title: Case T-235/10: Judgment of the General Court of 6 July 2011 — Timehouse v OHIM (Shape of a watch with jagged edges) (Community trade mark — Application for a three-dimensional mark — Shape of a watch with jagged edges — Absolute ground for refusal — Lack of distinctive character — Article 7(1)(b) of Regulation (EC) No 207/2009)

text:
               13.8.2011

               EN

               Official Journal of the European Union

               C 238/16

         Judgment of the General Court of 6 July 2011 — Timehouse v OHIM (Shape of a watch with jagged edges)
   (Case T-235/10) (1)

   (Community trade mark - Application for a three-dimensional mark - Shape of a watch with jagged edges - Absolute ground for refusal - Lack of distinctive character - Article 7(1)(b) of Regulation (EC) No 207/2009)
   2011/C 238/24
   Language of the case: German

      Parties

      Applicant: Timehouse GmbH (Eystrup, Germany) (represented by: V. Knies, lawyer)

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

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 11 March 2011 (Case R 0942/2009-1), concerning an application for registration of a three-dimensional sign consisting of the shape of a watch as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Timehouse GmbH to pay the costs.

      (1)  OJ C 209, 31.7.2010.


title: Case T-74/11: Action brought on 1 February 2011 — Omnis Group Srl v European Commission

text:
               26.3.2011

               EN

               Official Journal of the European Union

               C 95/10

         Action brought on 1 February 2011 — Omnis Group Srl v European Commission
   (Case T-74/11)
   2011/C 95/16
   Language of the case: Romanian

      Parties

      Applicant(s): Omnis Group Srl (Bucarest, Romania) (represented by: D.-A.-F. Tarara, lawyer)

      Defendant(s): European Commission

      Form of order sought

               —

               Grant this application for annulment of the decision of the defendant of 1 December 2010 in case COMP/39.784 — Omnis/Microsoft;

               —

               Refer the case back to the defendant for a decision;

               —

               In the alternative, the General Court should decide the case and uphold the applicant's complaint.

      Pleas in law and main arguments

   By its application, the applicant is seeking, pursuant to Article 263 TFEU, the annulment of the decision of the defendant of 1 December 2010 in Case COMP/39.784 — Omnis/Microsoft, which rejected the complaint made by the applicant concerning alleged anti-competitive conduct by M9icrosoft.
   In support of its application, the applicant relies on the following pleas:

               1.

               The first plea in law is based on the fact that the refusal by the defendant to investigate the abuses by Microsoft on the EAS/ERP (Enterprise Application Software/Enterprise Resource Planning) market is based on unfounded arguments.

               2.

               The second plea in law is based on the fact that the defendant assessed the importance of the case wrongly, reaching the unfounded and unlawful conclusion that the issue raised by the applicant was of no interest to the EU.

               3.

               The third plea in law is based on the fact that the decision of the defendant not to follow up the applicant’s complaint is unlawful and unfounded in that it infringes the rights of the applicant.

               4.

               The fourth plea in law is based on the fact that the decision of the defendant was made without documentation to corroborate Microsoft’s statements being available, so that, as a result of that decision, the anti-competitive conduct complained of persists, and the development of the applicant is impeded.


title: Case C-62/15 P: Appeal brought on 11 February 2015 by DTL Corporación, S.L. against the judgment of the General Court (Third Chamber) delivered on 9 December 2014 in Case T-176/13 DTL Corporación v OHIM

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/14

         Appeal brought on 11 February 2015 by DTL Corporación, S.L. against the judgment of the General Court (Third Chamber) delivered on 9 December 2014 in Case T-176/13 DTL Corporación v OHIM
   (Case C-62/15 P)
   (2015/C 146/22)
   Language of the case: Spanish

      Parties

      Appellant: DTL Corporación, S.L. (represented by: A. Zuazo Araluze, lawyer)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The appellant claims that the Court should:

               —

               annul in part, in respect of all the goods and services in Classes 9 and 37, the decision of the Fourth Board of Appeal of 24 January 2013 in Case R 661/2012-4 dismissing the appeal brought against the rejection of the application for Community trade mark No 8830821 ‘Generia’;

               —

               order OHIM and the other parties to the proceedings who oppose this appeal to pay the costs of this appeal.

      Pleas in law and main arguments

      Infringement of EU law by the General Court: The Fourth Board of Appeal changed, in its decision of 24 January 2013 in Case R 661/2012-4, the grounds for the decision of the Opposition Division for rejecting Community trade mark No 8830821 ‘Generia’ in respect of Classes 9 and 37. The Opposition Division had based that rejection on the similarity of the goods and services in Classes 9 and 37 with the goods of the opposing mark in Class 7. For its part, the Board of Appeal upheld the rejection, but on the ground of the similarity of the goods and services in Classes 9 and 37 with the services of the opposing mark in Class 40. In so doing, the Board of Appeal infringed Article 64(1) of Council Regulation (EC) No 207/2009 (1) on the Community trade mark because the services of the opposing mark in Class 40 had never been put forward in opposition to the goods and services of the trade mark applied for in Classes 9 and 37 (although they were put forward against the services in other classes). In addition, the decision infringed Article 75 of Council Regulation (EC) No 207/2009 on the Community trade mark since the party now appealing was not invited to submit observations on that change to the grounds. The judgment under appeal maintains that the proceedings were legally correct, thereby infringing EU law (Articles 64(1) and 75 of Council Regulation (EC) No 207/2009 on the Community trade mark).

      (1)  OJ 2009 L 78, p. 1.


title: Case F-105/13: Action brought on 22 October 2013 — ZZ and Others v Court of Auditors

text:
               18.1.2014

               EN

               Official Journal of the European Union

               C 15/21

         Action brought on 22 October 2013 — ZZ and Others v Court of Auditors
   (Case F-105/13)
   2014/C 15/32
   Language of the case: French

      Parties

      Applicants: ZZ and Others (represented by: A. Coolen, J-N. Louis, É. Marchal and D. Abreu Caldas, lawyers)

      Defendant: Court of Auditors

      Subject-matter and description of the proceedings

   Application for annulment of the decision of the Court of Auditors of 13 December 2013 not to refer the matter to the Court of Justice in order to request it to examine whether Ms S., at that time a Member of the Court of Auditors, no longer fulfilled the requisite conditions or met the obligations arising from her office and not to rule on the complaints of the applicants, not to take any measures which may publicly recognise the harassment that they have sustained, their suffering and to take steps to restore their good names, their credibility and dignity and to compensate the material and non-material damage suffered.

      Form of order sought

               —

               Annul the decision of the Court of Auditors of 13 December 2013, acting as appointing authority, not to rule on the complaints of the applicants, not to take any measures which may publicly recognise the harassment that they have sustained, their suffering and to take steps to restore their good names, their credibility and dignity and to compensate the material and non-material damage suffered;

               —

               Order the Court of Auditors to pay the costs.


title: Case C-560/07: Reference for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 18 December 2007 — AS Balbiino v EV Põllumajandusministeerium, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/20

         Reference for a preliminary ruling from the Tallinna Halduskohus (Estonia) lodged on 18 December 2007 — AS Balbiino v EV Põllumajandusministeerium, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus
   (Case C-560/07)
   (2008/C 64/31)
   Language of the case: Estonian
   Referring court
   Tallinna Halduskohus
   Parties to the main proceedings

      Applicant: AS Balbiino

      Defendants: EV Põllumajandusministeerium, Maksu- ja Tolliameti Põhja maksu- ja tollikeskus
   Questions referred

               1.

               Does the law of the European Union, in particular Article 6(1) of Commission Regulation (EC) No 60/2004 (1), in conjunction with recital 3 in the preamble to Commission Regulation (EC) No 832/2005 (2), and Article 4(1) and (2) of Commission Regulation (EC) No 1972/2003 (3), preclude the ascertainment of the amount of an operator's surplus stock by automatically deducting from the surplus stock (regarded as transitional stock) the average stock as at 1 May of the operator's years of activity preceding 1 May 2004, but not more than four years of activity, multiplied by 1.2?
               If the answer is in the affirmative, would the answer be different if in determining the transitional stock and surplus stock it were possible also to take into account the growth of the operator's production, processing or sales volume, the maturation period of the agricultural product, the time when the stocks were built up, and other circumstances independent of the operator?

               2.

               It is compatible with the law of the European Union, in particular the objective of Commission Regulation (EC) No 1972/2003, to regard the entire stock of an agricultural product in the operator's possession as at 1 May 2004 as the operator's surplus stock?

               3.

               If the operator started to deal in the corresponding agricultural product less than one year before 1 May 2004, does the law of the European Union, in particular Article 4 of Commission Regulation (EC) No 1972/2003 and Article 6 of Commission Regulation (EC) No 60/2004, preclude that operator himself having to prove that the amount of the stock of the agricultural product in his possession on 1 May 2004 is equivalent to the amount of the stock of the agricultural product customarily produced, sold, otherwise transferred for payment or without payment or acquired by him?
               If the answer is in the affirmative, would the answer be different if, regardless of the operator's obligation to provide proof, the administrative body had an obligation to take into account, on the basis of the declaration of the agricultural product submitted by the operator, in assessing the operator's transitional stock and surplus stock, the growth of the operator's production, processing or sales volume and stock after 1 May 2004?

               4.

               Is it compatible with the objective of Commission Regulation (EC) No 1972/2003 and Commission Regulation (EC) No 60/2004 to levy the surplus stock charge where the operator is found to have a surplus stock as at 1 May 2004 but the operator shows that he has not obtained a real advantage in terms of a price difference from marketing the surplus stock after 1 May 2004?

               5.

               Must the provisions of Article 6(3) of Commission Regulation (EC) No 60/2004, under which account is taken, in determining surplus quantities of sugar, isoglucose or fructose, inter alia of storage capacities, be interpreted as meaning that in a situation in which the operator's storage capacities have increased during the year preceding accession that is a basis for reducing the surplus stock of the agricultural product in the possession of the operator as at 1 May 2004, regardless of the operator's economic activity, the volume of the agricultural product processed and the amount of stocks of the agricultural product in the years of activity preceding 1 May 2004 and during the two years following 1 May 2004?

               6.

               Does Article 10 of Commission Regulation (EC) No 1972/2003 preclude the demanding of a surplus stock charge from an operator by a tax notice in a situation in which the tax notice was indeed drawn up while the regulation was applicable, on 30 April 2007, but according to national law became enforceable against the operator after the final date of application of the Commission regulation, and national law does not establish a time-limit for demanding the stock charge?

      (1)  Commission Regulation (EC) No 60/2004 of 14 January 2004 laying down transitional measures in the sugar sector by reason of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2004 L 9, p. 8).

      (2)  Commission Regulation (EC) No 832/2005 of 31 May 2005 on the determination of surplus quantities of sugar, isoglucose and fructose for the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2005 L 138, p. 3).

      (3)  Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3).


title: Case C-102/05: Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in Skatteverket v A and B

text:
               30.4.2005

               EN

               Official Journal of the European Union

               C 106/19

         Reference for a preliminary ruling from the Regeringsrätten by order of that court of 15 October 2004 in Skatteverket v A and B
   (Case C-102/05)
   (2005/C 106/37)
   Language of the case: Swedish
   Reference has been made to the Court of Justice of the European Communities by order of the Regeringsrätten (Supreme Administrative Court) (Sweden) of 15 October 2004, received at the Court Registry on 28 February 2005, for a preliminary ruling in the proceedings between Skatteverket (Tax Board) and A and B on the following questions:

               1.

               Is it contrary to the provisions on free movement of capital between the Member States and third countries, in a situation like the present case, for A and B to be taxed less favourably in respect of dividends from X because X's subsidiary Y conducts business in Russia rather than in Sweden?

               2.

               Does it have any relevance whether A and B acquired shares in X before or after business in Russia was commenced or modified?


title: Case T-368/10: Judgment of the General Court of 16 September 2013 — Rubinetteria Cisal v Commission (Competition — Agreements, decisions and concerted parties — Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria — Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement — Coordination of price increases and exchange of sensitive business information — Concept of infringement — 2002 Leniency Notice — Cooperation — 2006 Guidelines on the method of setting fines — Calculation of the fine — Inability to pay)

text:
               9.11.2013

               EN

               Official Journal of the European Union

               C 325/24

         Judgment of the General Court of 16 September 2013 — Rubinetteria Cisal v Commission
   (Case T-368/10) (1)

   (Competition - Agreements, decisions and concerted parties - Bathroom fittings and fixtures markets of Belgium, Germany, France, Italy, the Netherlands and Austria - Decision finding an infringement of Article 101 TFEU and Article 53 of the EEA Agreement - Coordination of price increases and exchange of sensitive business information - Concept of infringement - 2002 Leniency Notice - Cooperation - 2006 Guidelines on the method of setting fines - Calculation of the fine - Inability to pay)
   2013/C 325/39
   Language of the case: Italian

      Parties

      Applicant: Rubinetteria Cisal (Alzo Frazione di Pella, Italy) (represented by: M. Pinnarò and P. Santer, lawyers)

      Defendant: European Commission (represented by: F. Castillo de la Torre, A. Antoniadis and L. Malferrari, Agents, assisted by A. Dal Ferro, lawyer)

      Re:

   Application for annulment of Commission Decision C(2010) 4185 final of 23 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom Fittings and Fixtures), and, in the alternative, for reduction of the fine imposed on the applicant.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Rubinetteria Cisal SpA to bear its own costs and to pay those of the European Commission.

      (1)  OJ C 288, 23.10.2010.


title: Case T-238/09: Judgment of the General Court of 30 November 2011 Sniace v Commission (State aid — Agreements relating to debt rescheduling — Decision declaring an aid to be incompatible with the common market — Obligation to give reasons)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/48

      Judgment of the General Court of 30 November 2011 Sniace v Commission
      (Case T-238/09) (1)

      (State aid - Agreements relating to debt rescheduling - Decision declaring an aid to be incompatible with the common market - Obligation to give reasons)
      (2012/C 25/92)
      Language of the case: Spanish

         Parties

         Applicant: Sniace (Madrid, Spain) (represented by: F.J. Moncholí Fernández and S. Ratting, lawyers)

         Defendant: European Commission (represented by: C. Urraca Caviedes, acting as Agent)

         Re:

      Annulment of Commission Decision 2009/612/CE of 10 March 2009 relating to measure C 5/2000 (ex NN 118/1997) implemented by Spain in favour of Sniace, SA, Torrelavega, Cantabria, and amending Decision 1999/395/EC (OJ 2009 L 210, p. 1).

         Operative part of the judgment

      The Court:

                  1.

                  Dismisses the action;

                  2.

                  Orders Sniace SA to bear its own costs and, in addition, to pay the European Commission's costs, including those incurred in the application for interim measures.

         (1)  OJ C 193, 15.8.2009.


title: Case T-237/09: Action brought on 17 June 2009 — Région Wallonne v Commission

text:
               15.8.2009

               EN

               Official Journal of the European Union

               C 193/27

         Action brought on 17 June 2009 — Région Wallonne v Commission
   (Case T-237/09)
   2009/C 193/43
   Language of the case: French

      Parties

      Applicant: Région Wallonne (represented by: J.-M. De Backer, A. Lapièce, and I.-S. Brouhns, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               An order annulling the Commission’s decision of 27 March 2009 concerning the Belgian National Allocation Plan on the ground that the decision rejects the allocation of allowances to installation No 116 for the period 2008 — 2012, and permitting allocation by annual tranches in accordance with Annex Va to the NAP;

               —

               An order that the Commission pay the costs.

      Pleas in law and main arguments

   The applicant claims annulment of the Commission’s decision of 27 March 2009 concerning the national plan for allocation of greenhouse gas emission allowances for Belgium for the period from 2008 to 2012, by which the Commission refused the correction to the ‘National Allocation Plan table’ according allowances to installation No 116.
   In support of its action, the applicant relies on four pleas in law:

               —

               breach of Article 44(2) of Commission Regulation (EC) No 2216/2004, (1) since the Commission relied on grounds which were not provided for by the applicable provision;

               —

               breach of its obligation to state reasons for the contested decision, from which it cannot be ascertained in what way the correction to Belgium’s ‘National Allocation Plan table’ in respect of installation No 116 is not based on the national plan for allocation of greenhouse gas emission allowances notified by Belgium and approved by the Commission beforehand;

               —

               breach of the principle of legal certainty and of legitimate expectations, on the ground that the contested decision is contrary to the national plan for allocation of greenhouse gas emission allowances approved by the Commission;

               —

               breach of the principle of good faith in Community matters and of sound administration, since the Commission adopted a decision which is contrary to a previous decision adopted six months earlier.

      (1)  Commission Regulation (EC) No 2216/2004 of 21 December 2004 for a standardised and secured system of registries pursuant to Directive 2003/87/EC of the European Parliament and of the Council and Decision No 280/2004/EC of the European Parliament and of the Council (OJ 2004 L 386, p. 1)


title: Case T-580/13: Order of the General Court of 21 April 2015 — Real Express v OHIM — MIP Metro (real) (Community trade mark — Opposition proceedings — Application for the Community figurative mark real — Earlier national figurative marks Real and Real mark — Rejection of the opposition — Rule 19(1) of Regulation (EC) No 2868/95 — Rule 20(1) of Regulation No 2868/95)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/38

         Order of the General Court of 21 April 2015 — Real Express v OHIM — MIP Metro (real)
   (Case T-580/13) (1)

   ((Community trade mark - Opposition proceedings - Application for the Community figurative mark real - Earlier national figurative marks Real and Real mark - Rejection of the opposition - Rule 19(1) of Regulation (EC) No 2868/95 - Rule 20(1) of Regulation No 2868/95))
   (2015/C 198/52)
   Language of the case: English

      Parties

      Applicant: Real Express Srl (Romania) (represented by: C. Anitoae, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: M. Rajh and J. Crespo Carrillo, Agents)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: MIP Metro Group Intellectual Property GmbH & Co. KG (Düsseldorf, Germany) (represented by: J.-C. Plate and R. Kaase, lawyers)

      Re:

   Action against the decision of the Fourth Board of Appeal of OHIM of 16 September 2013 (Case R 1519/2012-4) relating to opposition proceedings between Real Express SRL and MIP Metro Group Intellectual Property GmbH & Co. KG.

      Operative part of the order

               1.

               The action is dismissed as being, in part, manifestly inadmissible and, in part, manifestly lacking any foundation in law.

               2.

               Real Express SRL is ordered to pay the costs.

      (1)  OJ C 45, 15.2.2014.


title: Case C-238/08: Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 3 June 2008 — Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger, a franchisee of Unicis

text:
               15.8.2008

               EN

               Official Journal of the European Union

               C 209/27

         Reference for a preliminary ruling from the Cour de Cassation (France) lodged on 3 June 2008 — Google France v CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger, a franchisee of ‘Unicis’
   (Case C-238/08)
   (2008/C 209/41)
   Language of the case: French
   Referring court
   Cour de Cassation (Commercial, Financial and Economic Division)
   Parties to the main proceedings

      Appellant: Google France

      Respondents: CNRRH, Pierre-Alexis Thonet, Bruno Raboin, Tiger, a franchisee of ‘Unicis’
   Questions referred

               1.

               Does the reservation by an economic operator, by means of an agreement on paid Internet referencing, of a keyword triggering, in the case of a request using that word, the display of a link proposing connection to a site operated by that operator in order to offer for sale goods or services, and which reproduces or imitates a trade mark registered by a third party in order to designate identical or similar goods, without the authorisation of the proprietor of that trade mark, constitute in itself an infringement of the exclusive right guaranteed to the latter by Article 5 of First Council Directive 89/104/EEC of 21 December 1988 (1)?

               2.

               Must Article 5(1)(a) and (b) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks be interpreted as meaning that a provider of a paid referencing service who makes available to advertisers keywords reproducing or imitating registered trade marks and arranges by the referencing agreement to create and favourably display, on the basis of those keywords, advertising links to sites offering goods identical or similar to those covered by the trade mark registration is using those trade marks in a manner which their proprietor is entitled to prevent?

               3.

               In the event that such use does not constitute a use which may be prevented by the trade mark proprietor under the directive or [Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark] (2), may the provider of the paid referencing service be regarded as providing an information society service consisting of the storage of information provided by the recipient of the service, within the meaning of Article 14 of Directive 2000/31 of 8 June 2000 (3), so that that provider cannot incur liability before it has been informed by the trade mark proprietor of the unlawful use of the sign by the advertiser?

      (1)  First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks (OJ 1989 L 40, p. 1).

      (2)  OJ 1994 L 11, p. 1.

      (3)  Directive 2000/31/EC of the European Parliament and of the Council of 8 June 2000 on certain legal aspects of information society services, in particular electronic commerce, in the Internal Market (‘Directive on electronic commerce’) (OJ 2000 L 178, p. 1).


title: Case T-358/06: Order of the Court of First Instance of 4 July 2008 — Wegenbouwmaatschappij J. Heijmans v Commission (Action for annulment — Decision finding an infringement of Article 81 EC — Action brought by an undertaking referred to in the reasons for a decision not addressed to it — Lack of interest in bringing proceedings — Inadmissible)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/42

         Order of the Court of First Instance of 4 July 2008 — Wegenbouwmaatschappij J. Heijmans v Commission
   (Case T-358/06) (1)

   (Action for annulment - Decision finding an infringement of Article 81 EC - Action brought by an undertaking referred to in the reasons for a decision not addressed to it - Lack of interest in bringing proceedings - Inadmissible)
   (2008/C 223/71)
   Language of the case: Dutch
   Parties

      Applicant: Wegenbouwmaatschappij J. Heijmans (Rosmalen, Netherlands) (represented by: M. Smeets and A. Van den Oord, lawyers)

      Defendant: Commission of the European Communities (represented by: A. Bouquet and A. Nijenhuis, Agents, assisted by F. Wijckmans, F. Tuyschaever and L. Gyselen, lawyers)
   Re:
   Action for annulment of Commission Decision 2007/523/EC decision of 13 September 2006 relating to a proceeding under Article 81 EC (Case COMP/38.456 — Bitumen — Netherlands) or, in the alternative, a reduction of the fine imposed on Heijmans NV and Hejmans Infrastructur BV.
   Operative part of the order
   The Court:

               1.

               Dismisses the action;

               2.

               Orders Wegenbouwmaatschappij J. Heijmans BV to bear its own costs and to pay the costs incurred by the Commission.

      (1)  OJ C 20, 27.1.2007.


title: Case C-274/06: Judgment of the Court (Third Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Article 56 EC — National provision limiting the voting rights of shareholders in undertakings in the energy sector — Limitation applicable to public bodies)

text:
               29.3.2008

               EN

               Official Journal of the European Union

               C 79/4

         Judgment of the Court (Third Chamber) of 14 February 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-274/06) (1)

   (Failure of a Member State to fulfil its obligations - Article 56 EC - National provision limiting the voting rights of shareholders in undertakings in the energy sector - Limitation applicable to public bodies)
   (2008/C 79/06)
   Language of the case: Spanish
   Parties

      Applicant: Commission of the European Communities (represented by: H. Stovlbæk and R. Vidal Puig, Agents, acting as Agents)

      Defendant: Kingdom of Spain (represented by: N. Díaz Abad, acting as the Agent)
   Re:
   Failure of a Member State to fulfil its obligations — Infringement of Article 56 EC — National provision which provides, in certain cases, for the limitation of voting rights in undertakings in the energy sector
   Operative part of the judgment
   The Court:

               1.

               Declares that, by maintaining in force measures such as those laid down in the Supplementary Provision No 27 to Law 55/1999 of 29 December 1999 on fiscal, administrative and social measures, in the version of that provision in Article 94 of Law 62/2003 of 30 December 2003, which limits the voting rights of shares held by public bodies in Spanish undertakings operating in the energy sector, the Kingdom of Spain has failed to fulfil its obligations under Article 56 EC.

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 212 of 2.9.2006.


title: Case C-196/13: Action brought on 16 April 2013 — European Commission v Italian Republic

text:
               20.7.2013

               EN

               Official Journal of the European Union

               C 207/9

         Action brought on 16 April 2013 — European Commission v Italian Republic
   (Case C-196/13)
   2013/C 207/16
   Language of the case: Italian

      Parties

      Applicant: European Commission (represented by: A. Alcover San Pedro and D. Recchia, acting as Agents)

      Defendant: Italian Republic

      Form of order sought

               —

               Declare that, by having failed to take all the necessary measures to comply with the judgment of the Court of Justice of the European Communities of 26 April 2007 in Case C-135/05, in which it was declared that the Italian Republic had failed to fulfil its obligations under Articles 4, 8 and 9 of Directive 75/442/EEC, (1) as amended by Directive 91/156/EEC, (2) under Article 2(1) of Council Directive 91/689/EEC of 12 December 1991 on hazardous waste, (3) and under Article 14(a) to (c) of Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste, (4) the Italian Republic has failed to fulfil its obligations under Article 260(1) TFEU;

               —

               Order the Italian Republic to pay to the Commission a daily penalty payment in an amount of EUR 256 819,2 for the delay in complying with the judgment in Case C-135/05, from the date of judgment in the present case until the date on which the judgment in Case C-135/05 is complied with;

               —

               Order the Italian Republic to pay to the Commission a lump sum, the amount of which is calculated by multiplying a daily amount of EUR 28 089,6 by the number of days over which the failure to fulfil obligations continues, from the date of delivery of the judgment in Case C-135/05 until the date of judgment in the present case;

               —

               Order the Italian Republic to pay the costs.

      Pleas in law and main arguments

   With regard to the infringement of Articles 4, 8 and 9 of Directive 75/442/EEC, as amended by Directive 91/156/EEC, and of Article 2(1) of Directive 91/689/EEC on hazardous waste, according to the information provided by the Italian authorities, there are still at least 218 illegal landfills in Italy, located across all the Italian regions. Since they have not been authorised, the 218 illegal landfills do not comply with the abovementioned provisions.
   With regard to the infringement of Article 14(a) to (c) of Directive 1999/31/EC on the landfill of waste, according to the information provided by the Italian authorities, there continue to be five landfills in respect of which the relevant conditioning plans have not been submitted or approved and which have nevertheless not been closed by the competent authorities, in breach of the abovementioned provisions.
   The proposed penalty (daily penalty payment and lump sum) is proportionate to the gravity and duration of the infringement, taking account, inter alia, of the need to ensure that the penalty acts as an effective deterrent.

      (1)  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ 1975 L 194, p. 39).

      (2)  Council Directive 91/156/EEC of 18 March 1991 amending Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).

      (3)  Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ 1991 L 377, p. 20).

      (4)  Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ 1999 L 182, p. 1).


title: Case T-223/11: Action brought on 20 April 2011 — Siemens v Commission

text:
               2.7.2011

               EN

               Official Journal of the European Union

               C 194/17

         Action brought on 20 April 2011 — Siemens v Commission
   (Case T-223/11)
   2011/C 194/27
   Language of the case: English

      Parties

      Applicant: Siemens AG (Munich, Germany) (represented by: J. Risse, R. Harbst and H. Haller, lawyers)

      Defendant: European Atomic Energy Community, represented by the European Commission

      Form of order sought

               —

               Order the defendant to pay to the applicant an amount of EUR 16 114 147 plus interest at a rate of 8 percentage points above the German base rate since 20 April 2011; and

               —

               Order the defendant to reimburse the applicant, on a full indemnity basis, for attorneys’ fees and other expenses incurred due to the present proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that under the contract concluded with the defendant, the applicant is entitled to claim cost compensation for the additional costs incurred.

               2.

               Second plea in law, alleging, in the alternative, that such cost compensation should be paid under German law, applicable to the contract, more specifically under Section 313 of the German Civil Code (BGB).


title: Corrigendum to notice in the Official Journal in Case T-161/17 (OJ C 151, 15.5.2017)

text:
               17.7.2017

               EN

               Official Journal of the European Union

               C 231/57

         Corrigendum to notice in the Official Journal in Case T-161/17
   (
         Official Journal of the European Union C 151 of 15 May 2017
      )
   (2017/C 231/74)
   The notice in the Official Journal in Case T-161/17, Le Pen v Parliament, should be read as follows:

      ‘Action brought on 11 March 2017 — Le Pen v Parliament
      (Case T-161/17)
      (2017/C 151/49)
      Language of the case: French

         Parties

         Applicant: Marion Le Pen (Saint-Cloud, France) (represented by: M. Ceccaldi and J.-P. Le Moigne, lawyers)

         Defendant: European Parliament

         Form of order sought

      The applicant claims that the Court should:

                  —

                  annul the decision of the Secretary-General of the European Parliament of 6 January 2017, adopted pursuant to Articles 33, 43, 62, 67 and 68 of Decision 2009/C 159/01 of the Bureau of the European Parliament of 19 May and 9 July 2008“concerning implementing measures for the Statute for Members of the European Parliament”, as amended, making a claim against the applicant for an amount of EUR 41 554 by way of sums unduly paid for parliamentary assistance and giving reasons for its recovery, and ordering the competent authorising officer, in cooperation with the accounting officer of that institution, to recover that amount in accordance with Article 68 of the implementing measures and Articles 66, 78, 79 and 80 of the Financial Regulation;

                  —

                  annul Debit Note No 2017-22 of 11 January 2017 informing the applicant that a claim for EUR 41 554 has been made against her following the Secretary-General’s decision of 6 January 2017 ordering the recovery of sums unduly paid for parliamentary assistance in accordance with Article 68 of the implementing measures and Articles 78, 79 and 80 of the Financial Regulation;

                  —

                  order the European Parliament to pay the costs in their entirety;

                  —

                  order the European Parliament to pay Ms Le Pen the sum of EUR 50 000 by way of compensation for the recoverable costs.

         Pleas in law and main arguments

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

                  1.

                  First plea in law, alleging defects affecting the procedural legality of the contested measures. This plea is divided into five parts.

                              —

                              First part, alleging that the power to make financial decisions concerning Members rests with the Bureau of the European Parliament and not with the Secretary-General.

                              —

                              Second part, alleging that the Bureau of the European Parliament cannot alter the nature and scope of its powers. The Secretary-General has not provided evidence of any lawful delegation of power by the President of the Bureau of the Parliament of the power to adopt and notify the contested measures in order to settle financial issues concerning a Member.

                              —

                              Third part, alleging that the contested measures do not contain a sufficient statement of reasons, and that they are of an arbitrary nature.

                              —

                              Fourth part, alleging infringement of essential procedural requirements.

                              —

                              Fifth part, alleging that the Secretary-General of the European Parliament did not personally examine the case-file.

                  2.

                  Second plea in law, alleging defects affecting the substantive legality of the contested measures. This plea is divided into six parts.

                              —

                              First part, alleging infringement of the principles of legitimate expectations and legal certainty.

                              —

                              Second part, alleging that there are no facts to support the contested measures.

                              —

                              Third part, alleging that the contested measures are vitiated by a misuse of powers.

                              —

                              Fourth part, alleging that the contested measures are vitiated by an abuse of process.

                              —

                              Fifth part, alleging that the contested measures are discriminatory and that there is fumus persecutionis.

                              —

                              Sixth part, alleging a lack of independence on the part of OLAF.’


title: Case T-317/15: Action brought on 18 June 2015 — Italy v Commission

text:
               3.8.2015

               EN

               Official Journal of the European Union

               C 254/21

         Action brought on 18 June 2015 — Italy v Commission
   (Case T-317/15)
   (2015/C 254/24)
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: P. Gentili, avvocato dello Stato, and G. Palmieri, acting as Agent)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the notice of competition EPSO/AD/302/15 — Administrators (AD 5) in the field of Audit;

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   The pleas in law and main arguments relied on by the applicant are those raised in Case T-17/15 Italian Republic v Commission (OJ 2015 C 81, p. 27).


title: Case T-112/07: Judgment of the General Court of 12 July 2011 — Hitachi and Others v Commission (Competition — Agreements, decisions and concerted practices — Market in gas insulated switchgear projects — Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement — Market-sharing — Rights of the defence — Proof of the infringement — Single and continuous infringement — Fines — Gravity and duration of the infringement — Deterrent effect — Cooperation)

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/30

         Judgment of the General Court of 12 July 2011 — Hitachi and Others v Commission
   (Case T-112/07) (1)

   (Competition - Agreements, decisions and concerted practices - Market in gas insulated switchgear projects - Decision finding an infringement of Article 81 EC and Article 53 of the EEA Agreement - Market-sharing - Rights of the defence - Proof of the infringement - Single and continuous infringement - Fines - Gravity and duration of the infringement - Deterrent effect - Cooperation)
   2011/C 252/70
   Language of the case: English

      Parties

      Applicants: Hitachi Ltd (Tokyo, Japan); Hitachi Europe Ltd (Maidenhead, United Kingdom); and Japan AE Power Systems Corp. (Tokyo) (represented by: M. Reynolds, P. Mansfield and B. Roy, Solicitors, D. Arts, lawyer, N. Green QC, and S. Singla, Barrister)

      Defendant: European Commission (represented by: initially F. Arbault, then X. Lewis, and subsequently P. Van Nuffel and J. Bourke, and finally P. Van Nuffel, N. Khan and F. Ronkes Agerbeek, Agents, assisted by J. Holmes, Barrister)

      Re:

   APPLICATION, primarily, for the annulment of Commission Decision C(2006) 6762 final of 24 January 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.899 — Gas insulated switchgear) to the extent to which it concerns the applicants and annulment of the fines imposed on them and, in the alternative, for the annulment of Article 2 of that decision to the extent to which it concerns the applicants and, in the further alternative, for the annulment or a reduction of the fines imposed on the applicants.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicants to pay the costs.

      (1)  OJ C 129, 9.6.2007.


title: Case C-48/10: Action brought on 28 January 2010 — European Commission v Kingdom of Spain

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/24

         Action brought on 28 January 2010 — European Commission v Kingdom of Spain
   (Case C-48/10)
   2010/C 100/35
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: A. Alcover San Pedro, Agent)

      Defendant: Kingdom of Spain

      Form of order sought

               —

               declare that, by failing to adopt the measures necessary so that the authorities ensure — by granting authorisations in accordance with Articles 6 and 8 or, by adequately revising the conditions and, if appropriate, updating them — that installations are operated in accordance with the requirements laid down in Articles 3, 7, 9, 10, 13, 14(a) and (b), and 15(2) by 30 October 2007 at the latest, unless other specific provisions of Community law are applicable, the Kingdom of Spain has failed to fulfil its obligations under to Article 5(1) of Directive 2008/1/EC (1) of the European Parliament and of the Council of 15 January 2008 concerning integrated pollution prevention and control (‘IPPC Directive’).

               —

               order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

   Under Article 5(1) of Directive 2008/1/EC, the period for complying with the obligation to adapt existing installations to the requirements of the IPPC Directive, by granting an integrated environmental authorisation, lapsed on 30 October 2007.
   On that date, many existing installations continued operating in Spain without that authorisation. Since the commencement of an action based on that infringement, the process of granting environmental authorisations has been speeded up without, however, bringing an end to that infringement within the period prescribed in the reasoned opinion or, according to the information available to the Commission, without bringing an end to it by the present date. According to the information supplied by the national authorities in their reply to the reasoned opinion, 533 existing installations were still operating without the mandatory IPPC authorisation on the date on which the period prescribed in that opinion, for complying with the obligations arising under Article 5(1) of the IPPC Directive, lapsed.
   In those circumstances, it is clear that the Kingdom of Spain has still not fulfilled the obligations arising from that provision.

      (1)  OJ 2008 L 24, p. 8.


title: Case C-116/10: Reference for a preliminary ruling from the Cour de Cassation du Grand-Duché de Luxembourg (Luxembourg) lodged on 3 March 2010 — Etat du Grand-Duché de Luxembourg, Administration de l’Enregistrement et des Domaines v Mr Pierre Feltgen (Administrator in the bankruptcy of the limited liability company BACINO CHARTER COMPANY S.A.), Bacino Charter Company S.A.

text:
               1.5.2010

               EN

               Official Journal of the European Union

               C 113/33

         Reference for a preliminary ruling from the Cour de Cassation du Grand-Duché de Luxembourg (Luxembourg) lodged on 3 March 2010 — Etat du Grand-Duché de Luxembourg, Administration de l’Enregistrement et des Domaines v Mr Pierre Feltgen (Administrator in the bankruptcy of the limited liability company BACINO CHARTER COMPANY S.A.), Bacino Charter Company S.A.
   (Case C-116/10)
   2010/C 113/52
   Language of the case: French

      Referring court

   Cour de Cassation du Grand-Duché de Luxembourg

      Parties to the main proceedings

      Applicants: Etat du Grand-Duché de Luxembourg, Administration de l’Enregistrement et des Domaines

      Defendants: Me Pierre Feltgen (Administrator in the bankruptcy of the limited liability company Bacino Charter Company S.A.), Bacino Charter Company S.A.

      Question referred

   May services provided by the owner of a vessel who, for reward, with a crew, makes it available for natural persons for the purpose of leisure travel on the high seas by those clients, be exempted under Article 15(5) of Sixth Council Directive of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, (1) where those services are considered to be both vessel hire services and transport services?

      (1)  OJ 1977, L 145, p. 1.


title: Judgment of the Court of 17 May 2001 in Case C-450/98 P: International Express Carriers Conference (IECC) v Commission of the European Communities and Others (Appeal — Decision rejecting complaint — Abuse of a dominant position — Postal services — Remail)

text:
C 200/18                 EN                      Official Journal of the European Communities                                       14.7.2001
—     the finance company gives an undertaking to the purchaser that        1.   Dismisses the appeal;
      it will pay to the seller on the purchaser’s behalf the sales price
      advertised and invoiced by the seller;                                2.   Orders International Express Carriers Conference (IECC) to pay
                                                                                the costs.
—     the finance company in fact pays to the seller, pursuant to
      agreements concluded with the seller but of which the purchaser
      is unaware, a sum less than the price advertised and invoiced;        (1) OJ C 48 of 20.2.1999.
      and
—     the purchaser repays to the finance company a sum equal to the
      price advertised and invoiced,
the taxable amount for purposes of calculating the value added tax
payable on that sale consists of the full amount payable by the
purchaser.
                                                                                JUDGMENT OF THE COURT
(1) OJ C 100 of 10.4.1999.                                                                          of 17 May 2001
                                                                            in Case C-450/98 P: International Express Carriers Confer-
                                                                            ence (IECC) v Commission of the European Communities
                                                                                and Others (1)
                                                                            (Appeal — Decision rejecting complaint — Abuse of a
                                                                                dominant position — Postal services — Remail)
                  JUDGMENT OF THE COURT
                                                                                (2001/C 200/32)
                           of 17 May 2001
                                                                                (Language of the case: English)
in Case C-449/98 P: International Express Carriers Confer-
ence (IECC) v Commission of the European Communities                        In Case C-450/98 P: International Express Carriers Conference
                             and Others (1)                                 (IECC), established in Geneva (Switzerland), represented by
                                                                            E. Morgan de Rivery, J. Derenne and M. Cunningham, avocats,
(Appeal — Decision rejecting complaint — Competition —                      appeal against the judgment of the Court of First Instance
                     Postal services — Remail)                              of the European Communities (Third Chamber, Extended
                                                                            Composition) of 16 September 1998 in Joined Cases T-133/95
                                                                            and T-204/95 IECC v Comission [1998] ECR II-3645, seeking
                           (2001/C 200/31)                                  to have that judgment set aside in so far as it relates to Case T-
                                                                            204/95 and paragraphs 78 to 83 of Case T-133/95, the other
                                                                            parties to the proceedings being: Commission of the European
                    (Language of the case: English)                         Communities (Agent: K. Wiedner, assisted by N. Forwood),
                                                                            Deutsche Post AG (avocat: by D. Schroeder), United Kingdom
                                                                            of Great Britain and Northern Ireland, The Post Office and La
In Case C-449/98 P: International Express Carriers Conference               Poste, the Court, composed of: G.C. Rodrı́guez Iglesias,
(IECC), established in Geneva (Switzerland), represented by                 President, A. La Pergola and M. Wathelet (Presidents of
E. Morgan de Rivery, J. Derenne and M. Cunningham, avocats                  Chambers), J.-P. Puissochet, P. Jann, L. Sevón, N. Colneric,
— appeal against the judgment of the Court of First Instance                S. von Bahr and C.W.A. Timmermans (Rapporteur), Judges;
of the European Communities (Third Chamber, Extended                        D. Ruiz-Jarabo Colomer, Advocate General; H. von Holstein,
Composition) of 16 September 1998 in Case T-110/95 IECC                     Deputy Registrar, for the Registrar, has given a judgment on
v Commission [1998] ECR II-3605, seeking to have that                       17 May 2001, in which it:
judgment set aside, the other parties to the proceedings
being Commission of the European Communities, (Agents:                      1.   Dismisses the appeal;
K. Wiedner, assisted by N. Forwood), La Poste (avocat:
H. Lehman), United Kingdom of Great Britain and Northern                    2.   Orders International Express Carriers Conference (IECC) to pay
Ireland, and The Post Office — the Court, composed of:                           the costs.
G.C. Rodrı́guez Iglesias, President, A. La Pergola and M. Wathe-
let (Presidents of Chambers), J.-P. Puissochet, P. Jann, L. Sevón,
N. Colneric, S. von Bahr and C.W.A. Timmermans (Rapporte-                   (1) OJ C 48 of 20.2.1999.
ur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; D. Lou-
terman-Hubeau, Head of Division, for the Registrar, has given
a judgment on 17 May 2001, in which it:


title: Case C-326/05 P: Appeal brought on 26 August 2005 by Industrias Químicas del Vallés, SA against the judgment delivered on 28 June 2005 by the Second Chamber of the Court of First Instance in Case T-158/03 between Industrias Químicas del Vallés, SA and the Commission of the European Communities

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/15

         Appeal brought on 26 August 2005 by Industrias Químicas del Vallés, SA against the judgment delivered on 28 June 2005 by the Second Chamber of the Court of First Instance in Case T-158/03 between Industrias Químicas del Vallés, SA and the Commission of the European Communities
   (Case C-326/05 P)
   (2005/C 271/29)
   Language of the case: Spanish
   An appeal against the judgment delivered on 28 June 2005 by the Second Chamber of the Court of First Instance of the European Communities in Case T-158/03 between Industrias Químicas del Vallés, SA and the Commission of the European Communtiies was brought before the Court of Justice of the European Communities on 26 August 2005 by Industrias Químicas del Vallés, SA, represented by C. Fernández Vicién, I. Moreno-Tapia Rivas and J. Sabater Marotias, abogados.
   The applicant claims that the Court should:

               1.

               Declare that this appeal is admissible and well-founded;

               2.

               Set aside the judgment of the Court of First Instance of 28 June 2005;

               3.

               Grant the application made at first instance seeking the annulment of Commission Decision 2003/308/EC (1) of 2 May 2003 concerning the non-inclusion of metalaxyl in Annex I to Council Directive 91/414/EEC; (2)

               4.

               In the alternative, refer the case back to the Court of First Instance for judgment;

               5.

               In any event, order the Commission to pay all the costs of the present proceedings as well as those incurred as a result of the proceedings before the Court of First Instance and, where appropriate, those relating to the interlocutory proceedings.

         Pleas in law and main arguments

               1.

               First, Industrias Químicas del Vallés, SA (IQV) takes the view that the Court of First Instance (CFI) has distorted the evidence in the proceedings in its analysis of the legal opinion of the Commission concerning the consequences of the withdrawal from the procedure for the evaluation of metalaxyl of the only notifier which submitted a complete dossier.

               2.

               Secondly, IQV takes the view that the CFI has erred in law by rejecting a plea of IQV solely on the basis of an extract from a document to which, as the CFI itself accepts, IQV never had access during the administrative procedure.

               3.

               Thirdly, IQV submits that the CFI erred in law by incorrectly interpreting and applying to the present case the precautionary principle and the principle of proportionality and by upholding the decision of the Commission originally contested on the grounds of public health.

               4.

               Fourthly, IQV submits that the CFI erred in law in its interpretation and application to the present case of the relevant legal framework, in particular the provisions of Directive 91/414/EEC and Regulation 3600/92 on the procedure for the evaluation of active substances contained in plant protection products. In particular, IQV believes that the CFI (i) confused the terms ‘complete dossier’ and ‘additional information’, (ii) wrongly determined that, where there are multiple notifiers in respect of the same substance, each notifier must compile a complete dossier; and (iii) made an incorrect assessment of the role of the rapporteur Member State in the stages following preparation of the study.

               5.

               Fifthly, IQV submits that the CFI erred in law when it held that the Commission did not make a manifest error of assessment by refusing to grant an extension of the time-limit for evaluating metalaxyl. In that regard, the CFI relied on a false premise and stated grounds which were inconsistent with the extensions granted by the Commission in the field concerned.

               6.

               Sixthly, IQV considers that the CFI gave contradictory and anomalous grounds for rejecting a plea of IQV on the basis of reasons for the decision which do not actually appear in the contested decision.

               7.

               Finally, IQV considers that the CFI infringed provisions governing the procedure by failing to have regard to part of the written submissions of IQV in the Report for the Hearing drawn up by the Judge-Rapporteur, without giving any grounds for so doing in the judgment.

      (1)  OJ L 113 of 7.5.2003, p. 8.

      (2)  OJ L 230 of 19.8.1991, p. 1.


title: Case C-401/12 P: Appeal brought on 3 September 2012 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission

text:
               12.1.2013

               EN

               Official Journal of the European Union

               C 9/25

         Appeal brought on 3 September 2012 by the Council of the European Union against the judgment of the General Court (Seventh Chamber) delivered on 14 June 2012 in Case T-396/09 Vereniging Milieudefensie, Stichting Stop Luchtverontreiniging Utrecht v Commission
   (Case C-401/12 P)
   2013/C 9/42
   Language of the case: Dutch

      Parties

   Appellant: Council of the European Union (represented by: M. Moore and K. Michoel, Agents)
   Other parties to the proceedings:

               Vereniging Milieudefensie,

               Stichting Stop Luchtverontreiniging Utrecht, European Commission,

               Kingdom of the Netherlands,

               European Parliament

      Form of order sought

   The Council claims that the Court should:

               —

               set aside the judgment of 14 June 2012 in Case T-396/09;

               —

               dismiss the action of the applicants at first instance in its entirety;

               —

               order the applicants at first instance jointly and severally to pay the Council’s costs in the present case.

      Pleas in law and main arguments

   The Council takes the view that the judgment of the General Court in the abovementioned case is vitiated by two errors of law. The Council is of the view that the General Court did not correctly interpret and apply the ‘Nakajima’ (1) and ‘Fediol’ (2) case-law. Consequently, the Council is of the view that the General Court erred in finding that it could review the legality of Regulation (EC) No 1367/2006 (3) in the light of the Aarhus Convention (4) on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters.
   Furthermore, the Council is of the view that the choice made by the legislature in Regulation No 1367/2006 is any event fully consistent with the Aarhus Convention. In this respect, the General Court’s interpretation of Article 9(3) of the Aarhus Convention is incorrect, in so far as the General Court disregards the discretion afforded to the contracting parties.
   The Council therefore requests the Court of Justice to set aside the judgment of the General Court in Case T-396/09, and to give final judgment in the matter by dismissing the action of the applicants at first instance in its entirety.

      (1)  Case C-69/89 Nakajima v Council [1991] ECR I-2169.

      (2)  Case 70/87 Fediol v Commission [1989] ECR 1825.

      (3)  Regulation of the European Parliament and of the Council of 6 September 2006 on the application of the provisions of the Aarhus Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters to Community institutions and bodies (OJ 2006 L 264, p. 13).

      (4)  Aarhus Convention of 25 June 1998 on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters, approved by Council Decision 2005/370/EC of 17 February 2005 (OJ 2005 L 124, p. 1).


title: Case C-471/09 P: Appeal brought on 26 November 2009 by Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities

text:
               13.2.2010

               EN

               Official Journal of the European Union

               C 37/11

         Appeal brought on 26 November 2009 by Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya against the judgment of the Court of First Instance (Fifth Chamber, extended composition) delivered on 9 September 2009 in Joined Cases T-227/01 to T-229/01 and T-265/01, T-266/01 and T-270/01 Territorio Histórico de Álava — Diputación Foral de Álava and Comunidad Autónoma del País Vasco — Gobierno Vasco and Others v Commission of the European Communities
   (Case C-471/09 P)
   2010/C 37/13
   Language of the case: Spanish

      Parties

      Appellant: Territorio Histórico de Vizcaya — Diputación Foral de Vizcaya

      (represented by: I. Sáenz-Cortabarría Fernández and M. Morales Isasi, lawyers)

      Other parties to the proceedings: Comunidad Autónoma del País Vasco — Goberierno Vasco, Territorio Histórico de Álava — Diputación Foral de Álava, Territorio Histórico de Guipúzcoa — Diputación Foral de Guipúzcoa, Confederación Empresarial Vasca (Confebask), Cámara Oficial de Comercio, Industria y Navegación de Vizcaya, Cámera Oficial de Comercio e Industria de Álava, Cámara Oficial de Comercio, Industria y Navegación de Guipúzcoa, Commission of the European Communities and Comunidad Autónoma de la Rioja

      Form of order sought

               —

               declare the appeal to be admissible and well founded;

               —

               set aside the judgment under appeal;

               —

               grant the form of order sought at first instance, that is the alternative claim to annul Article 3 of the contested decision;

               —

               alternatively, refer the case back to the Court of First Instance and, order it to examine the evidence rejected;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal and the intervener, the Comunidad Autónoma de la Rioja to pay the costs of the proceedings at first instance.

      Pleas in law and main arguments

               1.

               The CFI erred in law by holding, in this case, that there are no exceptional circumstances which give rise to a legitimate expectation that the tax measure at issue is lawful, so as to preclude the recovery of the aid in accordance with Article 14(1) of Regulation No 659/1999 (1) as regards the principle of the protection of legitimate expectations. The CFI distorted the issues in the case and infringed the rule that the parties should be heard. It also misinterpreted the case-law concerning the duty to give reasons for a decision. The Court of First Instance erred in law by failing to comply with the procedural rules relating to the assessment of evidence in that it disregarded the substantive content of documents submitted for the purposes of the written procedure.
               Neither the formal difference between the tax measure at issue and the measure which is the subject of Decision 93/337 (2), nor the fact that the Commission could have justified the selectivity criterion on information other than that which is explicitly mentioned in Decision 93/337, nor the finding of incompatibility in Decision 93/337, constitute sufficient reasons in law for the CFI not to determine whether there existed an exceptional circumstance that by itself or in combination with other circumstances in this case could preclude the Commission from ordering the recovery of the aid to which the contested decision relates.
               By holding that the measures at issue in Joined Cases T-30/01 to T-32/01 and T-86/02 to T-88/02 are not analogous to the tax measure at issue for technical tax reasons and the because of amount of the subsidy, the CFI has distorted the issues between the parties, has disregarded the rule that the parties should be heard and has clearly misinterpreted the case-law specifically relating to the duty to state reasons.
               The CFI erred in law by holding that the Commission's attitude with respect to the tax exemption and/or the 1993 tax credit — which, as is clear from the from the case file, has not been assessed by the CFI, contrary to the Rules of Procedure — does not constitute an exceptional circumstance which could have justified some kind of legitimate expectation that the tax measure was lawful which would have precluded the recovery of the aid under Article 14(1) of Regulation on the ground that it would be contrary to the principle of the protection of legitimate expectations.

               2.

               The CFI erred in law by failing to comply with Article 14(1) of Regulation No 659/1999 with respect to the principle of proportionality which precludes the recovery of investment aid that does not exceed the limit for regional aid.
               The CFI has breached the general principle of proportionality by not finding that the Commission breached that principle by requiring the recovery of all the amounts granted in accordance with the tax credit of 45 % of the investments rather than only the amounts which exceeded the maximum limit for regional aid in the Basque Country.

               3.

               The CFI erred in law by failing to comply with the procedural rules regarding the assessment of evidence and by deciding not to require disclosure of the evidence requested by the applicant with respect to certain Commission documents that, in the light of the arguments used by the CFI in order to dismiss the applicant's application, are essential to the defence of its interests. The CFI also infringed the right to a fair trial, the principle of equality of arms and the rights of defence.
               The CFI, by failing to order the disclosure of the evidence requested, has infringed the fundamental right to a fair trial to which the applicant is entitled, by refusing to assess evidence which is essential to the applicant's case thereby infringing its rights of defence, since its application was dismissed on the ground that it had not proved what it specifically sought to establish with the evidence which was not produced: if not the Commission's final position with respect to the complaint of 1994 against the tax rules of 1993 (including a tax credit), which are measures which are essentially the same as the contested measure, which rejected that complaint, then at least the attitude of the Commission which would constitute an exceptional circumstance in so far as its conduct gave rise to a legitimate expectation that the 1993 tax measures were lawful, which led to the adoption of the contested tax measure.

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

      (2)  Commission Decision of 10 May 1993 concerning a scheme of tax concessions for investment in the Basque country (OJ 1993 L 134, p. 25).


title: Case C-206/08: Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH (Procurement procedures of entities operating in the water, energy, transport and postal services sectors — Public service for the distribution of drinking water and the treatment of sewage — Service concession — Definition — Transfer to the supplier of the risk connected with operating the service in question)

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/20

         Judgment of the Court (Third Chamber) of 10 September 2009 (Reference for a preliminary ruling from the Thüringer Oberlandesgericht (Germany)) — Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha) v Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH
   (Case C-206/08) (1)

   (Procurement procedures of entities operating in the water, energy, transport and postal services sectors - Public service for the distribution of drinking water and the treatment of sewage - Service concession - Definition - Transfer to the supplier of the risk connected with operating the service in question)
   2009/C 267/34
   Language of the case: German

      Referring court

   Thüringer Oberlandesgericht

      Parties to the main proceedings

      Applicant: Wasser- und Abwasserzweckverband Gotha und Landkreisgemeinden (WAZV Gotha)

      Defendant: Eurawasser Aufbereitungs- und Entsorgungsgesellschaft mbH

      Intervening parties: Stadtwirtschaft Gotha GmbH, Wasserverband Lausitz Betriebsführungs GmbH (WAL)

      Re:

   Reference for a preliminary ruling — Thüringer Oberlandesgericht — Interpretation of Article 1(2)(a) and (d) and 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors (OJ 2004 L 134, p. 1) — Call for bids for the provision, in the form of a public service concession, of a service to the public in respect of the production, transport and distribution of drinking water and in respect of the disposal and treatment of sewage — Criteria for distinguishing a public service contract from a public service concession

      Operative part of the judgment

   In relation to a contract for the supply of services, the fact that the supplier does not receive consideration directly from the contracting authority, but is entitled to collect payment under private law from third parties, is sufficient for the contract in question to be categorised as a ‘service concession’ within the meaning of Article 1(3)(b) of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, where the supplier assumes all, or at least a significant share, of the operating risk faced by the contracting authority, even if that risk is, from the outset, very limited on account of the detailed rules of public law governing that service.

      (1)  OJ C 247, 27.9.2008.


title: Case T-113/12: Judgment of the General Court of 21 January 2014 — Bial-Portela v OHIM — Probiotical (PROBIAL) (Community trade mark — Opposition proceedings — Application for Community figurative mark PROBIAL — Earlier national, international and Community figurative marks, emblem, business name and logo Bial — Relative grounds for refusal — Article 8(1)(b) and 8(4) and (5) of Regulation (EC) No 207/2009)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/8

         Judgment of the General Court of 21 January 2014 — Bial-Portela v OHIM — Probiotical (PROBIAL)
   (Case T-113/12) (1)

   (Community trade mark - Opposition proceedings - Application for Community figurative mark PROBIAL - Earlier national, international and Community figurative marks, emblem, business name and logo Bial - Relative grounds for refusal - Article 8(1)(b) and 8(4) and (5) of Regulation (EC) No 207/2009)
   2014/C 61/13
   Language of the case: English

      Parties

      Applicant: Bial-Portela & Ca, SA (São Mamede do Coronado, Portugal) (represented by: B. Braga da Cruz and J. Pimenta, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Probiotical SpA (Novara, Italy) (represented by: I. Kuschel, lawyer)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 20 December 2011 (Case R 1925/2010-4) concerning opposition proceedings between Portela & Ca, SA and Probiotical SpA.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Bial-Portela & Ca, SA to pay the costs.

      (1)  OJ C 165, 9.6.2012.


title: Action brought on 31 October 1996 by the Commission of the European Communities against the Kingdom of Belgium (Case C-356/96)

text:
No C 370/ 10               EN |                    Official Journal of the European Communities                                       7 . 12 . 96
seised second declines jurisdiction, despite the parties in the               Action brought on 31 October 1996 by the Commission of
two cases not being strictly identical , on the ground that the               the European Communities against the Kingdom of
procedural law aipplicable before the court seised first                                                        Belgium
' restricts the opportunity for an insurer to be party to                                                 ( Case C-357/96 )
proceedings in which the insured is involved' so that the
insurer of the vessel is in fact also involved, through the                                                 ( 96/C 370/23 )
intermediary of the insured, in the case brought first ?
                                                                              An action against the Kingdom of Belgium was brought
                                                                              before the Court of Justice of the European Communities
                                                                              on 31 October 1996 by the Commission of the European
                                                                              Communities, represented by Gotz zur Hausen, Legal
                                                                              Adviser, acting as Agent, with an address for service in
Action brought on 31 October 1996 by the Commission of                        Luxembourg at the office of Carlos Gomez de la Cruz,
the European Communities against the Kingdom of                               Wagner Centre, Kirchberg.
                                  Belgium
                            ( Case C-356/96 )                                 The Commission of the European Communities claims that
                                                                              the Court should :
                              ( 96/C 370/22 )
                                                                              — declare that, by failing to adopt the laws, regulations
An action against the Kingdom of Belgium was brought                                 and administrative measures necessary in order to
before the Court of Justice of the European Communities                              comply with Commission Directive 94/ 15/EEC of
on 31 October 1996 by the Commission of the European                                 15 April 1994 ( ] ) adapting to technical progress for the
Communities, represented by Gotz zur Hausen, Legal                                   first time Council Directive 90/220/EEC ( 2 ) on the
Adviser, acting as Agent, with an address for service in                             deliberate release into the environment of genetically
Luxembourg at the office of Carlos Gomez de la Cruz,                                 modified organisms, the Kingdom of Belgium has failed
Wagner Centre, Kirchberg.                                                            to fulfil its obligations under that Directive,
                                                                              — order the Kingdom of Belgium to pay the costs .
The Commission of the European Communities claims that
the Court should :
                                                                              Pleas in law and main arguments adduced in support:
— declare that, by failing to adopt the laws, regulations                     The pleas in law and main arguments are the same as in
      and administrative measures necessary in order to                       Case C-356/96 ( 3 ); the time limit for transposition expired
      comply with Commission Directive 91 /410/EEC of                         on 30 June 1994 .
      22 July 1991 ( ] ) adapting to technical progress for the
       14th time Council Directive 67/548/EEC ( 2 ) on the                    (!) OJ No L 103 , 22 . 4 . 1994, p . 20 .
      approximation of laws, regulations and administrative                   ( 2 ) OJNoL 117, 8 . 5 . 1990 , p . 15 .
      provisions relating to the classification, packaging and                ( 3 ) See Case C-356/96 above .
      labelling of dangerous substances, and/or by failing to
      communicate those measures, the Kingdom of Belgium
      has failed to fulfil its obligations under that Directive,
— order the Kingdom of Belgium to pay the costs.                              Action brought on 31 October 1996 by the Commission of
                                                                              the European Communities against the Kingdom of
                                                                                Belgium
Pleas in law and main arguments adduced in support:                                                         Case C-358/96 )
                                                                                ( 96/C 370/24 )
In view of the binding nature of directives, as provided for
in the third paragraph of Article 189 of the EC Treaty, and
in view of the first paragraph of Article 5 of that Treaty,                   An action against the Kingdom of Belgium was brought
Member States to whom a directive is addressed are obliged                    before the Court of Justice of the European Communities
to achieve the results pursued by it within the time limit                    on 31 October 1996 by the Commission of the European
prescribed therein, that is to say, to transpose its provisions               Communities, represented by Gotz zur Hausen, Legal
into national law in such a way that it produces its full                     Adviser, acting as Agent, with an address for service in
effect as soon as the time limit for transposition expires.                   Luxembourg at the office of Carlos Gomez de la Cruz,
That time limit expired on 1 August 1992 but the Kingdom                      Wagner Centre, Kirchberg.
of Belgium has not adopted the necessary measures .
                                                                              The Commission of the European Communities claims that
                                                                              the Court should :
f 1 ) OJ No L 228 , 17. 8 . 1991 , p . 67.
( 2 ) OJ , English Special Edition ( 1967 ), p. 234 .
                                                                              — declare that, by failing to adopt the laws, regulations
                                                                                and administrative measures necessary in order to


title: Case C-502/10: Judgment of the Court (Third Chamber) of 18 October 2012 (reference for a preliminary ruling from the Raad van State — Netherlands) — State Secretary van Justitie v Mangat Singh (Directive 2003/109/EC — Status of third-country nationals who are long-term residents — Scope — Article 3(2)(e) — Residence based on a formally limited permit)

text:
               8.12.2012

               EN

               Official Journal of the European Union

               C 379/4

         Judgment of the Court (Third Chamber) of 18 October 2012 (reference for a preliminary ruling from the Raad van State — Netherlands) — State Secretary van Justitie v Mangat Singh
   (Case C-502/10) (1)

   (Directive 2003/109/EC - Status of third-country nationals who are long-term residents - Scope - Article 3(2)(e) - Residence based on a formally limited permit)
   2012/C 379/06
   Language of the case: Dutch

      Referring court

   Raad van State

      Parties to the main proceedings

      Applicant: Staatssecretaris van Justitie

      Defendant: Mangat Singh

      Re:

   Reference for a preliminary ruling — Raad van State — Interpretation of Article 3(2)(e) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44) — Concept of a ‘formally limited residence permit’ — Residence permit not offering any prospect of a residence permit of indefinite duration, but which can be extended indefinitely

      Operative part of the judgment

   Article 3(2)(e) of Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents must be interpreted as meaning that the concept of ‘residence permit [which] has been formally limited’ does not include a fixed-period residence permit, granted to a specific group of persons, the validity of which may be extended indefinitely without however offering any prospect of a residence permit of indefinite duration where such a formal limitation does not prevent the long-term residence of the third country national in the Member State concerned, that being a matter for the referring court to ascertain.

      (1)  OJ C 346, 18.12.2010.


title: Case C-320/06: Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Belgium

text:
               2.9.2006

               EN

               Official Journal of the European Union

               C 212/26

         Action brought on 20 July 2006 — Commission of the European Communities v Kingdom of Belgium
   (Case C-320/06)
   (2006/C 212/45)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: J. Enegren and G. Rozet, acting as Agents)

      Defendant: Kingdom of Belgium
   Form of order sought

               —

               Declare that, by not adopting, and in any event by not notifying to the Commission, the laws, regulations and administrative provisions necessary to comply with Directive 2002/14/EC of the European Parliament and of the Council of 11 March 2002 establishing a general framework for informing and consulting employees in the European Community (1), the Kingdom of Belgium has failed to fulfil its obligations under Article 11 of that directive;

               —

               Order the Kingdom of Belgium to pay the costs.

         Pleas in law and main arguments
   The period for transposition of Directive 2002/14/EC into domestic law expired on 23 March 2005.

      (1)  OJ L 80, p. 29.


title: Case C-479/09 P: Appeal brought on 26 November 2009 by Evets Corp. against the judgment of the Court of First Instance (First Chamber) delivered on 23 September 2009 in Joined Cases T-20/08 and T-21/08: Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/39

         Appeal brought on 26 November 2009 by Evets Corp. against the judgment of the Court of First Instance (First Chamber) delivered on 23 September 2009 in Joined Cases T-20/08 and T-21/08: Evets Corp. v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-479/09 P)
   2010/C 24/69
   Language of the case: English

      Parties

      Appellant: Evets Corp. (represented by: S. Ryan, Solicitor)

      Other party to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs)

      Form of order sought

   The appellant claims that the Court should:

               —

               Annul the decision of the Court of First Instance;

               —

               Declare that the application for restitutio in integrum was brought within the time-limits prescribed by Article 78(2) of Regulation N. 40/94 (1);

               —

               Refer the matters back to the CFI so that that Court may in turn refer the case to the Board of Appeal for it to rule on the substantive issue as to whether all due care was taken to renew the trade marks in question;

               —

               Order OHIM to pay the costs before the Court of Justice and the Court of First Instance.

      Pleas in law and main arguments

               1.

               This appeal concerns an application for restitutio in integrum under Article 78(2) of Council regulation (EC) No 40/94 (the Community Trade Mark Regulation). The trade mark in issue had lapsed by reason of non-payment of renewal fees.

               2.

               The trade mark proprietor had delegated responsibility for the payment of renewal fees to a third party. However as a consequence of an unintended error, the renewal payment was not made by the due date.

               3.

               OHIM issued notifications of cancellation to the legally qualified representative of the trade mark proprietor, who was not the third party responsible for the payment of renewal fees. The representative forwarded these to the trade mark proprietor who received them several days later.

               4.

               Subsequently the trade mark proprietor filed an application for restitutio in integrum pursuant to Article 78(2). This application was filed less than two months after the proprietor itself received the notifications of cancellation, but more than two months after the legally qualified representative had received them.

               5.

               Article 78(2) requires that the application must be filed in writing within two months from the removal of the cause of non-compliance with the time limit. The issue that arises on this appeal concerns how the date from which time begins to run should be identified.

               6.

               The proprietor contends that the relevant date is the date on which it received the notification. It had assumed responsibility itself, through a third party, to pay renewal fees. It only discovered the error, and had the opportunity to remove the cause of non-compliance, when it actually received such notification.

               7.

               However the Court of First Instance upheld the contention of OHIM that the relevant date was the date of the receipt by the proprietor's legally qualified representative, to which OHIM had sent the notification. OHIM relied upon the provisions of rule 77 which provides that ‘Any notification or other communication addressed by the Office to the duly authorized representative shall have the same effect as if it had been addressed to the represented person.’

               8.

               The proprietor contends on this appeal that:

                           (i)

                           The purpose of the deeming provisions in rule 77 is to provide that OHIM has discharged its obligations to notify a party when it sends a notification to a party's representative in relation to matters for which that representative has authority to act. OHIM is not then obliged to do anything further. But this is not a relevant consideration in the present case.

                           (ii)

                           The ‘cause of non-compliance’ with the time limit is removed, in the case of time limits for payment of renewal fees, when the trade mark proprietor itself, and/or the person specifically delegated by it as responsible for payment, actually becomes aware of the unintended failure to pay. Any other conclusion would render the relevant provision unworkable: in particular a professional representative will always know of and be expected to be aware of the relevant time limits so that the sending of a notification by OHIM to him/her would ordinarily be irrelevant anyway.

                           (iii)

                           Payment of renewal fees is a simple financial transaction that does not require legal representation. So a party can pay the fees itself or delegate any other person to do so. Where the ‘representative’ of a party — who acted for the party in proceedings before the Office — is not also under a separate responsibility to pay renewal fees, then notification of non-payment to that representative is not relevant; it is not notice to the party and it cannot be so deemed. That representative is not legally responsible for acting on such notification (though may transmit it to his client as a matter of professional courtesy).

                           (iv)

                           On facts such as the present facts, a representative for other purposes is not a ‘duly authorized representative’ for the purpose of payment of renewal fees. Notice to him/her therefore does not satisfy rule 77 and does not bring the ‘deeming’ provision into play.

                           (v)

                           In summary, the relevant person to be considered is the one with responsibility for taking the act in question. Only when that person becomes aware of the non-compliance can the relevant time period for an application begin to run.

                           (vi)

                           While the provisions of the EPC are not strictly binding in community law, they must clearly be highly persuasive. Where there is EPO case law on the same wording, it is highly desirable that it be construed in the same way. If interpreted differently, then one or the other interpretation must be wrong. The appellant submits that the parallel decisions in the EPO are correct and that their reasoning is correct.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark
   OJ L 11, p. 1