were taken on as nursery attendants following a change in the conditions of employment of other servants of the Communities.
   The Commission's first plea in support of its appeal alleges an error of law by the Tribunal in so far as it failed to have proper regard for the scope of the principle of equality of treatment in its interpretation of the applicable provisions, in particular with regard to the approach followed by the Commission of including family allowances in the concept of remuneration.
   The second plea alleges infringement of the principle that reasons must be stated in so far as the Civil Service Tribunal failed to rule on the concept of remuneration.


title: Action brought on 18 November 1996 by Eric Banda against the Commission of the European Communities (Case T-184/96)

text:
22 . 2 . 97            EN I               Official Journal of the European Communities                                No C 54/23
— order the Economic and Social Committee to pay her:                 Action brought on 18 November 1996 by Eric Banda
                                                                         against the Commission of the European Communities
     — the difference in salary not received from the date                                     Case T-184/96 )
          on which the disciplinary measure was applied —                                       ( 97/C 54/38 )
          29 February 1996 — to the date of the Court's
          judgment in the present case,
                                                                                (Language of the case: French)
     — compound interest of 8 % as default interest for               An action against the Commission of the European
          the period referred to above, and                           Communities was brought before the Court of First
                                                                      Instance of the European Communities on 18 November
     — the costs incurred in the present proceedings.                 1996 by Eric Banda, residing in Malawi, represented by
                                                                      Marc-Albert Lucas, of the Liege Bar, with an address for
                                                                     service in Luxembourg at the Chambers of Evelyne Korn,
                                                                     21 rue de Nassau .
Pleas in law and main arguments adduced in support:
                                                                     The applicant claims that the Court should :
The applicant seeks annulment of the disciplinary measure
of relegation in step, restitution of the part of her salary
withheld and removal of all the other financial effects on           — annul the Commission's Decision No R532/95 by
                                                                           which it decided to invalidate the elections held on
her salary entailed by that measure. The procedure which
                                                                           12 December 1994 amongst the local staff serving
gave rise to that disciplinary measure was initiated as a
result of the applicant's written reply to the marginal note               within Geographical Region No 11 , and to reorganize
                                                                           the same,
in her staff report to the effect that she was on leave and
absent from her post. According to the applicant herself,
that reply contained a number of firmly-worded personal              — annul the Commission rules of 8 March 1990 entitled
statements concerning her assessor and at the same time                    'Transitional arrangements for the representation of
requested a reference to the appeal assessor.                              staff serving outside the Community', published in the
                                                                           Administrative Notices of 30 March 1990,
In support of her claims, the applicant relies in the first          — annul the regional elections held, pursuant to the
place on an alleged breach of a substantial procedural                     contested decision and on the basis of the contested
requirement during the administrative procedure, in that                   rules, between 4 and 15 November 1996 amongst the
she was not given a hearing before the disciplinary                        local staff serving within Geographical Region No 11 ,
procedure was initiated, contrary to the second paragraph
of Article 87 of the Staff Regulations.
                                                                     — order the Commission to pay the costs .
Secondly, the applicant claims that the appointing                   Pleas in law and main arguments adduced in support:
authority has misinterpreted Articles 12 and 21 of the
Staff Regulations and has misused its powers . She argues,
in that regard, that the sending of a personally-addressed           By the contested decision, the defendant institution
letter does not constitute a 'public expression of opinion '.        invalidated the election held for staff serving outside the
Nor can it be said that she took any action which might              Community in Geographical Region No 11 , and thus the
reflect on her position . In any event, she claims, the              election of the applicant, a local agent serving in the
opinions which she expressed in the letter in issue are              Commission 's Delegation in Malawi , and announced that
covered by the fundamental right of freedom of                       fresh elections of local representatives would be held
expression.                                                          amongst the local staff in the whole of that region, in
                                                                     order to prevent publication of the results in respect of
                                                                     other delegations from influencing the vote , which was
The applicant also considers that general principles                 held afresh only in the three delegations in issue
governing the European public service, such as the                   ( Mozambique, Namibia and Zambia ). The irregularities
principle of good management and sound administration,               occurring in those three zones allegedly consisted in the
and the interests of the service have been infringed .               use of incomplete ballot papers on which the applicant's
                                                                     name did not appear.
In the alternative, should it be found that she committed a          In support of his claims, the applicant maintains, first of
breach of the Staff Regulations and that a disciplinary              all , that there was no irregularity falsifying the result of
measure was legitimate, the applicant alleges that the               the ballot in the regional elections held in Mozambique,
measure imposed is disproportionate to the conduct                   Namibia and Zambia and in the other delegations within
concerned .                                                          Geographical Region No 11 . The applicant considers,
                                                                     moreover, that the contested decision infringes the fifth
                                                                     paragraph of Article 1 of Annex II to the Staff Regulations
                                                                     and breaches the principle of proportionality.
 ---pagebreak--- No C 54/24            EN                 Official Journal of the European Communities                                   22 . 2 . 97
The applicant observes in that regard that the results in           The applicants claim that the Court should :
the three elections in issue were not falsified, inasmuch as
they reflect the wishes of the electorate . The applicant
would have been elected in any event. Indeed , the                  — annul the decision of the Commission of which they
annulment of election results validly achieved in certain                were notified on 26 September 1996, on the ground
electoral districts by reason of irregularity in the results in          that it contains manifest errors in law and in fact,
other districts would have been permissible only on the
ground of a rule making the validity of the elections
conditional on a minimum proportion of votes being                  — hear and determine the dispute, settling the applicants '
validly cast and requiring a second ballot to be held .                  grievances, and declare that the VAG framework
According to the applicant, the abovementioned provision                 contract fails to meet the eligibility conditions for a
of Annex II to the Staff Regulations provides for a                      block exemption under Regulation ( EEC ) No 123/85
minimum proportion of votes to be cast only in elections                 authorizing certain categories of motor vehicle
to the Staff Committee if it is not organized in local                   distribution and servicing agreements, or for an
sections, or to the local section where it is so organized .             individual exemption under Article 85 ( 3 ) of the
Furthermore, that provision requires that a minimum                      Treaty, particularly given the situation of the
proportion of those entitled to vote take part, and not that             Community motor vehicle sector which is marked by
a minimum proportion of votes be validly cast .                          the cumulative effect of a body of similar agreements,
Moreover, before annulling the elections at issue, the              — order the Commission to pay the costs .
Commission should, according to the applicant, have
taken account of other overriding factors, such as the
rights of electors who have properly cast their vote and of         Pleas in law and main arguments adduced in support:
candidates elected on that basis , as well as the basic
principle of the representativity, freedom and secrecy of
the ballot .                                                        By the contested decision of 23 September 1996 , the
                                                                    Commission dismissed the complaint submitted by the
                                                                    applicants alleging that VAG France ( an importer of new
As regards his alternative submissions, concerning the              VW and Audi motor vehicles into France ) infringed
transitional electoral arrangements adopted in March                Article 85 ( 1 ) of the EC Treaty. According to the
1990 and the partial elections held in November 1996 , the          applicants, that infringement consists in a policy of
applicant pleads infringement of the first, second, third           refusing to sell , conducted in the context of distribution
and fifth paragraphs of Article 1 of Annex II to the Staff          agreements between VAG France and its French
Regulations, of Article 7 of the Conditions of Employment           distributors, with the purpose and effect of excluding the
of Other Servants and of the principles of democracy and            applicants from the market for distributing motor vehicles
equality of treatment.                                              of the makes in question . The applicants argue that a
                                                                    distribution system of that nature fails to meet the
                                                                    conditions governing eligibility for a block exemption
                                                                    under Regulation ( FTC ) No 123/85 authorizing certain
                                                                    categories of motor vehicle distribution and servicing
                                                                    agreements , or for an individual exemption under
                                                                    Article 85 ( 3 ) of the EC Treaty.
Action brought on 22 November 1996 by Max Labat
Automobiles 17 and Riviera Auto Service Ets Dalmasso
   against the Commission of the European Communities
                                                                    The applicants maintain, first, that the contested decision
                       ( Case T-l 85 /96                            is vitiated by errors in both fact and law, and fails to
                          ( 97/C 54/39 )
                                                                    observe the obligations incumbent on the Commission
                                                                    when applying the rules on competition , both in so far as
                                                                    it declares that some of the complaints addressed by the
                (Language of the case: French)                      Commission       itself to  VAG    France   do  not   concern
                                                                    restrictions on competition and in so far as it deliberately
                                                                    glosses over established facts in the file which show that
An action against the Commission of the European                    the restrictions on competition were disregarded for no
Communities was brought before the Court of First                   good reason .
Instance of the European Communities on 22 November
1996 by Max Labat Automobiles 17, represented by
Muriel Amauger, Administrator appointed by the Tribunal             The applicants also argue that, by the contested decision,
de Commerce, Marennes, by judgment of 20 March 1992 ,               the Commission acted unlawfully in attempting to offload
and Riviera Auto Service Ets Dalmasso, represented by               its responsibilities for competition matters on to the
Helene Cauzette-Rey, Administrator appointed by the                 national courts on the pretext of lack of Community
Tribunal de Commerce, Nice, by judgment of 10 August                interest and a misinterpretation of the principle of
1989, counsel for the applicants being Christian                    subsidiarity.
Bourgeon , of the Paris Bar, with an address for service in
Luxembourg at the Chambers of Francois Brouxel , 6 rue
Zithe .


title: Case C-287/12 P: Judgment of the Court (Second Chamber) of 13 June 2013 — Ryanair Ltd v European Commission, Italian Republic, Alitalia — Compagnia Aerea Italiana SpA (Appeal — State aid — Loan granted by the Italian Republic to the airline company Alitalia — Decision declaring the aid unlawful and incompatible — Sale of assets of Alitalia — Decision finding no aid at the conclusion of the preliminary examination phase — Action for annulment — Locus standi — Interested party — Admissibility — Serious difficulties — Competence — Duty to state reasons)

text:
               3.8.2013

               EN

               Official Journal of the European Union

               C 225/36

         Judgment of the Court (Second Chamber) of 13 June 2013 — Ryanair Ltd v European Commission, Italian Republic, Alitalia — Compagnia Aerea Italiana SpA
   (Case C-287/12 P) (1)

   (Appeal - State aid - Loan granted by the Italian Republic to the airline company Alitalia - Decision declaring the aid unlawful and incompatible - Sale of assets of Alitalia - Decision finding no aid at the conclusion of the preliminary examination phase - Action for annulment - Locus standi - Interested party - Admissibility - Serious difficulties - Competence - Duty to state reasons)
   2013/C 225/61
   Language of the case: English

      Parties

      Appellant: Ryanair Ltd (represented by: E. Vahida, avocat, and I.-G. Metaxas-Maragkidis, dikigoros,)

      Other parties to the proceedings: European Commission (represented by: L. Flynn and D. Grespan), Italian Republic (represented by: G. Palmieri, Agent, assisted by P. Gentili, avvocato dello Stato), Alitalia — Compagnia Aerea Italiana SpA, (represented by: G. Bellitti, avvocato)

      Re:

   Appeal brought against the judgment of the General Court (Fifth Chamber) of 28 March 2012 in Case T-123/09 Ryanair v Commission, by which the General Court dismissed an action seeking, first, the annulment in part of Commission Decision C(2008) 6743 of 12 November 2008 on the loan of EUR 300 million granted by Italy to Alitalia (Aid No C 26/08) (ex NN 31/08) (OJ 2009 L 52, p. 3), in so far as that decision did not order the recovery of the aid from Alitalia’s successors, and, second, the annulment of Commission Decision C(2008) 6745 final of 12 November 2008 declaring that the procedure for selling off the assets of the Alitalia airline company, in the context of the extraordinary administrative procedure set to lead to the liquidation of that airline, does not constitute State aid, provided that the Italian authorities respect their commitments to ensure that the transactions will be carried out at the market price (Aid N 510/2008) (OJ 2009 C 46, p. 6)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Ryanair Ltd to bear, in addition to its own costs, the costs incurred by the European Commission and Alitalia — Compagnia Aerea Italiana SpA;

               3.

               Orders the Italian Republic to bear its own costs

      (1)  OJ C 303, 6.10.2012.


title: Case T-694/14: Action brought on 22 September 2014 — EREF/Commission

text:
               17.11.2014

               EN

               Official Journal of the European Union

               C 409/56

         Action brought on 22 September 2014 — EREF/Commission
   (Case T-694/14)
   2014/C 409/77
   Language of the case: English

      Parties

      Applicant: European Renewable Energies Federation (EREF) (Brussels, Belgium) (represented by: U. Prall, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the provisions of the Communication of the Commission — Guidelines on State aid for environmental protection and energy 2014-2020, of 28 June 2014 (OJ C 200/1) relating to the compatibility assessment under Article 107(3)C of the Treaty in chapter 3.3.2. on the design of support schemes for renewable energy entitled ‘Operating aid for renewable energy sources’.

               —

               order the European Commission to pay all procedural costs, including the costs of the applicant.

      Pleas in law and main arguments

   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging a lack of competence.

                           —

                           The Commission lacked the competence to adopt the Guidelines, as the European legislator has limited competence in the field of energy. Under Art. 194 TFEU, technology-neutral renewable energy support schemes cannot be imposed on the Member States as they impact their sovereign energy rights. The European Commission is not the EU legislator and cannot use guidelines to adopt ‘quasi legislation’ to go against the provisions of EU secondary law, i.e. the Renewable Energy Directive 2009/28/EC.

               2.

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

                           —

                           With the adoption of the Guidelines, the Commission infringed the duty to state reasons and thus an essential procedural requirement. Neither in the Guidelines themselves nor in the Impact Assessment sufficient justification for the policy choice of requiring all Member States in principle to adopt a technology-neutral competitive bidding system to support renewable energy can be found.

               3.

               Third plea in law, alleging an infringement of the principle of proportionality.

                           —

                           The Commission with the Guidelines further infringes the principle of proportionality, as the Guidelines propose instruments not suitable for the declared objectives of promoting the EU’s renewable energy objectives while reducing distortive effects. Neither are those instruments proportionate, while they do create excessive burdens both on Member States almost all of which will have to reform their renewable energy support schemes, and on individuals, who will have to take on the additional administrative burden caused by the participation in the competitive bidding procedures.

               4.

               Fourth plea in law, alleging a misuse of power.

                           —

                           The Guidelines constitute a misuse of power on behalf of the Commission. With the Guidelines the Commission seems to attempt to legislate in areas where the EU legislator is not competent, and suggests that measures intrinsically aiming at the harmonization of the support for renewable energy in the EU would be for the purposes of ensuring compatibility of certain State aid measures with the internal market.


title: Case T-169/08 RENV: Judgment of the General Court of 15 December 2016 — DEI v Commission (Competition — Abuse of a dominant position — Greek market for the supply of lignite and Greek wholesale electricity market — Decision finding an infringement of Article 86(1) EC, read in combination with Article 82 EC — Grant or maintenance of exploitation rights for public deposits of lignite in favour of a public undertaking — Definition of the markets at issue — Existence of unequal opportunities — Obligation to state reasons — Legitimate expectations — Misuse of powers — Proportionality)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/21

         Judgment of the General Court of 15 December 2016 — DEI v Commission
   (Case T-169/08 RENV) (1)

   ((Competition - Abuse of a dominant position - Greek market for the supply of lignite and Greek wholesale electricity market - Decision finding an infringement of Article 86(1) EC, read in combination with Article 82 EC - Grant or maintenance of exploitation rights for public deposits of lignite in favour of a public undertaking - Definition of the markets at issue - Existence of unequal opportunities - Obligation to state reasons - Legitimate expectations - Misuse of powers - Proportionality))
   (2017/C 038/28)
   Language of the case: Greek

      Parties

      Applicant: Dimosia Epicheirisi Ilektrismou AE (DEI) (Athens, Greece) (represented by: P. Anestis, lawyer)

      Intervener in support of the applicant: Hellenic Republic (represented by: P. Mylonopoulos and K. Boskovits, Agents)

      Defendant: European Commission (represented by: T. Christoforou, Agent, and A. Oikonomou, lawyer)

      Interveners in support of the defendant: Elpedison Paragogi Ilektrikis Energeias AE (Elpedison Energeiaki), formerly Energeiaki Thessalonikis AE (Marousi, Greece) and Elliniki Energeia kai Anaptyxi AE (HE & D SA) (Kifisia, Greece) (represented by: P. Skouris and E. Trova, lawyers) and Mytilinaios AE (Athens), Protergia AE (Athens) et Alouminion tis Ellados VEAE, formerly Alouminion AE (Athens) (represented by: N. Korogiannakis, I. Zarzoura, D. Diakopoulos and E. Chrisafis, lawyers)

      Re:

   Application based on Article 263 TFEU and seeking the annulment of Commission decision C(2008) 824 final of 5 March 2008 on the granting or maintaining in force by the Hellenic Republic of rights in favour of DEI for the extraction of lignite.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Dimosia Epicheirisi Ilektrismou AE (DEI), in addition to bearing its own costs, to pay those incurred by the European Commission, by Elpedison Paragogi Ilektrikis Energeias AE (Elpedison Energeiaki), by Elliniki Energeia kai Anaptyxi AE (HE & D SA), by Mytilinaios AE, by Protergia AE and by Alouminion tis Ellados VEAE;

               3.

               Declares that the Hellenic Republic is to bear its own costs.

      (1)  OJ C 183, 19.7.2008.


title: Case C-467/10: Reference for a preliminary ruling from the Landgericht Gießen (Germany) lodged on 28 September 2010 — Criminal proceedings against Baris Akyüz

text:
               4.12.2010

               EN

               Official Journal of the European Union

               C 328/18

         Reference for a preliminary ruling from the Landgericht Gießen (Germany) lodged on 28 September 2010 — Criminal proceedings against Baris Akyüz
   (Case C-467/10)
   ()
   2010/C 328/33
   Language of the case: German

      Referring court

   Landgericht Gie ßen

      Party to the main proceedings

   Baris Akyüz

      Questions referred

   Are

               (a)

               Article 1(2), in conjunction with the second subparagraph of Article 8(4), of Council Directive 91/439/EEC (1) of 19 July 1991 on driving licences, and

               (b)

               Article 2(1), in conjunction with Article 11(4), of Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (recast) (2)

         to be interpreted as meaning:

               1.

               that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where the acquisition of the driving licence in the issuing State was preceded by a refusal to grant a driving licence in the host State on the ground that the physical and mental requirements for the safe driving of a motor vehicle had not been met;

               2.

               if Question 1 is answered in the affirmative: that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where the acquisition of the driving licence in the issuing State was preceded by a refusal to grant a driving licence in the host State on the ground that the physical and mental requirements for the safe driving of a motor vehicle had not been met and, on the basis of information given on the driving licence, other indisputable information from the host State, or on the basis of other indisputable facts, in particular any information provided by the holder of the driver licence himself or other indisputable facts known to the host State, it is established that there has been a breach of the rule on residence under Article 7(1)(b) of Directive 91/439/EEC and Article 7(1)(e) of Directive 2006/126/EC

                           —

                           inasmuch as other indisputable facts, in particular any information provided by the holder of the driving licence himself or other indisputable facts known to the host State are not sufficient: that information, within the meaning of the case-law of the Court of Justice, is provided by the issuing State even in the case where that information has not been directly conveyed, but rather has been conveyed only indirectly in the form of a notification based on such information from a third party, in particular the host State’s embassy in the issuing State —;

               3.

               that they preclude a Member State (‘the host State’) from refusing to recognise, within its territory, a driving licence issued by another Member State (‘the issuing State’) in the case where, although the formal requirements for the issuing of a driving licence in the issuing State were fulfilled, it is nonetheless clear that the residence was solely for the purpose of acquiring a driving licence and was not for any other purposes protected by European Union law, in particular the fundamental freedoms under the TFEU, the Charter of Fundamental Rights of the European Union and the European Convention for the protection of human rights and fundamental freedoms (‘Driving licence tourism’)?

      (1)  OJ 1991 L 237, p. 1.

      (2)  OJ 2006 L 403, p. 18.


title: Case T-186/12: Judgment of the General Court of 25 June 2015 — Copernicus-Trademarks v OHIM — Maquet (LUCEA LED) (Community trade mark — Opposition proceedings — Application for Community word mark LUCEA LED — Earlier Community word mark LUCEO — Lack of precedence — Claiming of priority — Priority date entered in the register — Priority documents — Examination by OHIM of its own motion — Rights of the defence)

text:
               10.8.2015

               EN

               Official Journal of the European Union

               C 262/16

         Judgment of the General Court of 25 June 2015 — Copernicus-Trademarks v OHIM — Maquet (LUCEA LED)
   (Case T-186/12) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark LUCEA LED - Earlier Community word mark LUCEO - Lack of precedence - Claiming of priority - Priority date entered in the register - Priority documents - Examination by OHIM of its own motion - Rights of the defence))
   (2015/C 262/21)
   Language of the case: English

      Parties

      Applicant: Copernicus-Trademarks Ltd (Borehamwood, United Kingdom), authorised to replace Verus EOOD (represented: initially by S. Vykydal and subsequently by F. Henkel, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Maquet SAS (Ardon, France) (represented by: N. Hebeis, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 13 February 2012 (Case R 67/2011-4), relating to opposition proceedings between Capella EOOD and Maquet SAS.

      Operative part of the judgment

   The Court:

               1)

               Dismisses the action;

               2)

               Orders Copernicus-Trademarks Ltd to bear its own costs and to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and by Maquet SAS.

      (1)  OJ C 200, 7.7.2012.


title: Case C-306/07: Judgment of the Court (First Chamber) of 18 December 2008 (reference for a preliminary ruling from the Højesteret — Denmark) — Ruben Andersen v Kommunernes Landsforening, acting on behalf of Slagelse Kommune (formerly Skælskør Kommune) (Information to be provided to employees — Directive 91/533/EEC — Article 8(1) and (2) — Scope — Employees covered by a collective agreement — Concept of temporary contract or employment relationship )

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/13

         Judgment of the Court (First Chamber) of 18 December 2008 (reference for a preliminary ruling from the Højesteret — Denmark) — Ruben Andersen v Kommunernes Landsforening, acting on behalf of Slagelse Kommune (formerly Skælskør Kommune)
   (Case C-306/07) (1)

   (Information to be provided to employees - Directive 91/533/EEC - Article 8(1) and (2) - Scope - Employees ‘covered’ by a collective agreement - Concept of ‘temporary contract or employment relationship’)
   (2009/C 44/21)
   Language of the case: Danish
   Referring court
   Højesteret
   Parties to the main proceedings

      Applicant: Ruben Andersen

      Defendant: Kommunernes Landsforening, acting on behalf of Slagelse Kommune (formerly Skælskør Kommune)
   Re:
   Reference for a preliminary ruling — Højesteret — Interpretation of Article 8(1) and (2) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship (OJ 1991 L 288, p. 32) — Applicability of a collective agreement intended to transpose a directive to an employee who is not a member of one of the organisations which are party to that agreement — Rights of employees who believe themselves to be harmed by the failure to comply with the obligations under the directive
   Operative part of the judgment

               1.

               Article 8(1) of Council Directive 91/533/EEC of 14 October 1991 on an employer's obligation to inform employees of the conditions applicable to the contract or employment relationship must be interpreted as meaning that it does not prohibit national rules which provide that the terms of a collective agreement which is intended to transpose the provisions of the directive into national law are to apply to an employee even though he is not a member of an organisation which is a party to that agreement.;

               2.

               The second paragraph of Article 8(2) of Council Directive 91/533 must be interpreted as meaning that it does not prevent an employee who is not a member of a union which is a party to a collective agreement governing his employment relationship being regarded as ‘covered by’ that agreement within the meaning of the abovementioned provision.

               3.

               The words ‘a temporary contract or employment relationship’ in the second paragraph of Article 8(2) of Directive 91/533 are to be interpreted as referring to contracts and employment relationships entered into for a short period. If no norm has been laid down for that purpose in a Member State's rules, it is for the national courts to determine the duration in each case in the light of the specific characteristics of certain sectors or certain occupations or activities. That duration must, however, be fixed so as to provide effective protection of the rights conferred on workers by the directive.

      (1)  OJ C 211, 8.9.2007.


title: Action brought on 10 June 1996 by the Commission of the European Communities against the French Republic (Case C-197/96)

text:
10 . 8 . 96              EN                   Official Journal of the European Communities                                       No C 233/5
     into and out of the European Community ( ), as                                 particular an employed or self-employed person ),
     subsequently amended, be interpreted as also including                         has exercised the right to freedom of movement
     waste which for the most part consists of the solid plastic                    within the European Community ?
     wastes referred to in Annex II to the Regulation, but also
     of various other wastes referred to in that Annex and a                  ( b ) Is it relevant in that respect whether the other
     small quantity of materials not referred to therein ?                          parent moved with the child to another Member
                                                                                State and pursued an activity there as an employed
2 , ( a ) If Question 1 is answered in the affirmative , should                     or self-employed person until his or her death ?
           the phrase ' storage of materials intended for
           submission to any operation in this Annex' in                 2 . If question 1 is answered in the affirmative, is a retired
           Annex IIB to Council Directive 75/442/EEC of                       police officer a civil servant within the meaning of
           15 July 1975 on waste ( 2 ), as subsequently                       Article 2 ( 3 ) of Regulation ( EEC ) No 1408/71 ?
           amended, be interpreted as covering not only
           storage at the plant in which the other operations            C ) OJ , English Special Edition 1971 ( II ), p . 416 .
           referred to in the Annex will take place , but also
           storage pending transport to such a plant,
           regardless of whether that plant is situated inside or
           outside the Community ?
     ( b ) If the first part of this question is answered in the
           affirmative, what minimum evidence must be                    Action brought on 10 June 1996 by the Commission of the
           available for a finding that the waste is actually                European Communities against the French Republic
           intended for recovery, where notification has not
                                                                                ( Case C-197/96 )
           been given ?
                                                                                ( 96/C 233/08 )
3 . If Questions 1 and 2 ( a ) are answered in the affirmative ,
     must it then be inferred from the third sentence of                 An action against the French Republic was brought before
     Article 26 ( 2 ) of the Regulation that, in the cases to            the Court of Justice on 10 June 1996 by the Commission of
     which that provison refers , the competent authority of             the European Communities, represented by Marie
     destination is also obliged, or at any rate authorized , to         Wolfcarius , acting as Agent, with an address for service in
     do what the competent authority of dispatch is obliged              Luxembourg at the office of Carlos Gomez de la Cruz ,
     to do pursuant to the first sentence of that                        Wagner Centre, Kirchberg .
     provision ?
                                                                         The applicant claims that the Court should :
(') OJ No L 30 , 1993 , p . 1 .
Ç-) OJ No L 194 , 1975 , p . 47 .                                        — declare that, by maintaining, in Article L 213-1 of the
                                                                              Code du Travail ( Employment code ), a prohibition of
                                                                             night work for women in industry, whereas no such
                                                                             prohibition exists in relation to men, the French
                                                                             Republic has failed to fulfil its obligations under
                                                                             Article 5 ( 1 ) of Directive 76/207/EEC of 9 February
                                                                              1976 on the implementation of the principle of equal
                                                                             treatment for men and women as regards access to
Reference for a preliminary ruling from the                                  employment, vocational training and promotion , and
Bundessozialgericht by order of that court of 30 April 1996                  working conditions ( 1 ),
       in the case of Hilmar Kulzer v. Freistaat Bayern
                          ( Case C-194/96 )                              — order the French Republic to pay the costs .
                            ( 96 /C 233 /07 )
                                                                         Pleas in law and main arguments adduced in support:
Reference has been made to the Court of Justice of the                   In consequence of the denunciation by the French
European Communities by an order of the 10th Chamber of                  Government of ILO Convention No 89 , the obligations
the Bundessozialgericht ( Federal Social Court ) of 30 April             imposed by that Convention on France in relation to third
1 996 , which was received at the Court Registry on 1 0 June             countries, as recognized by the Court of Justice in the
1 996 , for a preliminary ruling in the case of Freistaat Bayern         judgment in Levy ( 2 ), ceased to exist with effect from
( Federal State of Bavaria ) v . Hilmar Kulzer on the following          February 1993 . The retention , without amendment, of the
questions :                                                              text of the legislation referred to in the wording of the form
                                                                         of order sought gives rise to an ambiguous state of affairs .
1 , ( a ) Does Regulation ( EEC ) No 1408/71 ('), in                     Save where it is of a binding nature , a ministerial reply to a
           particular Article 73 thereof, apply if the child in          parliamentary question C ) does not constitute an adequate
           respect of whom family benefits are sought, but not           adaptation of the legislative provisions in force in France .
           the person entitled to benefits him or herself ( in           Lastly, the existence of collective agreements negotiated in
 ---pagebreak--- No C 233/6               EN                    Official Journal of the European Communities                                       10 . 8 . 96
certain sectors is not enough to bring the infringement to an             Administratif ( Administrative Court ), Paris, of 3 April
end, given that the wording of Article 213-1 , which subsists              1 996 , which was received at the Court Registry on 12 June
in the French Code du Travail , simply prohibits night                     1 996 , for a preliminary ruling in the case of Laboratoires de
working for women in industry as a whole .                                Thérapeutique Moderne ( LTM ) v. Fonds d'Intervention et
                                                                          de Régularisation du Marché du Sucre ( FIRS ) on the
C ) OJ No L 39 , 1976 , p . 40 .                                          following question :
( 2 ) Case C-158/91 Levy [ 1993J ECR 1-4300 .
( 3 ) In response to the letter giving formal notice and the reasoned     Having regard to their composition, presentation and
      opinion, the French Government relied on a communication            purpose, do the products 'Alvityl 50 Dragées ' and
      published on 13 December 1993 in the Official Journal of the
      French Republic, p . 4517 et seq .
                                                                          'Strongenol 20 Ampoules' fall within the scope of
                                                                          subheading 21 of Council Regulation ( EEC ) No 1010/86 of
                                                                          25 March 1986 on the classification of goods or Chapter 30
                                                                          of the Common Customs Tariff ( 1 ) ?
Reference for a preliminary ruling from the Landgericht                   t 1 ) OJ No L 94, 9 . 4 . 1986 , p . 9 .
Kôln by order of that court of 18 April 1996 in the
interlocutory proceedings between Metronome Musik
            GmbH and Music Point Hokamp GmbH
                           ( Case C-200/96 )
                             ( 96/C 233/09 )                              Reference for a preliminary ruling from the Tribunal
                                                                          Administratif, Paris, by judgment of that court of 3 April
Reference has been made to the Court of Justice of the                    1996       in  the  case    of Laboratoires    Valda   v.   Fonds
European Communities by an order of the Landgericht Kôln                  d'Intervention et de Régularisation du Marché du Sucre
( Regional Court, Cologne ) of 18 April 1 996, which was                                                   ( FIRS )
received at the Court Registry on 13 June 1996 , for a                                              ( Case C-202/96 )
preliminary ruling in the interlocutory proceedings between
Metronome Musik GmbH and Music Point Hokamp                                                           ( 96/C 233/11 )
GmbH on the following question :
                                                                          Reference has been made to the Court of Justice of the
Is the introduction of an exclusive rental right, contrary to             European Communities by a judgment of the Tribunal
the principle of the exhaustion of distribution rights, by                Administratif ( Administrative Court ), Paris, of 3 April
Article 1 ( 1 ) of Council Directive 92/100/EEC of                        1996 , which was received at the Court Registry on 12 June
19 November 1992 on rental rights and lending rights and                  1996 , for a preliminary ruling in the case of Laboratoires
on certain rights related to copyright in the field of                    Valda v . Fonds d'Intervention et de Régularisation du
intellectual property ( 1 ) compatible with Community law, in             Marché du Sucre ( FIRS ) on the following questions :
particular Community fundamental rights ?
                                                                         — May Commission Regulation ( EEC ) No 717/85 of
n OJ No L 346 , 1992 , p . 61 .                                                 19 March 1985 on the classification of goods within
                                                                                subheading 17.04 D I of the common customs tariff ( 1 )
                                                                                be interpreted as referring to goods whose composition
                                                                                ( percentage by weight) is different from that indicated in
                                                                                Article 1 of that Regulation ?
Reference for a preliminary ruling from the Tribunal
Administratif, Paris, by judgment of that court of 3 April               — If the answer to the first question is in the negative, must
1996 in the case of Laboratoires de Thérapeutique Moderne                       Chapter 30.04 of the customs nomenclature, which
( LTM ) v. Fonds d'Intervention et de Régularisation du                         refers to medicaments, be interpreted as including a
                      Marché du Sucre ( FIRS )                                  product which contains sugar but above all active
                          ( Case C-201 /96 )                                    flavouring agents having medicinal properties in such a
                             ( 96/C 233/ 10 )                                   proportion that it is used essentially for therapeutic and
                                                                                prophylactic purposes ?
Reference has been made to the Court of Justice of the
European Communities by judgment of the Tribunal                          (') OJ No L 78 , 21 . 3 . 1985 , p . 13 .