title: Case T-437/08: Judgment of the General Court of 15 December 2011 — CDC Hydrogene Peroxide v Commission (Access to documents — Regulation (EC) No 1049/2001 — Statement of contents of the administrative file relating to a cartel proceeding — Refusal of access — Exception concerning the protection of the commercial interests of a third party — Exception relating to protection of the purpose of inspections, investigations and audits)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/18

         Judgment of the General Court of 15 December 2011 — CDC Hydrogene Peroxide v Commission
   (Case T-437/08) (1)

   (Access to documents - Regulation (EC) No 1049/2001 - Statement of contents of the administrative file relating to a cartel proceeding - Refusal of access - Exception concerning the protection of the commercial interests of a third party - Exception relating to protection of the purpose of inspections, investigations and audits)
   2012/C 32/34
   Language of the case: German

      Parties

      Applicant: CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide) (Brussels, Belgium) (represented initially by R. Wirtz, subsequently by R. Wirtz and S. Echement and finally by T. Funke, A. Kirschstein and D. Stein, lawyers)

      Defendant: European Commission (represented initially by P. Costa de Oliveira, A. Antoniadis and O. Weber, and subsequently by A. Bouquet, P. Costa de Oliveira and A. Antoniadis, acting as Agents)

      Intervener in support of the applicant: Kingdom of Sweden (represented by: A. Falk, K. Petkovska and S. Johannesson, acting as Agents)

      Intervener in support of the defendant: Evonik Degussa GmbH (Essen, Germany) (represented initially by C. Steinle, and then by C. Steinle and M. Holm-Hadulla, lawyers)

      Re:

   Application for annulment of Commission decision SG.E3/MM/psi D(2008) 6658 of 8 August 2008 refusing full access to the statement of contents of the case-file in Case COMP/F/38.620 — Hydrogen peroxide and perborate.

      Operative part of the judgment

   The Court:

               1.

               Annuls Decision SG.E3/MM/psi D(2008) 6658 of the Commission of 8 August 2008 refusing full access to the statement of contents of the case-file in Case COMP/F/38.620 — Hydrogen peroxide and perborate;

               2.

               Orders the European Commission to bear its own costs and pay those incurred by CDC Hydrogene Peroxide Cartel Damage Claims (CDC Hydrogene Peroxide);

               3.

               Orders the Kingdom of Sweden and Evonik Degussa to pay their own costs.

      (1)  OJ C 313, 6.12.2008.


title: Case T-17/09: Judgment of the General Court of 22 May 2012 — Evropaïki Dynamiki v Commission (Public services contracts — Tender procedure — Provision of informatics services for an electronic exchange of social security information project (EESSI project) in the field of the coordination of social security for persons mobile in Europe — Rejection of bid submitted by a tenderer — Award of the contract — Obligation to state the reasons on which the decision is based — Transparency — Equal treatment — Manifest error of assessment — No interest in bringing proceedings — Non contractual liability)

text:
               25.8.2012

               EN

               Official Journal of the European Union

               C 258/15

         Judgment of the General Court of 22 May 2012 — Evropaïki Dynamiki v Commission
   (Case T-17/09) (1)

   (Public services contracts - Tender procedure - Provision of informatics services for an electronic exchange of social security information project (EESSI project) in the field of the coordination of social security for persons mobile in Europe - Rejection of bid submitted by a tenderer - Award of the contract - Obligation to state the reasons on which the decision is based - Transparency - Equal treatment - Manifest error of assessment - No interest in bringing proceedings - Non contractual liability)
   2012/C 258/24
   Language of the case: English

      Parties

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

      Defendant: European Commission (represented by: N. Bambara and E. Manhaeve, Agents, and initially by W. Sparks, Solicitor, subsequently by E. Petritsi, lawyer, and latterly by O. Graber-Soudry, Solicitor)

      Re:

   Application, first, for annulment of the Commission’s decision rejecting the tender submitted by the applicant in respect of the call for tenders VT/2008/019 EMPL EESSI for the provision of informatics products and services for the EESSI project (OJ 2008/S 111–148 213) and of the decision to award the contract to another tenderer and, secondly, for damages.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to pay the costs.

      (1)  OJ C 82, 4.4.2009.


18.3.2000             EN                Official Journal of the European Communities                                     C 79/21
       Removal from the register of Case C-337/99 (1)                    Removal from the register of Case C-436/99 P (1)
                        (2000/C 79/42)                                                      (2000/C 79/45)
By order of 9 December 1999 the President of the Court of          By order of 13 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal        Justice of the European Communities has ordered the removal
from the register of Case-337/99: Commission of the European       from the register of Case C-436/99 P: Karl Meyer v Commission
Communities v Kingdom of Belgium.                                  of the European Communities.
(1) OJ C 314 of 30.10.1999.                                        (1) OJ C 34 of 5.2.2000.
       Removal from the register of Case C-115/99 (1)
                                                                          Removal from the register of Case C-252/98 (1)
                        (2000/C 79/43)
                                                                                (2000/C 79/46)
By order of 12 January 2000 the President of the Court of
Justice of the European Communities has ordered the removal        By order of 18 January 2000 the President of the Court of
from the register of Case C-115/99: Kingdom of Sweden v            Justice of the European Communities has ordered the removal
Council of the European Union.                                     from the register of Case C-252/98: Commission of the
                                                                   European Communities v French Republic.
(1) OJ C 188 of 3.7.1999.
                                                                   (1) OJ C 278 of 5.9.1998.
       Removal from the register of Case C-461/98 (1)
                        (2000/C 79/44)                                    Removal from the register of Case C-272/99 (1)
By order of 13 January 2000 the President of the Court of                                   (2000/C 79/47)
Justice of the European Communities has ordered the removal
from the register of Case C-461/98: Commission of the              By order of 19 January 2000 the President of the Court of
European Communities v Republic of Austria.                        Justice of the European Communities has ordered the removal
                                                                   from the register of Case C-272/99: Commission of the
(1) OJ C 48 of 20.2.1999.                                          European Communities v Grand Duchy of Luxembourg.
                                                                   (1) OJ C 281 of 2.10.1999.


title: Case C-266/00: Action brought on 30 June 2000 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 247/26                 EN                    Official Journal of the European Communities                                     26.8.2000
C.    Does it make any difference for the answer to Question B                 chemical fertilisers. The provisions invoked by the Luxem-
      whether synonyms exist for each of the component parts                   bourg authorities (relating respectively to the fertiliser
      of the sign, with the result that competitors of the                     trade and to water management and protection) are of
      applicant for registration who wish to make it clear to the              too general a nature and do not provide farmers with
      public that their products too contain the combination of                sufficiently precise information as to the way in which
      qualities indicated by the new word can reasonably also                  they are to operate with regard to the land application of
      do so by using those synonyms?                                           chemical fertilisers with a view to avoiding pollution of
                                                                               surface waters.
(1) OJ 1989 L 40, p. 1.
                                                                          —    (As regards the land application of organic fertilisers in
                                                                               such a way as to take account of sloping ground)
                                                                               Article 5 of the Grand-Ducal regulation of 20 September
                                                                               1994, to which the Luxembourg authorities refer, does
                                                                               not take account of sloping ground independently of
                                                                               climatic conditions, contrary to the obligation laid down
                                                                               in Article 5(4) in conjunction with point 2 in part A
Action brought on 30 June 2000 by the Commission of
                                                                               of Annex II and point 3(a) in Annex III to Directive
the European Communities against the Grand Duchy of
                                                                               91/676/EEC.
                            Luxembourg
                          (Case C-266/00)                                 —    (As regards the land application of organic fertilisers in
                                                                               such a way as to take account of climatic conditions)
                          (2000/C 247/40)
                                                                               Inasmuch as, given the climatic situation in the Benelux
                                                                               countries, it is established that measures are necessary to
An action against the Grand Duchy of Luxembourg was                            limit land application in the event of snow and that there
brought before the Court of Justice of the European Communi-                   exists no objective reason to believe that the feared
ties on 30 June 2000 by the Commission of the European                         pollution risks in the event of land application on snow-
Communities, represented by Michel Nolin, of its Legal Service,                covered ground are lower when the snow conditions last
with an address for service in Luxembourg at the office of                     for less than 24 hours, the provisions of Article 5, point
Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre,                 A(1)(a), fourth indent, of the Grand-Ducal regulation of
Kirchberg.                                                                     24 September 1994 must be regarded as contrary to
                                                                               Article 5(4) in conjunction with point 3 in part A of
The Commission of the European Communities claims that                         Annex II to Directive 91/676/EEC.
the Court should:
                                                                          —    (As regards the implementation of adequate monitoring
—     declare that, by failing to adopt all the laws, regulations              programmes)
      and administrative measures necessary in order to comply
      with Article 5(4) and (6) and Article 10(1) in conjunction
      with part A of Annex II, point 3 of Annex III and point                  In the Commission’s view, Luxembourg does not have a
      4(e) of Annex V to Council Directive 91/676/EEC of                       monitoring network covering all its surface waters and
      12 December 1991 concerning the protection of waters                     groundwater subject to intensive farming which permits
      against pollution caused by nitrates from agricultural                   an objective evaluation of the extent of pollution and
      sources (1), the Grand Duchy of Luxembourg has failed to                 of the impact of action programmes, as required by
      fulfil its obligations under that directive;                             Article 5(6) of the directive. More generally, the Com-
                                                                               mission has been provided with no evidence showing the
—     order the Grand Duchy of Luxembourg to pay the costs.                    existence of any monitoring programme. Lastly, the
                                                                               competent authorities have not yet finalised any means
                                                                               of evaluating the effectiveness of the action programmes,
                                                                               and are thus unable to comply with the evaluation
Pleas in law and main arguments                                                obligation provided for in the first subparagraph of
                                                                               Article 5(6) of the directive.
—     (As regards the contents of action programmes and the
      failure to take chemical fertilisers into account)
      The Grand-Ducal regulation of 20 September 1994 is                  (1) OJ L 375 of 31.12.1991, p. 1.
      solely concerned with the use in agriculture of organic
      fertilisers, and the Luxembourg authorities have not
      adopted any provision in order to comply with all the
      obligations laid down in point 1(3) of Annex III and
      part A of Annex II to Directive 91/676/EEC as regards


title: Judgment of the Court of First Instance of 9 September 1999 in Case T-127/98, UPS Europe SA v Commission of the European Communities (Competition - Action for failure to act - Commission's obligation to investigate - Reasonable period)

text:
C 314/8                  EN                      Official Journal of the European Communities                                        30.10.1999
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                     JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 9 September 1999
                                                                                of 9 September 1999
in Case T-110/98: RJB Mining plc v Commission of the
                    European Communities (1)                                in Case T-127/98, UPS Europe SA v Commission of the
                                                                                European Communities (1)
(ECSC Treaty — State aid — Operating aid — Authoris-
ation ex post facto of aid already paid — Improvement of
viability of recipient undertakings for the purpose of                      (Competition — Action for failure to act — Commission’s
            Article 3 of Decision No 3632/93/ECSC)                                   obligation to investigate — Reasonable period)
                           (1999/C 314/18)                                                             (1999/C 314/19)
                    (Language of the case: English)
                                                                                (Language of the case: English)
In Case T-110/98: RJB Mining plc, established in Harworth,
United Kingdom, represented by Mark Brealey, Barrister, of the
Bar of England and Wales, and Jonathan Lawrence, Solicitor,                 In Case T-127/98: UPS Europe SA, established in Brussels,
with an address for service in Luxembourg at the Chambers of                represented by Tom R. Ottervanger, of the Rotterdam Bar, and
Arendt and Medernach, 8-10 Rue Mathias Hardt, v Com-                        Dirk Arts, of the Brussels Bar, with an address for service in
mission of the European Communities (Agents: Paul F. Nemitz                 Luxembourg at the chambers of Loeff, Claeys and Verbeke,
and Nicholas Khan), supported by Federal Republic of German,                5 Rue Charles Martel v Commission of the European Com-
(Agents: Claus-Dieter Quassowski and Michael Schütte),                      munities (Agents: Barry Doherty and Klaus Wiedner) — Appli-
Kingdom of Spain (Agent: Rosario Silva de Lapuerta) and RAG                 cation for a declaration under Article 175 of the EC Treaty
Aktiengesellschaft, established in Essen, Germany represented               (now Article 232 EC) that the Commission has failed to act by
by Sven B. Völcker, Rechtsanwalt, Berlin, with an address for               not having delivered a decision on the applicant’s complaint
service in Luxembourg at the Chambers of Marc Loesch, 11                    lodged under Article 3(2) of Regulation No 17 of the Council
Rue Goethe — application for annulment of Commission                        of 6 February 1962 — First Regulation implementing
Decision 98/687/ECSC of 10 June 1998 on German aid to the                   Articles 85 and 86 of the Treaty (OJ, English Special Edition
coal industry for 1997 (OJ 1998 L 324, p. 30) — the Court                   1959-62, p. 87) objecting to certain anti-competitive practices
of First Instance (First Chamber, Extended Composition)                     on the part of Deutsche Post AG, the Court of First Instance
composed of B. Vesterdorf, President, C.W. Bellamy, J. Pirrung,             (Fourth Chamber), composed of R.M. Moura Ramos, President,
A.W.H. Meij and M. Vilaras, Judges; A. Mair, Administrator,                 V. Tiili and P. Mengozzi, Judges; B. Pastor, Principal Adminis-
for the Registrar, has given a judgment on 9 September 1999,                trator, for the Registrar, has given a judgment on 9 September
in which it:                                                                1999, in which it:
1. Declares that the plea based on breach of the alleged prohibition        1. Declares that the Commission has failed to fulfil its obligations
     on giving ex post facto approval to aid paid without prior                  under the EC Treaty by failing either to initiate a procedure
     approval is unfounded;                                                      against the person who is the subject of the complaint lodged by
                                                                                the applicant on 7 July 1994 or to adopt a definitive decision
2. Declares that the plea of infringement of Article 3 of Commission             rejecting that complaint following the observations of 2 February
     Decision No 3632/93/ECSC of 28 December 1993 estab-                         1998 on the notification to the applicant under Article 6 of
     lishing Community rules for State aid to the coal industry is               Regulation No 99/63/EEC of the Commission of 25 July 1963
     unfounded;                                                                  on the hearings provided for in Article 19(1) and (2) of Council
                                                                                Regulation No 17;
3. Dismisses the application in so far as it is based on those two
     pleas;
                                                                            2. For the rest, dismisses the application;
4. Invites the parties to state their views, within a period to be fixed
     by the President of the Court of First Instance, on the further        3. Orders the Commission to pay the costs.
     steps to be taken in the proceedings;
5. Reserves the costs.
                                                                            (1) OJ C 340 of 7.11.1998.
(1) OJ C 299 of 26.9.1998.


title: Case C-521/13 P: Appeal brought on 1 October 2013 by Think Schuhwerk GmbH against the judgment of the General Court (Seventh Chamber) delivered on 11 July 2013 in Case T-208/12 Think Schuhwerk GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               23.11.2013

               EN

               Official Journal of the European Union

               C 344/52

         Appeal brought on 1 October 2013 by Think Schuhwerk GmbH against the judgment of the General Court (Seventh Chamber) delivered on 11 July 2013 in Case T-208/12 Think Schuhwerk GmbH v Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-521/13 P)
   2013/C 344/90
   Language of the case: German

      Parties

      Appellant: Think Schuhwerk GmbH (represented by: M. Gail, Rechtsanwalt)

      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:

               —

               set aside the judgment of the General Court of 11 July 2013 in Case T-208/12;

               —

               grant the form of order sought at first instance;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs.

      Grounds of appeal and main arguments

   The grounds of appeal put forward are, essentially, as follows:
   1.   Infringement of the right to be heard

   In the judicial proceedings, the defendant did not submit a response to the application in due time. As a result, the present appellant submitted an application for judgment by default. The General Court, however, neither ruled on the default nor commented on the application for judgment by default. It also gave the present appellant no possibility of requesting that a hearing be held.
   2.   Failure to have regard to the failure to state reasons

   The General Court failed to recognise that a failure to state reasons lies in the fact that the Board of Appeal relied on facts arising from practical experience generally acquired from the marketing of general consumer goods such as shoes, which are known by anyone and are in particular known by the consumers of those goods. The Board of Appeal did not state which facts arise from practical experience acquired from the marketing of those goods. The Office did not explain why the red position mark has no distinctive character even though different designs and colours for shoes and shoelaces existed in the market for shoes.
   3.   Failure to have regard to the significance of the principle of ex proprio motu investigation

   The General Court failed to recognise that the Board of Appeal infringed the principle of ex proprio motu investigation in its decision. The Office, however, merely referred to the fact that the present appellant had produced no evidence purporting to show that the mark is perceived by the target public as an indication of origin.
   4.   Incorrect interpretation and application of Article 7(1)(b) of the Community Trade Mark Regulation (CTMR)

   The General Court failed to recognise the incorrect interpretation and application of Article 7(1)(b) CTMR by the Office and thereby also incorrectly interpreted and applied that provision.
   Contrary to the view taken by the General Court, red aglets which stand out in terms of colour from the rest of the shoelace are quite capable of fulfilling an essential function of indicating origin. The General Court, however, set a higher standard for the mark in the present case than for figurative and word marks. It also failed to recognise the fact that distinctive character does not depend on the mark submitted for registration differing significantly from industry standards.


title: Judgment of the Court (Sixth Chamber) of 20 June 2002 in Case C-313/99 (Reference for a preliminary ruling from the High Court): Gerard Mulligan, Tim O'Sullivan, Tom Power, Hugh Duncan v Minister for Agriculture and Food, Ireland, Attorney General (Additional levy in the milk and milk products sector — Regulation (EEC) No 3950/92 — Transfer of the reference quantity on sale or lease of the holding — Whether a Member State may claw back part of the reference quantity and add it to the national reserve)

text:
C 191/2                EN                       Official Journal of the European Communities                                           10.8.2002
4.   Article 3(1)(e), second indent, of Directive 89/104 must be           milk and milk products sector (OJ 1992 L 405, p. 1), as
     interpreted to mean that a sign consisting exclusively of the         amended by Council Regulation (EEC) No 1560/93 of 14 June
     shape of a product is unregistrable by virtue thereof if it is        1993 (OJ 1993 L 154, p. 30), the Court (Sixth Chamber),
     established that the essential functional features of that shape      composed of: N. Colneric, President of the Second Chamber,
     are attributable only to the technical result. Moreover, the          acting for the President of the Sixth Chamber, C. Gulmann and
     ground for refusal or invalidity of registration imposed by that      V. Skouris (Rapporteur), Judges; L.A. Geelhoed, Advocate
     provision cannot be overcome by establishing that there are           General; H.A. Rühl, Principal Administrator, for the Registrar,
     other shapes which allow the same technical result to be              has given a judgment on 20 June 2002, in which it has ruled:
     obtained.
(1) OJ C 299 of 16.10.1999.                                                1.   When Member States determine, pursuant to the first subpara-
                                                                                graph of Article 7(1) of Council Regulation (EEC) No 3950/
                                                                                92 of 28 December 1992 establishing an additional levy in
                                                                                the milk and milk products sector, as amended by Council
                                                                                Regulation (EEC) No 1506/93 of 14 June 1993, the detailed
                                                                                rules under which the reference quantity attached to a holding
                                                                                is to be transferred upon the sale or lease of the holding, they
                                                                                may provide, pursuant to that provision, that part of the
                                                                                reference quantity is not to be transferred with the holding to
                                                                                the producer taking it over but is to be added to the national
                                                                                reserve by means of a ‘clawback’ mechanism. Such a measure
                                                                                must be adopted and applied:
                JUDGMENT OF THE COURT
                                                                                —     in a way which does not compromise the objectives of the
                        (Sixth Chamber)                                               common agricultural policy and in particular those of the
                                                                                common organisation of the markets in the milk sector;
                         of 20 June 2002
                                                                                —     on the basis of objective criteria, and
in Case C-313/99 (Reference for a preliminary ruling from
the High Court): Gerard Mulligan, Tim O’Sullivan, Tom                           —     in accordance with the general principles of Community
Power, Hugh Duncan v Minister for Agriculture and                                     law such as, in particular, the principles of legal certainty
              Food, Ireland, Attorney General (1)                                     and protection of legitimate expectations, proportionality,
                                                                                non-discrimination and respect for fundamental rights.
(Additional levy in the milk and milk products sector —
Regulation (EEC) No 3950/92 — Transfer of the reference
                                                                           2.   The principle of legal certainty does not preclude, as a general
quantity on sale or lease of the holding — Whether a                            principle of Community law, a Member State from choosing,
Member State may claw back part of the reference quantity
                                                                                for the purpose of adopting national measures pursuant to
               and add it to the national reserve)
                                                                                Article 7(1) of Regulation No 3950/92, a procedure whereby
                                                                                a legislative instrument authorises the competent authority,
                                                                                such as a minister, to adopt those measures by means of a
                         (2002/C 191/02)                                        decision. That principle requires that the publicity for such
                                                                                measures be of such a nature as to inform the natural or legal
                                                                                persons concerned by the measures of their rights and obligations
                                                                                under them. It is for the national court to determine, on the
                  (Language of the case: English)
                                                                                basis of the facts before it, whether that is the case in the main
                                                                                proceedings.
In Case C-313/99: Reference to the Court under Article 234
                                                                           (1) OJ C 299 of 16.10.1999.
EC by the High Court (Ireland) for a preliminary ruling in
the proceedings pending before that court between Gerard
Mulligan, Tim O’Sullivan, Tom Power, Hugh Duncan and
Minister for Agriculture and Food, Ireland, Attorney General,
on the interpretation of Council Regulation (EEC) No 3950/92
of 28 December 1992 establishing an additional levy in the


title: Case T-294/04: Action brought on 23 July 2004 by Internationaler Hilfsfonds e.V. against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/37

         Action brought on 23 July 2004 by Internationaler Hilfsfonds e.V. against the Commission of the European Communities
   (Case T-294/04)
   (2004/C 262/71)
   Language of the case: German
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 23 July 2004 by Internationaler Hilfsfonds e.V., Rosbach (Germany), represented by H. Kaltenecker, lawyer.
   The applicant claims that the Court should:

               —

               order the defendant to pay the applicant EUR 54 037.00 on account of material damage suffered by the applicant through conduct by Commission servants in breach of their official duty, and order the Commission to pay the costs.

         Pleas in law and main arguments:
   The claimant is a German non-governmental organisation, working in the humanitarian area.
   The applicant maintains that in Case T-321/01 (1), concerning the rejection of two applications by the applicant for co-financing, the Court of First Instance recognised that the Commission's conduct was deficient and annulled the corresponding Commission decision. The applicant argues that, in the pre-judicial proceedings before the European Ombudsman, it incurred substantial costs, the recoverability of which the Court of First Instance did not acknowledge under its Rules of Procedure in the context of Case T-321/01. The applicant therefore sees no alternative to bringing an action against the Commission for non-contractual liablity in accordance with the second paragraph of Article 288 EC.

      (1)  Judgment of 18.9.2003 in Case T-321/01 Internationaler Hilfsfonds v Commission, not yet published in the ECR.


title: Case T-36/13: Judgment of the General Court of 16 July 2014  — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE) (Community trade mark — Opposition proceedings — Application for Community figurative mark ANTONIO BACIONE — Earlier Community figurative mark erreà and earlier national figurative mark representing two overlapping lozenges — Relative grounds for refusal — No likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009 — Unfair advantage taken of the distinctive character or the repute of the earlier mark — Article 8(5) of Regulation No 207/2009)

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/40

         Judgment of the General Court of 16 July 2014 — Erreà Sport v OHIM — Facchinelli (ANTONIO BACIONE)
   (Case T-36/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark ANTONIO BACIONE - Earlier Community figurative mark erreà and earlier national figurative mark representing two overlapping lozenges - Relative grounds for refusal - No likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009 - Unfair advantage taken of the distinctive character or the repute of the earlier mark - Article 8(5) of Regulation No 207/2009))
   2014/C 292/49
   Language of the case: Italian

      Parties

      Applicant: Erreà Sport SpA (Torrile, Italy) (represented by: D. Caneva and G. Fucci, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Antonio Facchinelli (Dalang, China)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 24 October 2012 (Case R 1561/2011-1) concerning opposition proceedings between Erreà Sport SpA and Antonio Facchinelli.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Erreà Sport SpA to pay the costs.

      (1)  OJ C 79, 16.3.2013.


title: Case T-421/12: Order of the General Court of 27 June 2014  — Württembergische Gemeinde-Versicherung v Commission

text:
               1.9.2014

               EN

               Official Journal of the European Union

               C 292/59

         Order of the General Court of 27 June 2014 — Württembergische Gemeinde-Versicherung v Commission
   (Case T-421/12) (1)

   2014/C 292/76
   Language of the case: German
   The President of the Third Chamber has ordered that the case be removed from the register.

      (1)  OJ C 373, 1.12.2012.


title: Case T-403/07: Order of the Court of First Instance of 3 November 2008 — Union nationale de l'apiculture française and Others v Commission (Action for annulment — Directive 91/414/EEC — Plant protection products — Directive 2007/52/EC — Not individually concerned — Inadmissibility)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/30

         Order of the Court of First Instance of 3 November 2008 — Union nationale de l'apiculture française and Others v Commission
   (Case T-403/07) (1)

   (Action for annulment - Directive 91/414/EEC - Plant protection products - Directive 2007/52/EC - Not individually concerned - Inadmissibility)
   (2009/C 6/62)
   Language of the case: French
   Parties

      Applicants: Union nationale de l'apiculture française (Paris, France); Deutscher Berufs- und Erwerbsimkerbund eV (Utting am Ammersee, Germany); Unione nazionale associazioni apicoltori italiani (Unaapi) (Castel Sanpietro Terme, Italy); and Asociación Galega de Apicultura (AGA) (Santiago de Compostela, Spain) (represented by: B. Fau, lawyer)

      Defendant: Commission of the European Communities (represented by: M. Nolin and B. Doherty, Agents)
   Re:
   Application for annulment of Commission Directive 2007/52/EC of 16 August 2007 amending Council Directive 91/414/EEC to include ethoprophos, pirimiphos-methyl and fipronil as active substances (OJ 2007 L 214, p. 3)
   Operative part of the order

               1.

               The action is dismissed as inadmissible.

               2.

               There is no need to rule on the applications to intervene.

               3.

               Union nationale de l'apiculture française, Deutscher Berufs- und Erwerbsimkerbund eV, Unione nazionale associazioni apicoltori italiani and Asociación Galega de Apicultura shall bear their own costs and pay the costs incurred by the Commission.

      (1)  OJ C 8, 12.1.2008.


title: Action brought on 10 October 1995 by Société de Distribution Mécanique et d'Automobiles (Sodima) against the Commission of the European Communities (Case T-190/95)

text:
No C 333/20            EN                 Official Journal of the European Communities                                     9 . 12 . 95
Instance of the European Communities on 9 October 19 95              Action brought on 10 October 1995 by Société de
by Service pour le Groupement d'Acquisitions ( SGA ),                Distribution Mécanique et d'Automobiles ( Sodima ) against
established at Istres ( France ), represented by Jean-Claude               the Commission of the European Communities
Fourgoux, of the Paris Bar, with an address for service in                                  ( Case T- 190/95 )
Luxembourg at the Chambers of Pierrot Schiltz, 4 Rue
Beatrix de Bourbon .                                                                          ( 95/C 333/38 )
                                                                                (Language of the case: French)
The applicant claims that the Court should :
— declare that the Commission has wrongfully failed to               An action against the Commission of the European
     act ,                                                           Communities was brought before the Court of First
                                                                     Instance of the European Communities on 10 October 1995
— annul the implicit decision not to act upon the request            by Societe de Distribution Mecanique et d'Automobiles
     for provisional measures ,                                      ( Sodima ), established at Istres ( France ), represented by
                                                                    Jean-Claude Fourgoux, of the Paris Bar, with an address for
— declare      that  the   Commission     has   incurred  non       service in Luxembourg at the Chambers of Pierrot Schiltz,
     contractual liability and award the applicant the sum of        4 Rue Beatrix de Bourbon .
     ECU 200 000 ,
                                                                     The applicant claims that the Court should :
— order the Commission to pay the costs .
                                                                     — declare that the Commission has wrongfully failed to
Pleas in law and main arguments:                                         act ,
The applicant states that it operates as an intermediary in the      — annul the implicit decision refusing to communicate
distribution of all makes of automobiles, undertaking                    documents to it,
parallel imports as agent for the final consumer, in
accordance with the provisions of Article 3 ( 11 ) of               — annul the implicit decision to deal with matters
Regulation ( EEC ) No 123/85 , as referred to in Regulation              jointly,
( EEC ) No 1475/95 . On 24 June 1994 it lodged with the             — declare       that     the    Commission       has    incurred
Commission a complaint on the basis of Article 85 of the EC              non-contractual liability and order it to pay
Treaty and Regulations ( EEC ) No 17 and ( EEC ) No 123/85 ,             compensation for the damage suffered up to the sum of
criticizing the steps taken by the PSA group in relation to the          ECU 200 000 per year from 14 March 1995 ,
Peugeot and Citroen dealers representing its foreign
subsidiaries to prevent them from agreeing to sell vehicles to      — order the Commission to pay the costs .
French intermediaries . On 24 April 1995 , having received
no satisfactory response from the Commission, the                    Pleas in law and main arguments:
applicant was forced to call upon it to act, in accordance
with the provisions of Article 175 of the Treaty .                   The applicant company, a Peugeot concessionaire, contests
                                                                     the Commission's refusal to act on a complaint lodged by it
The applicant considers that the Commission has failed in            against PSA concerning the infringement, in the drafting of
the present case to comply with the guarantees provided for          its dealership agreement and the use made thereof, of
by the Community legal order in administrative procedures,           Article 85 of the EC Treaty and Regulation ( EEC )
including in particular the obligation incumbent on the              No 123/85 . It further complains, first, of the failure by
institution to carry out a careful and impartial examination         the defendant institution to communicate to it PSA's
of all the relevant aspects of the question submitted for its        observations on the complaint and PSA 's answers to certain
consideration and the right of the party concerned to make           questions posed in the context of the investigation and,
its views known and to be given an adequate statement of             second, of the defendant's intention, which is apparent from
reasons for the decision . It maintains that the Commission
                                                                     the letter of 12 September 1995 , to deal with the Sodima
had no excuse for not dealing with the matter, since it knew         matter jointly with other matters also relating to Peugeot's
that its failure to adopt a definitive position was making it        dealership system.
possible for agreements and practices to be freely adopted
with a view to the partitioning of the market, constituting          As regards the Commission's failure to act, the applicant
infringements which are regarded as particularly serious .           considers that it failed in the present case to carry out a full
The applicant consequently requests the Court to declare             inquiry into the matter in the context of the administrative
that the Commission has wrongly failed to act.                       procedure and to examine carefully, impartially, and with
                                                                     full knowledge of all the relevant elements of the case, the
The applicant further states that the situation has been             factual and legal aspects submitted for its consideration .
aggravated as a result of the Commission 's failure to act, and
that it is experiencing increasing difficulties in obtaining a       As to the implicit refusal to communicate Peugeot's
normal level of supplies . It therefore seeks an order               observations or any of the questions which may have been
requiring the Commission to pay it compensation for the              put to Peugeot, the applicant considers that the principle of
damage which it is suffering as a result of the shortage of          equality of arms, which must apply not only to the specific
supplies of vehicles from the PSA group .                            victims of anti-competitive practices but also to
                                                                     undertakings which may be found to have committed an
                                                                     infringement and to the Commission, does not permit the
 ---pagebreak--- 9 . 12 . 95            EN                   Official Journal of the European Communities                                 No C 333/21
withholding from the complainant of information as                     nevertheless obliged to carry out a careful and impartial
significant as the existence and contents of requests for              examination of all the relevant elements of each case, in
information and the observations of the undertaking                    order to be able to assess, with full knowledge of the matter,
concerned on the issues involved or on the request for its             the factual and legal aspects submitted by the complainants
comments on the complaint. The applicant remains                       for its consideration .
unaware of the nature of the request for information which
was addressed to Peugeot in the four matters referred to by            The applicant contends that the defendant institution failed
DG IV, and consequently whether that request has any                   to comply with those requirements in the present case. It
bearing whatever on its complaint.                                     argues in that regard that it is not open to the Commission to
                                                                       claim that there was no sufficient Community interest such
Lastly, the decision to proceed on the basis of a system of            as to require it to move on to the next stage of the procedure,
interconnections between the Sodima matter and other                   namely notification of the complaints, or at least the
matters, which is apparent from the Commission's letter of             communication of its intentions pursuant to Article 6 of
12 September 1995 , may be regarded as an artifice designed            Regulation No 99/63 , since :
to delay the outcome of the procedure in the applicant's own
case and to make improper use, in the other cases, of the              ( a ) the Commissioner responsible for competition matters
specific evidence produced by the applicant, thereby                          has publicly stated on numerous occasions that
disregarding the terms laid down by the complainant and                       complaints will be dealt with quickly and that sanctions
the requirements of confidentiality.                                          will be imposed where complaints are well-founded;
                                                                       ( b ) in the present matter, preparatory inquiries into the
                                                                              complaint were all the more necessary in that Nissan
                                                                              France involved the Commission in the drafting of its
Action brought on 17 October 1995 by Société Guérin                           dealership agreement, as is apparent from a letter of
Automobiles against the Commission of the European                             1 July 1993 sent by Nissan France to the applicant.
                            Communities
                                                                       It further states that, had the Commission adopted a
                         ( Case T- 195/95 )                            decision in the form of a withdrawal of exemption or a
                           ( 95/C 333/39 )                             declaration that the clauses and practices followed in its
                                                                       dealings with Nissan France were contrary to Community
                 (Language of the case: French)                        competition law, the applicant would have been able more
                                                                       rapidly to obtain an order for compensation from the
An action against the Commission of the European                       national court before which the matter is pending.
Communities was brought before the Court of First
Instance of the European Communities on 17 October 1995
by Societe Guerin Automobiles, established at Alen^on
( France ), represented by Jean-Claude Fourgoux, of the Paris
Bar, with an address for service in Luxembourg at the
Chambers of Pierrot Schiltz, 4 Rue Beatrix de Bourbon .                Action brought on 17 October 1995 by 'H' against the
                                                                                Commission of the European Communities
The applicant claims that the Court should :                                                   ( Case T-l 96/95 )
— declare that the Commission has wrongfully failed to                                           ( 95/C 333/40 )
     act ,
                                                                                (Language of the case: French)
— alternatively, declare on the basis of Article 215 of the
     Treaty that the Commission has thus incurred                      An action against the Commission of the European
     non-contractual liability towards the applicant, and              Communities was brought before the Court of First
     order it to pay to the applicant compensation assessed at         Instance of the European Communities on 17 October 1995
     FF 1 577 188,53 ,
                                                                       by 'H ', residing in Brussels, represented by Pierre-Paul van
— order the Commission to pay the costs .                              Gehuchten and Jacques Sambon, of the Brussels Bar, with
                                                                       an address for service at the Chambers of Louis Schiltz,
                                                                       2 Rue du Fort Rheinsheim .
Pleas in law and main arguments:
The applicant company, a concessionaire of Nissan France               The applicant claims that the Court should:
( which imports Nissan vehicles and is a subsidiary of the
Japanese manufacturer ), contests the Commission's refusal             — declare the conclusions of the Invalidity Committee
to act on a complaint lodged by it against Nissan France                     irregular and void,
concerning the compatibility of the dealership agreement
with Article 85 of the EC Treaty and Regulation                        — annul the decision of the Commission of the European
No 123/85 .                                                                  Communities of 27 September 1994 retiring the
                                                                             applicant and granting her an invalidity pension
It considers that, whilst the Commission is indeed at liberty                pursuant to the provisions of the third paragraph of
to establish an order of priority in dealing with matters, it is             Article 78 of the Staff Regulations,


title: Case C-247/04: Reference for a preliminary ruling by the College van Beroep voor het Bedrijfsleven by judgment of 28 May 2004 in the case of Transport Maatschappij Traffic B.V. v Staatssecretaris van Economische Zaken

text:
               28.8.2004

               EN

               Official Journal of the European Union

               C 217/12

         Reference for a preliminary ruling by the College van Beroep voor het Bedrijfsleven by judgment of 28 May 2004 in the case of Transport Maatschappij Traffic B.V. v Staatssecretaris van Economische Zaken
   (Case C-247/04)
   (2004/C 217/22)
   Reference has been made to the Court of Justice of the European Communities by judgment of 28 May 2004 of the College van Beroep voor het Bedrijfsleven (Administrative Court for Trade and Industry), which was received at the Court Registry on 11 June 2004, for a preliminary ruling in the case of Transport Maatschappij Traffic B.V. v Staatssecretaris van Economische Zaken on the following question:
   ‘Must the term “legally owed” in Article 236 of the Community Customs Code (the CCC) (1) be understood as referring exclusively to the question whether the conditions for the incurrence of a customs debt, as set out in Chapter 2 of Title VII of the CCC, are fulfilled or can legal indebtedness arise only if there are no grounds, including grounds under the national provisions in force as specified in Article 4(23) of the CCC, for challenging the notification that duties are owed?’

      (1)  OJ L 302 of 13.10.1992, p. 1.


title: Case C-280/09: Order of the President of the Court of 15 December 2009 — European Commission v Portuguese Republic

text:
               13.3.2010

               EN

               Official Journal of the European Union

               C 63/45

         Order of the President of the Court of 15 December 2009 — European Commission v Portuguese Republic
   (Case C-280/09) (1)

   2010/C 63/78

      Language of the case: Portuguese

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

      (1)  OJ C 256, 24.10.2009.


title: Case T-118/13: Action brought on 20 February 2013 — Whirlpool Europe v Commission

text:
               18.5.2013

               EN

               Official Journal of the European Union

               C 141/22

         Action brought on 20 February 2013 — Whirlpool Europe v Commission
   (Case T-118/13)
   2013/C 141/39
   Language of the case: English

      Parties

      Applicant: Whirlpool Europe BV (Breda, Netherlands) (represented by: F. Wijckmans and H. Burez, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the Decision of the Commission of 25 July 2012 relating to the State aid of France to the benefit of the FagorBrandt company [SA.23839 no C44/2007];

               —

               Order the Commission to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant seeks the annulment of the Commission decision of 25 July 2012 relating to State aid of France to the benefit of the FagorBrandt company [SA.23839 no C44/2007].
   In support of the action, the applicant relies on two pleas in law.

               1.

               First plea in law, alleging that the decision infringes Article 107(3)(c) TFEU and the Community guidelines on State aid for rescuing and restructuring firms in difficulty. The applicant submits that the holding of the decision is incorrect as a matter of law on account of the fact that one or more of the (cumulative) conditions of the abovementioned guidelines is not met or that, in any event, the Commission has failed to ascertain to the requisite legal standard that each of such conditions is met. The arguments advanced to underscore this plea relate to the failure to comply with (i) the duty to assess one or more of the conditions of the aforementioned guidelines as at the date of the decision; (ii) the ‘one time, last time’ condition; (iii) the condition that restructuring aid may not serve to keep firms artificially alive; (iv) the conditions as to the assessment of previous unlawful aid; (v) the condition that the beneficiary of the aid must be a firm in difficulty; (vi) the condition that the beneficiary of the aid should not be a newly created firm; (vii) the condition that the restructuring plan must restore the long-term viability of the beneficiary; (viii) the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid; and (ix) the condition that the aid must be limited to the minimum and that a real contribution (free of aid) must be made by the business group.

               2.

               Second plea in law, alleging that the decision infringes the duty to state reasons laid down in Article 296 TFEU on several items. The applicant in particular submits that the decision fails to state adequate reasons with respect to (i) the condition of imposing compensatory measures to avoid undue distortions resulting from the restructuring aid, and (ii) the repayment obligation of previous unlawful aid.


title: Case T-95/03: Action brought on 8 March 2003 by the Asociación de Empresarios de Estaciones de Servicio de la Comunidad Autónoma de Madrid and the Federación Catalana de Estaciones de Servicio against the Commission of the European Communities

text:
10.5.2003              EN                          Official Journal of the European Union                                         C 112/43
The applicant claims that the Court should:                                The applicant claims that the Court should:
—     principally, annul pursuant to Article 230 EC the decision
                                                                           —     annul the Commission Decision of 13 November 2002
      of the Commission of the European Communities of
                                                                                in which it was decided not to raise any objections to
      17 December 2002 C(2002) 5087 final, by which the
                                                                                the Disposición Transitoria Primera (First Transitional
      applicant was ordered to pay a fine of EUR 3 750 000,00
                                                                                Provision) of Real Decreto Ley 6/2000 de Medidas
      at the end of a proceeding pursuant to Article 65 of the
                                                                                Urgentes de Intensificación de la Competencia en Merca-
      ECSC Treaty (Case COMP/37.956 — Round bar steel for
                                                                                dos de Bienes y Servicios (Royal Decree Law on Emer-
      reinforced concrete);
                                                                                gency Measures to Promote Competition in Markets for
                                                                                Goods and Services);
—     failing that, annul in part Decision C(2002) 5087 final,
      with a consequential reduction of the fine,
                                                                           —     order the Commission to pay the costs.
—     in any event, order the Commission of the European
      Communities to pay the costs.
                                                                           Pleas in law and main arguments
Pleas in law and main arguments
This action is directed against the same decision as that                  The applicants in the present action, which represent almost
challenged in Case T-27/03 (S.P. v Commission). The pleas in               all the existing service stations in Spain, are challenging the
law and main arguments are similar to those put forward in                 Commission’s failure to take action in respect of the exemption
that case. In addition to breach of rights of the defence, in that         of certain hypermarkets from the requirement to obtain
the communication of the Commission’s complaints did not                   permission from the authorities to vary the planning restric-
take into consideration whether there was any effect on intra-             tions on building and usage, an exemption introduced into
Community trade, the applicant alleges that the Commission                 Spanish law by the First Transitional Provision of Royal Decree
made an incorrect assessment of the length of its participation            Law No 6/2000 of 23 June on Emergency Measures to
in the agreement, decision or concerted practice, and of the               Promote Competition in Markets for Goods and Services. The
base prices, the prices of the ‘extra’ in terms of dimension and           stated objective of that exemption, which the applicants
the limitation of production and/or sales.                                 consider amounts to aid, was to facilitate the establishment of
                                                                           service stations on the premises of those hypermarkets, thereby
                                                                           promoting increased competition in the market for the retail
                                                                           supply of petroleum products in Spain.
                                                                           The Decision at issue in this action confirms that the disputed
                                                                           measure does not amount to State aid, since it does not entail
Action brought on 8 March 2003 by the Asociación de                        a transfer of State resources.
Empresarios de Estaciones de Servicio de la Comunidad
Autónoma de Madrid and the Federación Catalana de
Estaciones de Servicio against the Commission of the
                     European Communities                                  In support of their claims, the applicants submit:
                         (Case T-95/03)                                    —     that the measure at issue increases the value of the
                                                                                beneficiaries’ property is immediately and without their
                                                                                providing consideration and entails an exceptional
                        (2003/C 112/81)                                          reclassification of the land on which the hypermarkets are
                                                                                located, abolishes the charges, costs and administrative
                   (Language of the case: Spanish)                               procedures which are necessary under normal circum-
                                                                                stances if a service station is to be opened and also
                                                                                entails the State’s surrender of its right to receive the
                                                                                consideration in money or money’s worth which would
                                                                                normally be applicable.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 8 March 2003 by the Asociación                     —     Manifest error of assessment on the Commission’s part in
de Empresarios de Estaciones de Servicio de la Comunidad                         that it carried out an incomplete and incorrect analysis of
Autónoma de Madrid and the Federación Catalana de Estacion-                      the national planning legislation, which vitiates the
es de Servicio, both established in Madrid, represented by José                  Decision as regards the transfer of State resources and the
María Jiménez Laiglesia and Marta Delgado Echevarría.                            ensuing interpretation of Article 87(1) EC.
 ---pagebreak--- C 112/44             EN                          Official Journal of the European Union                                       10.5.2003
—    Manifest error of assessment as regards the Community               —     order the Commission to pay him by way of compen-
     case-law and rules on the requirement laid down in                        sation for non-material damage provisionally assessed, ex
     Article 87(1) of the Treaty that aid should be granted by                 aequo et bono, at EUR 10 000;
     the State or through State resources. It is asserted in this
     respect that nothing in Community case-law or in the
     legislation on State aid suggests that it is necessary that         —     order the Commission to pay the applicant compensation
     the resources to which the domestic authorities waive                     for damage to his career, provisionally, of EUR 1;
     their right should be formally recognised in the State
     budget.                                                             —     order the Commission to reimburse the expenses incurred
                                                                               by the applicant in preparing his defence in the context
—    Breach of the principle of sound administration, since the                of the inquiry and his administrative complaint against
     Commission did not raise objections to the disputed                       the decision of 17 May 2002;
     measure or initiate the formal investigation procedure
     laid down in Article 88(2) EC.                                      —     order the Commission to pay the costs.
The applicants also allege that the Commission failed to
comply with the obligation to state reasons.
                                                                         Pleas in law and main arguments
                                                                         The applicant is an official of the Commission of the European
                                                                         Communities. Between 1993 and 1997, he assisted his
                                                                         immediate superior who was a member of the Executive
                                                                         Committee of the Institute for European-Latin American
                                                                         Relations (IRELA). When an internal inquiry was opened by
                                                                         the European Anti-fraud Office (OLAF) into the IRELA, the
Action brought on 10 March 2003 by Manel Camós Grau
                                                                         applicant was informed that it was possible that he too was
  against the Commission of the European Communities                     implicated in financial irregularities. The applicant asked the
                                                                         director of OLAF to find out as soon as possible whether there
                                                                         was any possible conflict of interest with regard to one of the
                        (Case T-96/03)                                   investigators and if appropriate to take the necessary steps to
                                                                         guarantee the objectivity of the inquiry. By the contested
                                                                         decision, the director of OLAF decided to remove from
                       (2003/C 112/82)                                   the inquiry the investigator concerned but left standing
                                                                         investigative measures and decisions proposed and adopted by
                                                                         him or to which he contributed.
                  (Language of the case: French)
                                                                         In support of his claims, the applicant relies on four pleas in
                                                                         law:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               —     Infringement of Article 25(2) of the Staff Regulations
European Communities on 10 March 2003 by Manel Camós                           inasmuch as the contested decision was not notified to
Grau, residing in Brussels, represented by Marc-Albert Lucas,                  him and provides an inadequate statement of reasons;
lawyer.
                                                                         —     Breach of the duty to provide evidence of the proper
                                                                               conduct of the inquiry;
The applicant claims that the Court should:
—    annul the OLAF decision of 17 May 2002 removing one                 —     Manifest error of assessment in that the reason for the
                                                                               contested decision appears to be that the investigator
     of the investigators from the inquiry by the Office into
     the IRELA inasmuch as it leaves standing investigative                    concerned did not participate either in the monitoring or
     measures and decisions on its conduct adopted by the                      the handling of the case in question;
     investigator or to which he contributed, without re-
     examining or annulling them or requiring new inquiries;             —     Breach of the principle that inquiries should be fair and
                                                                               impartial.
—    annul the OLAF decision of 29 November 2002 implicitly
     rejecting the applicant’s administrative complaint of
     29 July 2002 against the decision of 17 May 2002;


title: Case T-243/05: Action brought on 30 June 2005 by the Hellenic Republic against the Commission of the European Communities

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/36

         Action brought on 30 June 2005 by the Hellenic Republic against the Commission of the European Communities
   (Case T-243/05)
   (2005/C 205/64)
   Language of the case: Greek
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 June 2005 by the Hellenic Republic.
   The applicant claims that the Court should:

               —

               Annul the Commission's contested decision; or

               —

               Alter it in accordance with the specific matters set out in the application;

               —

               Order the Commission to pay the costs.

         Pleas and main arguments
   By its contested decision the Commission, effecting clearance of accounts under Regulation (EEC) No 729/70, excluded from Community financing various expenditure incurred by the Hellenic Republic in regard to arable crops, olive oil and financial control, with the result that those amounts were not recognised as lawful Community financing and were charged to the Hellenic Republic.
   In support of its application, the applicant pleads that the Commission did not have competence to impose the corrections at issue inasmuch as they relate to expenditure effected by the Member State at a time prior to the 24 months before the Commission's initial notification in connection with that expenditure.
   Moreover, as regards the 5 % financial correction effected in the sector of arable crops imposed by the contested decision on the ground that the competent Greek services, notwithstanding progress made by them continued to make payments even in circumstances where claims had demonstrably not been checked correctly, the applicant calls in question the factual circumstances relied on by the Commission and pleads an error as to the facts and erroneous reasoning in the contested decision. It further invokes infringement of the Commission's guidelines at VI/75330/97, breach of the principle of proportionality, misappraisal of the facts and incorrect justification in connection with the amount of the 5 % financial correction.
   In regard to the correction in respect of financial control, the applicant pleads that the payment arrears in regard to which the corrections at issue were imposed are attributable either to the need to effectuate supplementary checks owing to the major discrepancy found in contrast to areas declared or to exceptional circumstances, namely the submission and examination of objections concerning erroneous entries detected in the database after payments had been made or, in one specific case, to a suspension of works owing to force majeure.


title: Case C-359/08: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 August 2008 — Stichting Greenpeace Nederland v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, other party: Pioneer Hi-Bred Northern Europe Sales Division

text:
               8.11.2008

               EN

               Official Journal of the European Union

               C 285/19

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 4 August 2008 — Stichting Greenpeace Nederland v Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer, other party: Pioneer Hi-Bred Northern Europe Sales Division
   (Case C-359/08)
   (2008/C 285/32)
   Language of the case: Dutch
   Referring court
   Raad van State
   Parties to the main proceedings

      Applicant: Stichting Greenpeace Nederland

      Defendant: Minister van Volkshuisvesting, Ruimtelijke Ordening en Milieubeheer

      Other party: Pioneer Hi-Bred Northern Europe Sales Division
   Questions referred

               1.

               Must the location of release of genetically modified organisms which cannot be regarded as confidential by virtue of Article 25(4) of Directive 2001/18/EC (1), in view inter alia of the objective and general scheme of that Directive, be interpreted as referring to the parcel of land in the land register, or is it sufficient for a larger geographical area to be indicated?

               2.

                           (a)

                           If the indication of a larger geographical area is sufficient, what circumstances may be included when it is decided how the area is to be indicated?

                           (b)

                           Is Directive 2003/4/EC (2) relevant in the determination of the size of the area to be indicated?

                           (c)

                           Does an area twenty times larger than the individual trial fields satisfy the principle of proportionality?

               3.

               Is the principle of proportionality satisfied if, pursuant to the policy revised on 17 July 2008, a general indication of areas one hundred times the individual trial fields is chosen?

               4.

               If only a reference to an entry in the land register is sufficient, can, despite the rule laid down in Article 25(4) of Directive 2001/18/EC, a justification for treating confidentially information on the precise location of release none the less lie in the circumstances defined in Article 4(2) of Directive 2003/4/EC?

               5.

                           (a)

                           Does Article 4(2) of Directive 2003/4/EC contain an exhaustive list of justifications?

                           (b)

                           If so, can the protection of firms, including the persons and products therein, and the prevention of sabotage for the sake of the biotechnological development climate in the Netherlands be subsumed under one of the justifications set out in Article 4(2) of Directive 2003/4/EC?

               6.

               If the answers to Questions 5(a) and (b) are in the affirmative, is the designation of an area twenty or one hundred times the size of the trial field, in the light of Article 4(2)(h) of Directive 2003/4/EC, proportionate having regard to the protection of private interests (protection of firms, including the persons and products therein), and of public interests (prevention of sabotage for the sake of the biotechnological development climate in the Netherlands)?

               7.

                           (a)

                           If the answer to Question 5(a) is in the negative, do the protection of firms, including the persons and products therein, and the prevention of sabotage for the sake of the biotechnological development climate in the Netherlands form a permissible justification?

                           (b)

                           If the answer to Question 7(a) is in the affirmative, is the designation of an area twenty or one hundred times the size of the trial field proportionate having regard to the protection of private interests (protection of firms, including the persons and products therein) and of public interests (prevention of sabotage for the sake of the biotechnological development climate in the Netherlands)?

      (1)  Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1).

      (2)  Directive 2003/4/EC of the European Parliament and of the Council of 28 January 2003 on public access to environmental information and repealing Council Directive 90/313/EEC (OJ 2003 L 41, p. 26).


title: JUDGMENT OF THE COURT (Sixth Chamber) of 19 November 1998 in Case C-150/94: United Kingdom of Great Britain and Northern Ireland supported by Federal Republic of Germany v. Council of the European Union, supported by Kingdom of Spain and Commission of the European Communities (Actions for annulment - Common commercial policy - Regulation (EC) No 519/94 - Import quotas for certain toys from the People's Republic of China)

text:
23.1.1999           EN                 Official Journal of the European Communities                                       C 20/3
              JUDGMENT OF THE COURT                               3. Orders the Federal Republic of Germany, the
                                                                       Kingdom of Spain and the Commission of the
                      (Sixth Chamber)                                  European Communities to bear their own costs.
                   of 19 November 1998                            (1) OJ C 202, 23.7.1994.
in Case C-150/94: United Kingdom of Great Britain and
Northern Ireland supported by Federal Republic of
Germany v. Council of the European Union, supported by
Kingdom of Spain and Commission of the European
                      Communities (1)
(Actions for annulment Ð Common commercial policy Ð                             JUDGMENT OF THE COURT
Regulation (EC) No 519/94 Ð Import quotas for certain
         toys from the People's Republic of China)                                       (Sixth Chamber)
                                                                                of 19 November 1998
                       (1999/C 20/03)
                                                                  in Case C-66/96 (reference for a preliminary ruling
                                                                  from      the    Sù-    og    Handelsret):     Handels-      og
                                                                  Kontorfunktionñrernes Forbund i Danmark and Others
                                                                  v. Fñllesforeningen for Danmarks Brugsforeninger and
                                                                                Others (1)
               (Language of the case: English)
                                                                  (Equal treatment for men and women Ð Remuneration Ð
                                                                           Working conditions for a pregnant woman)
                                                                                (1999/C 20/04)
In Case C-150/94: United Kingdom of Great Britain and
Northern Ireland (Agent: John E. Collins assisted by                             (Language of the case: Danish)
Christopher Vajda), supported by Federal Republic of
Germany (Agents: Ernst Röder and Gereon Thiele) v.
Council of the European Union (Agents: Bjarne
Hoff-Nielsen and Guus Houttuin), supported by Kingdom
of Spain (Agents: Alberto Navarro GonzaÂlez and Gloria              (Provisional translation; the definitive translation will be
Calvo Díaz) and by Commission of the European                              published in the European Court Reports)
Communities (Agents: Eric L. White and Patrick Hetsch)
Ð Application for annulment of Article 1(2) of Council
Regulation (EC) No 519/94 of 7 March 1994 on common
rules for imports from certain third countries and                In Case C-66/96: reference to the Court under Article 177
repealing Regulations (EEC) No 1765/82, No 1766/82                of the EC Treaty from the Sù- og Handelsret (Maritime
and No 3420/83 (OJ L 67, 10.3.1994, p. 89), in so far as          and Commercial Court) (Denmark) for a preliminary
it applies to toys falling within HS/CN Codes 9503 41,            ruling in the proceedings pending before that court
9503 49 and 9503 90 Ð the Court (Sixth Chamber),                  between Handels- og Kontorfunktionñrernes Forbund i
composed of: P. J. G. Kapteyn, President of the Chamber,          Danmark, acting on behalf of Berit Hùj Pedersen, and
G. F. Mancini (Rapporteur) and J. L. Murray, Judges; P.           Fñllesforeningen for Danmarks Brugsforeninger, acting on
LeÂger, Advocate-General; H. von Holstein, Deputy                 behalf of Kvickly Skive, between Handels- og
Registrar, has given a judgment on 19 November 1998, in           Kontorfunktionñrernes Forbund i Danmark, acting on
which it:                                                         behalf of Bettina Andresen, and Dansk Tandlñgeforening,
                                                                  acting on behalf of Jùrgen Bagner, between Handels- og
                                                                  Kontorfunktionñrernes Forbund i Danmark, acting on
                                                                  behalf of Tina Pedersen, and Dansk Tandlñgeforening,
                                                                  acting on behalf of Jùrgen Rasmussen, and between
                                                                  Kristelig Funktionñr-Organisation, acting on behalf of Pia
1. Dismisses the application;                                     Sùrensen, and Dansk Handel & Service, acting on behalf
                                                                  of Hvitfeldt Guld og Sùlv ApS Ð on the interpretation of
                                                                  Article 119 of the EC Treaty, Council Directive
                                                                  75/117/EEC of 10 February 1975 on the approximation of
                                                                  the laws of the Member States relating to the application
                                                                  of the principle of equal pay for men and women (OJ
                                                                  L 45, 19.2.1975, p. 19), Council Directive 76/207/EEC of
2. Orders the United Kingdom of Great Britain and                 9 February 1976 on the implementation of the principle of
    Northern Ireland to pay the costs;                            equal treatment for men and women as regards access to


title: Case F-75/09: Action brought on 11 September 2009 –Wenig v Commission

text:
               7.11.2009

               EN

               Official Journal of the European Union

               C 267/85

         Action brought on 11 September 2009 –Wenig v Commission
   (Case F-75/09)
   2009/C 267/155
   Language of the case: French

      Parties

      Applicant: Fritz Harald Wenig (Brussels, Belgium) (represented by: Georges-Albert Dal and Dominique Voillemot, lawyers)

      Defendant: Commission of the European Communities

      Subject-matter and description of the proceedings

   First, application for annulment of the implied decision rejecting the applicant's request of 23 September 2008 for assistance from the European Commission and, second, an application for annulment of the rejection decision of the European Commission of 14 November 2008.

      Form of order sought

               —

               annul the implied decision rejecting the applicant's request of 23 September 2008 that the European Commission assist him in relation to the infringement of his rights which he suffered by reason of the publication of an offensive and defamatory article published on 7 September 2008 on the website of the British daily newspaper The Sunday Times and the unlawful actions of its authors;

               —

               should that decision be regarded as an express decision refusing the request for assistance made by the applicant, annul the Commission's decision of 14 November 2008 in so far as it rejects the applicant's request for assistance in the context of the organisation of the ‘Worst Conflicts of Interest Award’ calling him into question and infringing his integrity and the presumption of innocence;

               —

               order the defendant to pay compensation for the financial and non-material loss suffered;

               —

               order the defendant to pay the costs.


title: Judgment of the Court (Grand Chamber) of 21 July 2005 in Case C-231/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia: Consorzio Aziende Metano (Coname) v Comune di Cingia de' Botti (Articles 43 EC, 49 EC and 81 EC — Concession for the management of a public gas-distribution service)

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/7

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 21 July 2005
   in Case C-231/03: Reference for a preliminary ruling from the Tribunale amministrativo regionale per la Lombardia: Consorzio Aziende Metano (Coname) v Comune di Cingia de' Botti (1)

   (Articles 43 EC, 49 EC and 81 EC - Concession for the management of a public gas-distribution service)
   (2005/C 217/14)
   Language of the case: Italian
   In Case C-231/03: reference for a preliminary ruling under Article 234 EC from the Tribunale amministrativo regionale per la Lombardia (Lombardy Regional Administrative Court) (Italy), made by decision of 14 February 2003, received at the Court on 28 May 2003, in the proceedings between Consorzio Aziende Metano (Coname) and Comune di Cingia de' Botti, intervener: Padania Acque SpA — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans (Rapporteur), A. Rosas, R. Silva de Lapuerta and A. Borg Barthet, Presidents of Chambers, R. Schintgen, S. von Bahr, J.N. Cunha Rodrigues, G. Arestis, M. Ilešič, J. Malenovský and J. Klučka, Judges; C. Stix-Hackl, Advocate General; L. Hewlett, Principal Administrator, for the Registrar, gave a judgment on 21 July 2005, in which it ruled:
   Articles 43 EC and 49 EC preclude, in circumstances such as those at issue in the main proceedings, the direct award by a municipality of a concession for the management of the public gas-distribution service to a company in which there is a majority public holding and in the capital of which the municipality in question has a 0.97 % holding, if that award does not comply with transparency requirements which, without necessarily implying an obligation to hold an invitation to tender, are, in particular, such as to enable an undertaking located in the territory of a Member State other than that of the municipality in question to have access to appropriate information regarding that concession, so that, if that undertaking had so wished, it would have been in a position to express its interest in obtaining that concession.

      (1)  OJ C 226 of 20.09.2003.


title: Action brought on 11 August 1995 by the European Association of Mozzarella Manufacturers and Others against the Commission of the European Communities (Case T-157/95)

text:
No C 286/ 16          EN                 Official Journal of the European Communities                                28 . 10 . 95
The applicants claim that the Court should:                              adopted pursuant thereto, in particular, Article 7 of
                                                                         Council Regulation ( EEC ) No 2080/83 of 20 July
                                                                         1993 .
annul Commission Decision No CF 94/ 10/65/005 of
21 December 1994 granting a contribution from the
Cohesion Fund for the project to build the New Road Bridge
over the Tagus in the Lisbon Region, Portugal .
Pleas in law and main arguments adduced in support:                 Action brought on 11 August 1995 by the European
                                                                    Association of Mozzarella Manufacturers and Others
                                                                      against the Commission of the European Communities
The applicants rely on the following grounds in support of
                                                                                ( Case T-157/95 )
their application :
                                                                                95 /C 286/38
1 . Breach of the principles and basic regulations of
     European environmental law:                                                   (Language of the case: English)
     — The consent given to the project to build the new            An action against the Commission of the European
        bridge over the Tagus is in breach of the principles        Communities was brought before the Court of First
        embodied in Council Directive 85/337/EEC of                 Instance of the European Communities on 11 August 1995
        27 June 1985 on the assessment of the effects of            by the European Association of Mozzarella Manufacturers
        certain public and private projects on the                  and Others, represented by Michel Waelbroeck and Jules
        environment inasmuch as the choice ( from among             Stuyck, with an address for service in Luxembourg at the
        the three possible alternatives ) of location for the       Chambers of Ernest Arendt, Rue Mathias Hardt 8—10 .
        bridge was not made subject to an assessment with
        regard to the environmental impact, the indirect and        The applicants claim that the Court should:
        cumulative effects were not studied and the rules
        regarding public consultation were not complied             — annul the Commission's decision referred to in press
        with .
                                                                        release Nr. IP/95/558 , and
     — Consent to the project is also contrary to Article 6(3 )     — annul, to the extent necessary, the press release
        of Council Directive 92/43/EEC of 21 May 1992                    IP/95/558 and the letter of Mr Legras to the applicants
        inasmuch as the assessment procedure in respect of               dated 10 July 1995 ,
        the impact of the project on the SPA ( Special
        Protection Area ) of the Tagus Estuary was not in           — in the alternative, and before takings its final decision,
        keeping with the aims of conservation .                          order the Commission to produce a copy of the Decision
                                                                         and of the decision approving the Selective Financial
     — Consent to the project also infringes Article 6 ( 4 ) of          Assistance Scheme,
        Council Directive 92/43/EEC of 21 May 1992
        inasmuch as it allows the Tagus SPA to be                   — order the Commission to pay the applicants' costs in this
        substantially affected without the European                      action .
        Commission having been consulted in that
        connection and without relating to human health or
        public safety, or positive consequences of primary          Pleas in law and main arguments adduced in support:
        importance for the environment. Even if it were to be
        considered that the last part of Article 6 ( 4 ) was not    The applicants, four companies involved in the manufacture
        applicable, consent is none the less contrary to the        and marketing of dairy products, and an association
        first part of that provision in view of the fact that       comprising those companies which has traditionally
        there were alternatives to the location of the bridge       represented the interests of its members in industrial
        which did not affect the SPA, the public interest in        matters, challenge the Commission decision not to raise
        the project was not justified and the necessary             objections to an aid to be granted by the Industrial
        compensatory measures were not ensured .                    Development Board of Northern Ireland to Leprino/Golden
                                                                    Vale for the establishment of a mozzarella production plant
     — The construction of the new bridge over the Tagus is         in Northern Ireland .
        contrary to Article 4 (4 ) of Directive 79/409/EEC
        inasmuch as disturbances in the SPA are not limited         The Lemprimo/Golden Vale joint venture will represent the
        to the least possible and are not strictly necessary .      largest single investment ever made in the Northern Ireland
                                                                    dairy industry and the applicants suspect that the proposed
 2 . Unlawfulness of the decision : Commission Decision No          £ 32 million plan will have a production capacity by far
     CF 94/10/65/005 is unlawful inasmuch as it is contrary         superior to the 18 000 tonnes announced .
     to the principle that programmes financed by the
     Structural Funds are required to be in keeping with the         Since the 1987 special framework for investment aid
     provisions of the treaties and with the instruments             relating to the manufacture and marketing of certain dairy
 ---pagebreak--- 28 . 10 . 95          EN                 Official Journal of the European Communities                              No C 286/ 17
products and of substitute products, the Commission has                aid for investments in processing and marketing of
insisted on obtaining, from Member States contemplating                agricultural products, did not require its notification.
the grant of aid to investment projects in the sector, evidence
that such investments would not bring about any increase in
capacity to use cow's milk or in the manufacture and                — Infringement of Article 93 ( 2 ) of the EC Treaty in so far
marketing of imitation or substitute milk or milk                      as the Commission refused to open the procedure laid
products.                                                              down in Article 93 (2 ) of the EC Treaty. In dealing with
                                                                       this matter the Commission has simply relied on
According to the applicants, the Commission made manifest              assurances given by the United Kingdom authorities and
errors of fact when deciding that the contested aid complied           has not made an independent examination of the issues
with such rules . The applicants accordingly seek the                  raised by the applicants, in spite of the strong factural
annulment of the contested decision on the following                   evidence that the contested aid was incompatible with
grounds :                                                              Community rules .
— Infringement of Article 93 ( 3 ) of the EC Treaty in so far
    as the Commission, having considered that the contested         — Infringement of Article 190 of the EC Treaty in so far as
    aid complied with the selection criteria applying to State         the decision does not contain proper reasons .


title: Case T-25/08: Action brought on 11 January 2008 — Katjes Fassin v OHIM (Yoghurt-Gums)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/62

         Action brought on 11 January 2008 — Katjes Fassin v OHIM (Yoghurt-Gums)
   (Case T-25/08)
   (2008/C 64/101)
   Language in which the application was lodged: German
   Parties

      Applicant: Katjes Fassin GmbH & Co. KG (Emmerich, Germany) (represented by R. Uecker, lawyer)

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

               —

               Annul the decision of the Fourth Board of Appeal of 25 October 2007 (Case R 1322/2006-4);

               —

               Order the defendant to pay the costs of the action, including those incurred during the appeal proceedings.

         Pleas in law and main arguments

      Community trade mark concerned: The figurative mark ‘Yoghurt-Gums’ for goods in Classes 29, 30 and 32 (Application No 4 929 808).

      Decision of the Examiner: Partial refusal to register.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 7(1)(b) and (c) of Regulation (EC) No 40/94 (1) in relation to the goods in Class 30 which are still at issue in the proceedings.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).