title: Case T-146/01: Action brought on 2 July 2001 by D.L.D. Trading Company Import-Export, spol. s.r.o. against the Council of the European Union

text:
13.10.2001            EN                    Official Journal of the European Communities                                     C 289/25
European Communities on 20 June 2001 by Entorn, Sociedat               Action brought on 2 July 2001 by D.L.D. Trading Com-
Limitada Enginyeria i Serveis, whose registered office is in           pany Import-Export, spol. s.r.o. against the Council of the
Barcelona (Spain), represented by Marı́a do Carmo Belard-                                      European Union
Kopke Marques-Pinto.
                                                                                (Case T-146/01)
The applicant claims that the Court should:                                                    (2001/C 289/62)
                                                                                (Language of the case: German)
—     annul in its entirety Commission Decision C(1999) 534
      of 4 March 1999 withdrawing the assistance granted to
      Entorn, Sociedat Limitada Enginyeria i Serveis under
      Decision C(93) 3394 of 26 November 1993 relating to              An action against the Council of the European Union was
      the granting of EAGGF — Guidance Section assistance in           brought before the Court of First Instance of the European
      accordance with Council Regulation (EEC) No 4256/88              Communities on 2 July 2001 by D.L.D. Trading Company
      for Project No 93.ES.06.030 entitled ‘Project demonstrat-        Import-Export, spol. s.r.o., Brno, Czech Republic, represented
      ing sumac cultivation using new cultivation techniques’;         by Johannes Hintermayr, Georg Minichmayr and Peter Burg-
                                                                       staller.
—     order the Commission of the European Communities to
      pay the costs.                                                   The applicant claims that the Court should:
                                                                       1.    order the Council to pay the applicant ATS
                                                                             10 000 000 within 14 days and declare the current
                                                                             version of Article 5(8) of Council Directive 69/169/EEC
                                                                             concerning travellers’ allowances and Regulation (EC)
Pleas in law and main arguments                                              No 2744/98 contrary to Community law;
                                                                       2.    order the Council to pay the costs.
The applicant claims, first, that the Commission has committed
an error of assessment of the facts in regarding it as the
addressee of the contested decision ordering the repayment of          Pleas in law and main arguments
EUR 725 094. In the applicant’s view, the Commission
acknowledged from the start of the project that the beneficiary
of the Community financial contribution was Entorn, Trading            The applicant is established in Brno, Czech Republic, and
Limited, a company incorporated under Irish law, with which            operates two ‘Duty Free Shops’ in that country. In practice, it
the applicant, Entorn, Sociedat Limitada Enginyeria i Serveis,         sells goods exclusively to travellers who import them into
has no economic, legal or financial connection whatsoever. It          Austria in their personal luggage for their personal use.
was to that organisation that was actually transferred the sum
of EUR 725 094, now being claimed from the applicant who
never received any monies whatever from the Commission.
                                                                       It argues that Council Regulation (EC) No 2744/98 (1) and/or
                                                                       Article 5(8) of Directive 69/169/EEC as amended by Council
                                                                       Directive 91/191/EEC (2) are contrary to primary Community
                                                                       law and the general principles of the Community and are
The applicant submits, secondly, that the contested decision is        illegal.
vitiated by a breach of essential procedural requirements, since
the formalities necessary for its adoption have not been
complied with. Indeed, the Commission has not provided the             The Council regulation on exemption from customs duty as
defendant with an opportunity to defend itself prior to the            amended by Regulation (EC) No 2744/98 exempts imports of
closure of the administrative procedure, thereby offending             goods from a non-member country contained in luggage
against the fundamental principle of Community law which               which are not commercial in character. However, the exemp-
provides that, in any proceedings against a person which may           tion applies only up to a certain maximum value. Pursuant to
result in a decision adversely affecting it, the right to a fair       a derogating provision, the duty-free limit which applied in
hearing must be observed, a principle which applies even               Austria until 31 December 1997 was 75 ecus. On 14 Decem-
where there does not exist any legislation governing such              ber 1998, the Council adopted Regulation (EC) No 2744/98,
procedure.                                                             whereby the duty-free amount may be limited by national
                                                                       measures, and made that regulation enter into force retro-
                                                                       actively on 1 January 1998, extending the derogation from the
                                                                       uniform system of exemption from customs duty for a period
                                                                       of eight years overall.
 ---pagebreak--- C 289/26                EN                     Official Journal of the European Communities                                    13.10.2001
The applicant argues that the retroactive entry into force of             Pleas in law and main arguments
that regulation, the excessively long derogation which it makes
from the uniform system of exemption from customs duty,
and the unconditional facility which it confers to limit the
maximum amounts that may be imported duty free conflict                   The applicant has since 1991 operated what is at present the
with primary law and the general principles of Community                  only system covering the whole of Germany for the collection
law. In addition, it maintains that the retrospectively-imposed           and recovery of used sales packaging bearing its trade mark
limitation on import duties is not compatible with the principle          ‘Der Grüne Punkt’ (‘Green Dot’). In order to collect this
of the protection of legitimate expectations and the prohibition          packaging, the applicant has provided 32 million households
on retroactive effect.                                                    with collection containers, which also feature that mark.
                                                                          Pursuant to a uniform agreement governing use of that mark,
                                                                          the applicant authorises national and foreign manufacturers
The applicant maintains that it has suffered considerable                 and/or distributors to affix the mark to sales packaging
damage as a result of the illegality described above, for which           included in the applicant’s exemption system. According to
the European Community, represented by the Council, to                    the applicant, the mark ‘Der Grüne Punkt’ indicates, for the
which the conduct giving rise to liability is imputable, must             commercial sector concerned, the goods of manufacturers and
pay compensation pursuant to Article 235 EC in conjunction                distributors which participate in the applicant’s system with
with Article 288(2) EC.                                                   regard to disposal of actual packaging and which have recourse
                                                                          to the applicant’s disposal services. The mark also signals to
                                                                          consumers that they should dispose of packaging actually
(1) Council Regulation (EC) No 2744/98 of 14 December 1998                featuring that mark — but that packaging alone — in the
    amending Regulation (EC) No 355/94 and extending the tempor-          applicant’s collection containers.
    ary derogation applicable to Germany and Austria (OJ 1998
    L 345, p. 9).
(2) Council Directive 91/191/EEC of 27 March 1991 amending
    Directive 69/169/EEC on tax-paid allowances in intra-Community
    travel and as regards a derogation granted to the Kingdom of          The applicant notified the Commission in 1992 of its statutes,
    Denmark and to Ireland relating to the rules governing travellers’    together with a sample copy of the agreements underlying the
    allowances on imports (OJ 1991 L 94, p. 24).                          system and a sample copy of the agreements governing the
                                                                          use of the mark. The Commission stated in 1997 that it would
                                                                          give a positive ruling on all agreements notified to it. In
                                                                          November 1999 a complaint against the applicant was brought
                                                                          before the Commission.
Action brought on 5 July 2001 by Der Grüne Punkt —                        In the contested decision the Commission ruled that the
Duales System Deutschland AG against the Commission                       applicant had, through the agreements governing use of the
                  of the European Communities                             mark, infringed Article 82 EC, and required the applicant to
                                                                          grant licences for use of the mark ‘Der Grüne Punkt’ also on
                                                                          packaging not participating in the applicant’s system but
                          (Case T-151/01)                                 intended for disposal by a competitor, and to that extent to
                                                                          waive payment of licence fees.
                          (2001/C 289/63)
                   (Language of the Case: German)                         In its action, the applicant claims a breach of Article 82 EC,
                                                                          Article 86(2) EC and Article 3 of Regulation No 17.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 5 July 2001 by Der Grüne Punkt                    The applicant first submits that it has not abused any dominant
— Duales System Deutschland AG, Cologne, represented by                   market position which it may hold. According to the case-law
Wolfgang Deselaers, Bernd Meyring, Eckart Wagner and                      of the Court of Justice, a refusal by the holder of a copyright
Clemens Weidemann, with an address for service in Luxem-                  or design or model patent to grant a licence does not in
bourg.                                                                    principle constitute abuse within the meaning of Article 82 EC.
                                                                          The applicant’s refusal to grant separate licences for use of
                                                                          the mark ‘Der Grüne Punkt’ on packaging participating in
The applicant claims that the Court should:                               competing systems and intended for disposal by way of those
                                                                          systems is therefore not, in its view, abusive. The applicant
—      Annul the defendant’s decision of 20 April 2001                    argues that the contested decision would result in compulsory
       (K(2001) 1106-DE) relating to a proceeding pursuant to             licences for no fees. Any such obligation to grant licences is in
       Article 82 EC (Case COMP D3/34493-DSD);                            principle impermissible, since it would have the effect of
                                                                          reducing a commercial property right to an economic right to
—      Order the defendant to pay the costs of the proceedings.           remuneration.


title: Case C-275/03: Action brought on 25 June 2003 by the Commission of the European Communities against the Portuguese Republic

text:
6.9.2003                 EN                           Official Journal of the European Union                                          C 213/13
       value of the product/service, the size of the market for               a view to being transported subsequently by another road
       the product/service or the effect of a new national                    tractor to the consignee of the goods, who is established
       provision on use, which could be either a total prohibition            outside the customs territory of the Community?
       on use or prohibition or restriction within one of many
       possible areas of use?
                                                                              (1 ) OJ L 253 of 11.10.1993, p. 1.
( 1) of 28 March 1983 laying down a procedure for the provision of
     information in the field of technical standards and regulations (OJ
     L 109 of 26.04.1983, p. 8).
( 2) of 22 March 1988 amending Directive 83/189/EEC laying down
     a procedure for the provision of information in the field of
     technical standards and regulations (OJ L 81 of 26.03.1988,
     p. 75).
                                                                              Action brought on 25 June 2003 by the Commission
( 3) of 23 March 1994 materially amending for the second time
     Directive 83/189/EEC laying down a procedure for the provision
                                                                              of the European Communities against the Portuguese
     of information in the field of technical standards and regulations                                      Republic
     (OJ L 100 of 19.04.1994, p. 30).
                                                                                (Case C-275/03)
                                                                                (2003/C 213/23)
                                                                              An action against the Portuguese Republic was brought before
                                                                              the Court of Justice of the European Communities on 25 June
                                                                              2003 by the Commission of the European Communities,
                                                                              represented by António Caeiros and Klaus Wiedner, acting as
Reference for a preliminary ruling by the Bundesfinanz-                       Agents.
hof by order of that Court of 13 May 2003 in the
proceedings between Hauptzollamt Neubrandenburg and
Jens Christian Siig, trading as ‘Internationale Transport’                    The applicant claims that the Court should:
                            Export-Import
                                                                              —     Declare that, by failing to transpose correctly and com-
                                                                                pletely Council Directive 89/665/EEC of 21 December
                           (Case C-272/03)                                          1989 on the coordination of the laws, regulations and
                                                                                administrative provisions relating to the application of
                                                                                review procedures to the award of public supply and
                                                                                public works contracts (1), the Portuguese Republic has
                           (2003/C 213/22)                                          failed to fulfil its obligations under Community law;
                                                                              —     Order the Portuguese Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesfinanzhof                          Pleas in law and main arguments
(Federal Finance Court) of 13 May 2003, received at the Court
Registry on 24 June 2003, for a preliminary ruling in the
proceedings between Hauptzollamt Neubrandenburg and Jens                      Portuguese law as it stands makes the award of damages for
Christian Siig, trading as ‘Internationale Transport’ Export-                 infringements of Community law in the field of public
Import on the following question:                                             procurement or national rules implementing that law subject
                                                                              to proof, by the person harmed by the infringment, that the
                                                                              misconduct of the State or of the public body was culpably or
                                                                              maliciously intended by the relevant body or office holders or
Is Article 718(3)(d) in conjunction with Article 670(p) of                    administrative officials. Such evidence can be extremely diffi-
Regulation (EEC) No 2454/93 ( 1) to be interpreted as meaning                 cult or impossible to produce. The difficulty or impossibility
that that regulation prohibits the use of a road tractor                      of producing such evidence may result in persons harmed by
registered outside the customs territory of the Community to                  an infringement not obtaining the compensation to which
transport a semi-trailer from a place within the customs                      they are entitled. It is therefore clear that that obligation, not
territory of the Community, where the semi-trailer is loaded                  provided for by Directive 89/665, on persons who have
with goods, to another place within the customs territory of                  suffered damage is likely to undermine the effectiveness of
the Community, where the semi-trailer is merely parked with                   Article 2(1)(c) of that directive.
 ---pagebreak--- C 213/14                EN                        Official Journal of the European Union                                          6.9.2003
Furthermore, it is evident that the difficulty in proving that the        the Italian civil service, periods of comparable work completed
misconduct of the State or public bodies was culpably or                  in the civil service of a Member State other than Italy must be
maliciously intended could, in practice, result in actions for            taken into consideration by the Italian authorities in the same
damages brought by persons harmed by an infringement being                way as experience gained in the Italian civil service.
delayed and, in all likelihood, unsuccessful. Such a situation
undermines the effectiveness of Article 1(1) of the directive,
namely that effective and rapid remedies must be available in             The Commission submits that the current practice in Italy is
the case of infringements of Community law in the field of                not to take into consideration time spent in comparable
public procurement or national rules implementing that law.               occupations in the civil service of other Member States. That
                                                                          practice on the part of the Ministry of Education is inconsistent
                                                                          with the aforesaid laws.
( 1) OJ 1989 L 395, p. 33.
                                                                          (1 ) OJ L 257 of 19.10.1968 p. 2.
Action brought on 26 June 2003 by the Commission of                       Action brought on 24 June 2003 by the Commission
   the European Communities against the Italian Republic                  of the European Communities against the European
                                                                                Economic Interest Grouping Lior and Others
                          (Case C-278/03)                                                           (Case C-280/03)
                          (2003/C 213/24)                                                           (2003/C 213/25)
                                                                          An action against the European Economic Interest Grouping
An action against the Italian Republic was brought before the             Lior, Deira SA, Eutec Srl, Mindshare Bvba, Società Politecnica
Court of Justice of the European Communities on 26 June                   Italiana (SPI) Sarl, Beneport SA, Europe Information Service
2003 by the Commission of the European Communities,                       SA, Managium Sprl, Pi Due Sprl, C.A.R.M.E.N. e.v., Energy
represented by M.-J. Jonczy, acting as Agent.                             Research Group/University College Dublin, ORCA-Organic
                                                                          Reclamation and Composting Ass. AIBS, R.P.A. Spa, Aris
                                                                          Hellas Ltd, and against Lior International n.v., was brought
                                                                          before the Court of Justice of the European Communities
The applicant claims that the Court should:                               on 24 June 2003 by the Commission of the European
                                                                          Communities, represented by H. Støvlbæk, acting as Agent,
—      find that, by failing to take into account professional            assisted by M. Bra, avocat, with an address for service in
       experience gained by European Union citizens in the civil          Luxembourg.
       service of a Member State other than Italy for the
       purposes of their participation in competitions for the
       selection of staff to teach at Italian state schools, the          The Commission of the European Communities claims that
       Italian Republic has failed to fulfil its obligations under        the Court should:
       Article 39 EC and Article 3 of Council Regulation
       No 1612/68 of 15 October 1968 on freedom of move-                  —     declare the present action admissible and well-founded in
       ment for workers within the Community (1);                               its entirety;
—      order the Italian Republic to pay the costs.                       —     As the main plea: hold the Lior Grouping and the
                                                                                defendants jointly liable to pay the Commission the sum
                                                                                of the debit notes issued for all the disputed contracts,
                                                                                namely the total sum of EUR 142 818,86, plus interest
                                                                                under Article 94 of Commission Regulation No 3418/
Pleas in law and main arguments                                                 93 ( 1) until 31 December 2002, and under Article 86(2)(b)
                                                                                of Commission Regulation No 2342/2002 (2) as from
                                                                                1 January 2003, dating from the day after the maturity
                                                                                date of each of the debit notes issued, until the day of
Article 39 EC and Article 3 of Regulation No 1612/68 must                       full payment of the principal debt and interest, more
be interpreted as meaning that, for the purposes of entering                    particularly:


title: Case F-110/06: Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Carpi Badía v Commission (Civil service — Officials — Promotion — Priority points — Incomplete personal file — Omission of priority points from the computer promotion file known as Sysper 2 — Technical problem — A* Promotion Committee — Allocation of a lower number of points than had been proposed by the applicant's superiors)

text:
               12.1.2008

               EN

               Official Journal of the European Union

               C 8/31

         Judgment of the Civil Service Tribunal (Second Chamber) of 22 November 2007 — Carpi Badía v Commission
   (Case F-110/06) (1)

   (Civil service - Officials - Promotion - Priority points - Incomplete personal file - Omission of priority points from the computer promotion file known as ‘Sysper 2’ - Technical problem - A* Promotion Committee - Allocation of a lower number of points than had been proposed by the applicant's superiors)
   (2008/C 8/55)
   Language of the case: French
   Parties

      Applicant: José María Carpi Badía (Luxembourg, Luxembourg) (represented by: B. Cortese and C. Cortese, lawyers)

      Defendant: Commission of the European Communities (represented by: G. Berscheid and K. Herrmann)
   Re:
   Annulment of the Appointing Authority's decision to allocate to the applicant, an official of the Commission who had been omitted in error from the promotion list in his Directorate-General, fewer priority points than the latter wished to give him and which were insufficient to allow his promotion in the 2005 exercise.
   Operative part of the judgment
   The Tribunal:

               1.

               Annuls the decision of the Commission of the European Communities allocating to Mr Carpi Badía an insufficient number of points to allow his promotion in the 2005 exercise;

               2.

               Annuls the decision of the Commission of the European Communities fixing the list of officials promoted in the 2005 exercise, published in Informations Administratives No 85-2005 of 23 November 2005, in so far as it does not contain Mr Carpi Badía's name;

               3.

               Orders the Commission of the European Communities to bear its own costs and to pay those of Mr Carpi Badía.

      (1)  OJ C 281 of 18.11.2006, p 48.


title: Case T-845/14: Order of the General Court of 30 November 2015 — August Brötje v OHIM (HydroComfort) (Community trade mark — Application for the Community word mark HydroComfort — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action manifestly lacking any foundation in law)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/57

         Order of the General Court of 30 November 2015 — August Brötje v OHIM (HydroComfort)
   (Case T-845/14) (1)

   ((Community trade mark - Application for the Community word mark HydroComfort - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action manifestly lacking any foundation in law))
   (2016/C 038/76)
   Language of the case: German

      Parties

      Applicant: August Brötje GmbH (Rastede, Germany) (represented by: S. Pietzcker and C. Spintig, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: W. Schramek, D. Walicka and A. Schifko, acting as Agents)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 23 October 2014 (Case R 1302/2014-5), concerning an application for registration of the word sign HydroComfort as a Community trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               August Brötje GmbH shall pay the costs.

      (1)  OJ C 89, 16.3.2015.


title: Case T-467/07 R: Order of the President of the Court of First Instance of 14 March 2008 — Du Pont de Nemours (France) and Others v Commission (Application for interim relief — Directive 91/414/EEC — Application for suspension of operation of a measure — Admissibility — No urgency)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/20

         Order of the President of the Court of First Instance of 14 March 2008 — Du Pont de Nemours (France) and Others v Commission
   (Case T-467/07 R)
   (Application for interim relief - Directive 91/414/EEC - Application for suspension of operation of a measure - Admissibility - No urgency)
   (2008/C 116/37)
   Language of the case: English
   Parties

      Applicants: Du Pont de Nemours (France) SAS (Puteaux, France); Du Pont Portugal — Serviços, Sociedada Unipessoal, Lda (Lisbon, Portugal); Du Pont Ibérica, SL (Barcelona, Spain); E. I. du Pont de Nemours & Co. USA (Wilmington, Delaware, United States); Du Pont de Nemours Italiana Srl (Milan, Italy); Du Pont De Nemours (Nederland) BV (Dordrecht, Netherlands); Du Pont de Nemours (Deutschland) GmbH (Bad Homburg von der Höhe, Germany); DuPont Poland sp. z o.o. (Warsaw, Poland); DuPont Romania Srl (Bucharest, Romania); DuPont International Operations SARL (Le Grand-Saconnex, Switzerland); Du Pont de Nemours International SA (Le Grand-Saconnex); DuPont Solutions (France) SAS (Puteaux); Du Pont Agro Hellas AE (Khalandri, Greece) (represented by: D. Waelbroeck and I. Antypas, lawyers)

      Defendant: Commission of the European Communities (represented by: L. Parpala and B. Doherty, Agents)
   Re:
   Application for suspension of the operation of Commission Decision 2007/628/EC of 19 September 2007 concerning the non-inclusion of methomyl in Annex I to Council Directive 91/414/EEC and the withdrawal of authorisations for plant protection products containing that substance (OJ 2007 L 255, p. 40), until delivery of the judgment in the main proceedings
   Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               Costs are reserved.


title: Joined Cases T-318/06 to T-321/06: Judgment of the Court of First Instance of 24 March 2009 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA) (Community trade mark — Invalidity proceedings — Multi-coloured Community figurative marks GENERAL OPTICA — Earlier business name Generalóptica — Relative ground for refusal — Local significance of the earlier sign — Articles 8(4) and 52(1)(c) of Regulation (EC) No 40/94)

text:
               16.5.2009

               EN

               Official Journal of the European Union

               C 113/32

         Judgment of the Court of First Instance of 24 March 2009 — Moreira da Fonseca v OHIM — General Óptica (GENERAL OPTICA)
   (Joined Cases T-318/06 to T-321/06) (1)

   (Community trade mark - Invalidity proceedings - Multi-coloured Community figurative marks GENERAL OPTICA - Earlier business name Generalóptica - Relative ground for refusal - Local significance of the earlier sign - Articles 8(4) and 52(1)(c) of Regulation (EC) No 40/94)
   2009/C 113/64
   Language of the case: English

      Parties

      Applicant: Alberto Jorge Moreira da Fonseca, Lda (Santo Tirso, Portugal) (represented by: M. Oehen Mendes and D. Jeffries, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the Court of First Instance: General Óptica, SA (Barcelona, Spain) (represented by: M. Curell Aguilà and X. Fàbrega Sabaté, lawyers)

      Re:

   Four actions brought against the decisions of the First Board of Appeal of OHIM of 8 August 2006 (Cases R 944/2005-1, R 945/2005-1, R 946/2005-1 and R 947/2005-1), concerning four sets of invalidity proceedings between Alberto Jorge Moreira da Fonseca, Lda and General Óptica, SA

      Operative part of the judgment

   The Court:

               1.

               Dismisses the actions.

               2.

               Orders Alberto Jorge Moreira da Fonseca, Lda to pay the costs.

      (1)  OJ C 236, 30.12.2006.


title: Judgment of the Court (Sixth Chamber) of 21 September 2000 in Case C-109/99 (reference for a preliminary ruling from the Tribunal Administratif de Pau): Association Basco-Béarnaise des Opticiens Indépendants v Préfet des Pyrénées-Atlantiques (Directives 73/239/EEC and 92/49/EEC — Objects of insurance undertakings limited to the business of insurance and operations arising directly therefrom, to the exclusion of all other commercial business)

text:
4.11.2000               EN                     Official Journal of the European Communities                                             C 316/13
                 JUDGMENT OF THE COURT                                                      JUDGMENT OF THE COURT
                         (Sixth Chamber)                                                             (Sixth Chamber)
                      of 21 September 2000                                                        of 21 September 2000
                                                                          in Case C-109/99 (reference for a preliminary ruling from
in Case C-46/98 P: European Fertilizer Manufacturers
                                                                          the Tribunal Administratif de Pau): Association Basco-
Association (EFMA) v Council of the European Union and
                                                                          Béarnaise des Opticiens Indépendants v Préfet des Pyréné-
        Commission of the European Communities (1)
                                                                                es-Atlantiques (1)
(Appeal — Anti-dumping — Ineffective pleas — Right to a                   (Directives 73/239/EEC and 92/49/EEC — Objects of
                            fair hearing)                                 insurance undertakings limited to the business of insurance
                                                                          and operations arising directly therefrom, to the exclusion of
                                                                                all other commercial business)
                         (2000/C 316/23)
                                                                                (2000/C 316/24)
                    (Language of the case: English)
                                                                                (Language of the case: French)
In Case C-46/98 P: European Fertilizer Manufacturers Associ-
ation (EFMA), established in Zürich, Switzerland, represented
by D. Voillemot and O. Prost, of the Paris Bar, with an address
for service in Luxembourg at the Chambers of M. Loesch, 11                (Provisional translation; the definitive translation will be published
Rue Goethe — appeal against the judgment of the Court of                                       in the European Court Reports)
First Instance of the European Communities (Fourth Chamber,
Extended Composition) of 17 December 1997 in Case
T-121/95 EFMA v Council [1997] ECR II-2391, seeking to                    In Case C-109/99: reference to the Court under Article 177 of
have that judgment set aside, the other parties to the proceed-           the EC Treaty (now Article 234 EC) from the Tribunal
ings being: Council of the European Union (Agent: S. Mar-                 Administratif de Pau, France, for a preliminary ruling in the
quardt, assisted by H.-J. Rabe and G.M. Berrisch) and Com-                proceedings pending before that court between Association
mission of the European Communities (Agent: N. Khan) — the                Basco-Béarnaise des Opticiens Indépendants and Préfet des
Court (Sixth Chamber), composed of: R. Schintgen, President               Pyrénées-Atlantiques, supported by Mutuelle ‘Adour Mutualité’
of the Second Chamber, acting for the President of the Sixth              and Mutualité Française — Union des Pyrénées-Atlantiques —
Chamber, P.J.G. Kapteyn and H. Ragnemalm (Rapporteur),                    on the interpretation of Article 8(1)(b) of First Council Direc-
Judges; A. La Pergola, Advocate General; L. Hewlett, Adminis-             tive 73/239/EEC of 24 July 1973 on the coordination of laws,
trator, for the Registrar, has given a judgment on 21 September           regulations and administrative provisions relating to the
2000, in which it:                                                        taking-up and pursuit of the business of direct insurance other
                                                                          than life assurance (OJ 1973 L 228, p. 3), as amended by
                                                                          Council Directive 92/49/EEC of 18 June 1992 on the coordi-
1.    Dismisses the appeal;                                               nation of laws, regulations and administrative provisions
                                                                          relating to direct insurance other than life assurance and
                                                                          amending Directives 73/239/EEC and 88/357/EEC (third non-
2.    Orders European Fertilizer Manufacturers Association (EFMA)         life insurance Directive) (OJ 1992 L 228, p. 1) — the Court
      to pay the costs;                                                   (Sixth Chamber), composed of: J.C. Moitinho de Almeida
                                                                          (Rapporteur), President of the Chamber, C. Gulmann and
                                                                          J.-P. Puissochet, Judges; D. Ruiz-Jarabo Colomer, Advocate
3.    Orders the Commission of the European Communities to bear           General; L. Hewlett, Administrator, for the Registrar, has given
      its own costs.                                                      a judgment on 21 September 2000, in which it has ruled:
                                                                          1.     Article 8(1)(b) of First Council Directive 73/239/EEC of
                                                                                24 July 1973 on the coordination of laws, regulations and
(1) OJ C 137 of 2.5.1998.                                                        administrative provisions relating to the taking-up and pursuit
                                                                                of the business of direct insurance other than life assurance, as
                                                                                amended by Council Directive 92/49/EEC of 18 June 1992
                                                                                on the coordination of laws, regulations and administrative
                                                                                provisions relating to direct insurance other than life assurance
                                                                                and amending Directives 73/239/EEC and 88/357/EEC
 ---pagebreak--- C 316/14                 EN                       Official Journal of the European Communities                                          4.11.2000
      (third non-life insurance Directive), does not preclude mutual         amended by Council Regulation (EEC) No 1248/92 of 30 April
      benefit societies engaged solely in insurance business from            1992 (OJ 1992 L 136, p. 7) — the Court, composed of:
      creating between themselves a body with legal personality and          G.C. Rodrı́guez Iglesias, President, D.A.O. Edward (Rappor-
      legal autonomy — such as an association of mutual benefit              teur), L. Sevón and R. Schintgen (Presidents of Chambers),
      societies — which engages in commercial business, provided             P.J.G. Kapteyn, C. Gulmann, J.-P. Puissochet, P. Jann and
      that the capital subscribed to that body by those societies does       H. Ragnemalm, Judges; P. Léger, Advocate General; D. Louter-
      not exceed the value of their free assets and provided that, in        man-Hubeau, Principal Administrator, for the Registrar, has
      each case, the society’s liability is limited to the value of its      given a judgment on 26 September 2000, in which it has
      capital contribution.                                                  ruled:
2.    Article 8(1)(b) of Directive 73/239, as amended by Directive
      92/49, is sufficiently precise and unconditional to be relied          Where the competent authorities of a Member State apply a provision
      upon before the national courts as against the administrative          of law
      authorities and entails the inapplicability of any rule of national
      law incompatible with it.                                              —      which fixes the amount of the retirement pension awarded to a
                                                                                married worker,
(1) OJ C 188 of 3.7.1999.
                                                                             —      which provides for that pension to be reduced, by the amount of
                                                                                a pension awarded to his spouse under the scheme of another
                                                                                Member State, but
                                                                             —      which provides for the application of a derogating clause in
                                                                                respect of overlapping where the pension paid elsewhere is less
                                                                                than a certain amount,
                  JUDGMENT OF THE COURT
                                                                             it is contrary to Article 48 of the EC Treaty (now, after amendment,
                                                                             Article 39 EC) for those authorities to reduce the amount of the
                       of 26 September 2000                                  pension awarded to a migrant worker by the amount of a pension
                                                                             awarded to his spouse under the scheme of another Member State,
in Case C-262/97 (reference for a preliminary ruling from                    when the grant of that latter pension does not involve any increase in
the Arbeidshof, Antwerp (Belgium)): Rijksdienst voor                         the couple’s total income.
               Pensioenen v Robert Engelbrecht (1)
(Social security — Freedom of movement for workers —                         (1) OJ C 295 of 27.9.1997.
Retirement pension — Increase in respect of dependent
spouse — Articles 12 and 46a of Regulation (EEC)
No 1408/71 — Overlapping of pensions awarded under the
              legislation of different Member States)
                           (2000/C 316/25)
                     (Language of the case: Dutch)                           Reference for a preliminary ruling by the Court of Appeal
                                                                             (England & Wales), by order of that court of 20 July 2000,
                                                                             in the case of A. Lawrence and others against 1) Regent
(Provisional translation; the definitive translation will be published       Office Care Ltd, 2) Commercial Catering Group and
                    in the European Court Reports)                                               3) Mitie Secure Services Ltd
In Case C-262/97: reference to the Court under Article 177 of                                           (Case C-320/00)
the EC Treaty (now Article 234 EC) from the Arbeidshof,
Antwerp (Belgium) for a preliminary ruling in the proceedings                                           (2000/C 316/26)
pending before that court between Rijksdienst voor Pensioenen
and Robert Engelbrecht — on the interpretation of Article 48
of the EC Treaty (now, after amendment, Article 39 EC) and                   Reference has been made to the Court of Justice of the
Articles 12(2) and 46a(3)(c) of Council Regulation (EEC)                     European Communities by an order of the Court of Appeal
No 1408/71 of 14 June 1971 on the application of social                      (England & Wales) of 20 July 2000, which was received at the
security schemes to employed persons, to self-employed                       Court Registry on 22 August 2000, for a preliminary ruling in
persons and to members of their families moving within the                   the case of A. Lawrence and others against 1) Regent Office
Community, as amended and updated by Council Regulation                      Care Ltd, 2) Commercial Catering Group and 3) Mitie Secure
(EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230, p. 6), as                    Services Ltd, on the following questions:


title: Case C-114/14: Action brought on 10 March 2014 – European Commission v Kingdom of Sweden

text:
               5.5.2014

               EN

               Official Journal of the European Union

               C 135/26

         Action brought on 10 March 2014 – European Commission v Kingdom of Sweden
   (Case C-114/14)
   2014/C 135/31
   Language of the case: Swedish

      Parties

      Applicant: European Commission (represented by: J. Enegren and L. Lozano Palacios, acting as Agents)

      Defendant: Kingdom of Sweden

      Form of order sought

               —

               Declare that, by failing to exempt postal services supplied by the public postal services and the supply of goods incidental thereto from value added tax and by failing to exempt the supply at face value of postage stamps valid for use for postal services within the country from value added tax, the Kingdom of Sweden has failed to fulfil its obligations under Articles 132(1)(a) and 135(1)(h) of Council Directive 2006/112/EC of the European Parliament and of the Council of 28 November 2006 on the common system of value added tax. (1)

               —

               order the Kingdom of Sweden to pay the costs.

      Pleas in law and main arguments

   The European Commission has brought an action against the Kingdom of Sweden under Article 258 TFEU on the following grounds.
   Article 132(1)(a) of Directive 2006/112 states that the Member States are to exempt the supply by the public postal services of services and the supply of goods incidental thereto from liability for tax.
   Article 135(1)(h) of Directive 2006/112 provides that the Member States are to exempt the supply at face value of postage stamps valid for use for postal services from liability for tax.
   The Kingdom of Sweden has instructed Posten AB to supply the universal services involving the permanent provision of a postal service of specified quality at all points in their territory at affordable prices for all users in accordance with Article 3 of Directive 97/67/EC of the European Parliament and of the Council of 15 December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service. (2)

   The Commission is of the opinion that Posten AB, by supplying the universal services described in Article 3 of Directive 97/67, constitutes a public postal service within the meaning of Article 132 of Directive 2006/112.
   The Kingdom of Sweden has failed to exempt the postal services supplied by Posten AB and the supply at face value of postage stamps valid for use for postal services within the country from liability for tax.

      (1)  OJ 2006 L 347, p. 1.

      (2)  OJ 1998 L 15, p. 14.


title: Case F-22/12: Action brought on 17th February 2012 — ZZ v Commission and CEPOL

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/35

         Action brought on 17th February 2012 — ZZ v Commission and CEPOL
   (Case F-22/12)
   2012/C 138/81
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: L. Levi, M. Vandenbussche, lawyers)

      Defendants: European Commission and European Police College

      Subject-matter and description of the proceedings

   The annulment of the decisions rejecting the applicant’s demand to be granted the dependent child and education allowances for his wife's three children for the period in which they were still living in the Philippines.

      Form of order sought

               —

               The annulment of the implicit decision of 25th March 2011 and of the explicit decision adopted by PMO on 11th July 2011, confirmed by the decision of 9th November 2011 rejecting the complaint, insofar as they reject the request of the applicant to be granted the dependent child and education allowances for his wife's three children for the period in which they were still living in the Philippines;

               —

               as a consequence, the recognition of the applicant's entitlement to the said allowances;

               —

               the compensation of the applicant's material prejudice consisting of retroactive payment of the dependent child and education allowances since 1st April 2009, provisionally evaluated at 33 673,31 euros, with late interest at the European Central Bank key rate plus two percentage points;

               —

               the compensation of the applicant's moral prejudice evaluated at 20 000 euros;

               —

               the order for the defending parties to pay the costs.


title: Judgment of the Court (First Chamber) of 16 January 2003 in Case C-122/02: Commission of the European Communities v Kingdom of Belgium (Failure of a Member State to fulfil its obligations — Failure to transpose Directive 98/83/EC)

text:
22.2.2003                EN                          Official Journal of the European Union                                                C 44/11
2.    Orders the United Kingdom of Great Britain and Northern                                     ORDER OF THE COURT
      Ireland to pay the costs.
                                                                                (Sixth Chamber)
( 1) OJ C 109 of 4.5.2002.
                                                                                of 21 November 2002
                                                                             in Case C-360/01: Italian Republic v Commission of the
                                                                             European Communities and Council of the European
                                                                                Union ( 1)
                  JUDGMENT OF THE COURT
                           (First Chamber)                                   (Sugar — Pricing system — Marketing year 2001/2002 —
                                                                             Regionalisation — Non-deficit areas — Classification of
                                                                             Italy — Validity of Regulations (EC) Nos 1263/2001 and
                         of 16 January 2003                                  1260/2001 — Action for annulment — Manifestly inadmis-
                                                                                sible in part)
in Case C-122/02: Commission of the European Communi-
                  ties v Kingdom of Belgium (1)
                                                                                (2003/C 44/21)
(Failure of a Member State to fulfil its obligations — Failure
                to transpose Directive 98/83/EC)                                                  (Language of the case: Italian)
                           (2003/C 44/20)
                                                                             (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
                     (Language of the case: French)
(Provisional translation; the definitive translation will be published
                    in the European Court Reports)
                                                                             In Case C-360/01, Italian Republic (Agent: U. Leanza, and G de
                                                                             Bellis) v Commission of the European Communities (Agent: C.
                                                                             Cattabriga) and Council of the European Union (Agent:
In Case C-122/02, Commission of the European Communities                     F. P. Ruggeri Laderchi) — application for the annulment of
(Agents: G. Valero Jordana and J. Adda) v Kingdom of Belgium                 Article 1 of Commission Regulation (EC) No 1263/2001 fixing
(Agent: A. Snoecx): Application for a declaration that, by                   the derived intervention prices for white sugar for the 2001/
failing to adopt all the laws, regulations and administrative                02 marketing year (OJ 2001 L 178, p. 60), in so far as it fails
provisions necessary to comply fully with Council Directive                  to fix derived intervention prices for white sugar for all the
98/83/EC of 3 November 1998 on the quality of water                          areas of Italy and, in so far as necessary, the annulment of
intended for human consumption (OJ 1998 L 330, p. 32) or,                    Article 2(1)(a) of Council Regulation (EC) No 1260/2001 of
at any rate, by failing fully to inform the Commission thereof,              19 June 2001 on the common organisation of the markets in
the Kingdom of Belgium has failed to fulfil its obligations                  the sugar sector (OJ 2001 L 178, p. 1) — the Court
under that directive, the Court (First Chamber), composed of:                (Sixth Chamber), composed of: J.-P. Puissochet (President of
M. Wathelet, President of the Chamber, P. Jann and A. Rosas                  Chamber), R. Schintgen, C. Gulmann, V. Skouris and N. Col-
(Rapporteur), Judges; L.A. Geelhoed, Advocate General;                       neric (Rapporteur), Judges; J. Mischo, Advocate General;
R. Grass, Registrar, has given a judgment on 16 January 2003,                R. Grass, Registrar, gave a judgment on 21 November 2002,
in which it:                                                                 the operative part of which is as follows:
1.    Declares that, by failing to adopt all the laws, regulations and       1.    The application is dismissed as manifestly inadmissible inas-
      administrative provisions necessary to comply fully with Council             much as it is directed against the Council.
      Directive 98/83/EC of 3 November 1998 on the quality of
      water intended for human consumption, the Kingdom of
      Belgium has failed to fulfil its obligations under that directive;     2.    The Italian Republic is ordered to pay the costs relating to that
                                                                                part of the application.
2.    Orders the Kingdom of Belgium to pay the costs.
                                                                             (1 ) OJ C 331 of 24.11.2001.
( 1) OJ C 131 of 1.6.2002.


title: Order of the Court of First Instance of 30 September 2003 in Case T-182/02: Uni-Pharma Kleon Tsetis Farmakeftika Ergastiria Anonimos Viomichaniki kai Emporiki Eteria against Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Community trade mark — Opposition — Amicable settlement — Not necessary to give judgment)

text:
13.12.2003              EN                          Official Journal of the European Union                                            C 304/29
3.    The interveners are to bear their own costs.                                ORDER OF THE COURT OF FIRST INSTANCE
(1) OJ C 166 of 30.5.1998.                                                                       of 30 September 2003
                                                                            in Case T-182/02: Uni-Pharma Kleon Tsetis Farmakeftika
                                                                            Ergastiria Anonimos Viomichaniki kai Emporiki Eteria
                                                                            against Office for Harmonisation in the Internal Market
                                                                                (Trade Marks and Designs) (OHIM) (1)
       ORDER OF THE COURT OF FIRST INSTANCE
                                                                            (Community trade mark — Opposition — Amicable settle-
                                                                                ment — Not necessary to give judgment)
                      of 29 September 2003
in Case T-183/01: Alza Corporation v Office for Harmon-                                             (2003/C 304/54)
isation in the Internal Market (Trade Marks and Designs)
                             (OHIM) (1)
                                                                                (Language of the case: French)
(Community trade mark — Opposition — Amicable settle-
                 ment — No need to adjudicate)
                          (2003/C 304/53)                                   In Case T-182/02: Uni-Pharma Kleon Tsetis Farmakeftika
                                                                            Ergastiria Anonimos Viomichaniki kai Emporiki Eteria (Uni-
                    (Language of the case: English)                         Pharma ABEE), established in Kato Kifisia, Attica (Greece),
                                                                            represented by M. Bra and E. Gioti-Manthou, lawyers, with
                                                                            an address for service in Luxembourg, against Office for
                                                                            Harmonisation in the Internal Market (Trade Marks and
                                                                            Designs) (OHIM) (Agents: O. Montalto, E. Joly and O. Wael-
In Case T-183/01, Alza Corporation, established in Mountain                 broeck), with BIOFARMA S.A., established in Neuilly-sur Seine
View, California (United States of America), represented by                 (France) and represented by V. Gil Vega and A. Ruiz López,
M. Edenborough, lawyer, with an address for service in                      lawyers, intervening before the Court of First Instance —
Luxembourg, v Office for Harmonisation in the Internal                      action brought against the decision of the Fourth Board of
Market (Trade Marks and Designs) (OHIM) (Agent: S. Laitinen),               Appeal of the Office for Harmonisation in the Internal Market
the intervener before the Court of First Instance being: HEXAL              (Trade Marks and Designs) of 27 February 2002 (Case R 725/
AG, established in Holzkirchen (Germany), represented by A.                 2000-4) relating to opposition proceedings between Uni-
Spranger, lawyer: ACTION brought against the decision of the                Pharma Kleon Tsetis Farmakeftika Ergastiria Anonimos Vio-
Second Board of Appeal of the Office for Harmonisation in                   michaniki kai Emporiki Eteria (Uni-Pharma ABEE) and
the Internal Market (Trade Marks and Designs) of 23 May                     BIOFARMA S.A. — the Court of First Instance (Fourth
2001 (Case R 321/1999-2) relating to opposition proceedings                 Chamber), composed of V. Tiili, President, P. Mengozzi and
between Alza Corporation and Hexal AG, the Court of First                   M. Vilaras, Judges; H. Jung, Registrar, made an order on
Instance (Fourth Chamber), composed of: V. Tiili, President,                30 December 2003, the operative part of which is as follows:
P. Mengozzi and M. Vilaras, Judges; H. Jung, Registrar, has
made an order on 29 September 2003, the operative part of
which is as follows:                                                        1.   It is no longer necessary to give judgment on the present
                                                                                application.
1.    There is no longer any need to adjudicate on this action.
                                                                            2.   The applicant shall bear its own costs and those of OHIM.
2.    The applicant shall bear its own costs, as well as those of the
      defendant.
                                                                            3.   The intervener shall bear its own costs.
3.    The intervener shall bear its own costs.
                                                                            (1) OJ C 202, 24.8.2002.
(1 ) OJ C 317 of 10.11.2001.


title: Case T-66/08: Action brought on 5 February 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)

text:
               9.5.2008

               EN

               Official Journal of the European Union

               C 116/21

         Action brought on 5 February 2008 — British Sky Broadcasting Group v OHIM — Vortex (SKY)
   (Case T-66/08)
   (2008/C 116/39)
   Language in which the application was lodged: English
   Parties

      Applicant: British Sky Broadcasting Group plc (Isleworth, United Kingdom) (represented by: J. Barry, Solicitor)

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

      Other party to the proceedings before the Board of Appeal: Vortex SA (Paris, France)
   Form of order sought

               —

               Order, on the basis that the First Board of Appeal has infringed Council Regulation (EC) No 40/94 and/or rules of law relating to its application, that:

                           —

                           in the decision of the First Board of Appeal, while the ultimate conclusion of the First Board of Appeal to reject the opposition should not be disturbed, that part of the contested decision (in particular paragraphs 18 and 19 thereof) which reject the applicant's arguments relating to the Agreement, should be annulled;

                           —

                           the contested decision be altered to hold that the Agreement; applies to trade marks other than the particular registrations identified in the Agreement and extends to future marks; precludes the opponent from opposing or objecting in any manner whatsoever to any use or registration by BSkyB of trade marks containing ‘SKY’ other than ‘SKYROCK’ and ‘SKYZIN’ both of which were as determined by the French courts; and is a final and binding settlement agreement between BSkyB and the opponent as determined by the French courts (including to the highest level in France);

                           —

                           the contested decision be altered and revisited so as to deal with and address all of the grounds raised by BSkyB in its response to the opposition;

                           —

                           OHIM pay the costs and fees of BSkyB.

         Pleas in law and main arguments

      Applicant for the Community trade mark: The applicant

      Community trade mark concerned: The figurative mark ‘SKY’ for goods and services in classes 9, 16, 18, 25, 28, 35, 38, 41 and 42 — application No 3 166 378

      Proprietor of the mark or sign cited in the opposition proceedings: Vortex SA

      Mark or sign cited: The Community and national word marks ‘SKYROCK’ for goods and services classes 9, 16, 18, 25, 28, 35, 38, 41 and 42

      Decision of the Opposition Division: Opposition upheld for all the goods and services in classes 9, 38 and 41, as well as for ‘advertising’ in class 35

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision and rejection of the opposition in its entirety

      Pleas in law: Without contesting the operative part of the contested decision, the applicant contends that the reasoning of the Board of Appeal infringes Council Regulation No 40/94 and the rules of law relating to its application.


title: Case T-238/07: Judgment of the Court of First Instance of 9 July 2009 — Ristic and Others v Commission (Animal Health — Protective measures — Decision 2007/362/EC — Action for annulment — No need to adjudicate — Action for damages — Principle of proportionality — Principle of protection of legitimate expectations — Duty of care — Right to property and right to carry on economic activity)

text:
               29.8.2009

               EN

               Official Journal of the European Union

               C 205/33

         Judgment of the Court of First Instance of 9 July 2009 — Ristic and Others v Commission
   (Case T-238/07) (1)

   (Animal Health - Protective measures - Decision 2007/362/EC - Action for annulment - No need to adjudicate - Action for damages - Principle of proportionality - Principle of protection of legitimate expectations - Duty of care - Right to property and right to carry on economic activity)
   2009/C 205/60
   Language of the case: German

      Parties

      Applicants: Ristic AG (Burgthann, Germany); Piratic Meeresfrüchte Import GmbH (Burgthann, Germany); Prime Catch Seafood GmbH (Burgthann, Germany); and Rainbow Export Processing, SA (represented by: H. Schmidt, lawyer)

      Defendant: Commission of the European Communities (represented by: F. Erlbacher and A. Szmytkowska, Agents)

      Re:

   First, application for annulment of Commission Decision 2007/362/EC of 16 May 2007 amending Decision 2004/432/EC on the approval of residue monitoring plans submitted by third countries in accordance with Council Directive 96/23/EC (OJ 2007 L 138, p. 18), and, second, application for damages.

      Operative part of the judgment

   The Court:

               1.

               Declares that there is no need to adjudicate on the application for annulment;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders Ristic AG, Piratic Meeresfrüchte Import GmbH, Prime Catch Seafood GmbH and Rainbow Export Processing, SA to pay the costs, including those of the interlocutory proceedings.

      (1)  OJ C 211, 8.9.2007.


title: Case C-182/03: Action brought on 28 April 2003 by the Kingdom of Belgium against the Commission of the European Communities

text:
7.6.2003                EN                        Official Journal of the European Union                                          C 135/21
Action brought on 15 April 2003 by the Commission of                      treaty. The same is true of the content of the framework
the European Communities against the Council of the                       decision. The matters which Articles 2 and 3 of the framework
                          European Union                                  decision require Member States to regard as environmental
                                                                          offences refer, for the most part, to actions covered by
                                                                          Community law.
                          (Case C-176/03)
                          (2003/C 135/31)                                 Article 47 of the Treaty on European union lays down the
                                                                          primacy of Community provisions and it is therefore not
                                                                          legally possible to adopt acts on the basis of that treaty if there
                                                                          is Community competence to do so.
An action against the Council of the European Union was
brought before the Court of Justice of the European Communi-              The Commission also claims that the Communities have
ties on 15 April 2003 by the Commission of the European                   competence to require the Member States to impose criminal
Communities, represented by J.-F. Pasquier and W. Bog-                    penalties where that is necessary in order to guarantee the
ensberger, acting as Agents, with an address for service in               effect and efficacy of Community law.
Luxembourg.
                                                                          In that regard, the Commission submits, first, that according
The Commission of the European Communities claims that                    to settled case-law of the Court of Justice, as set out for
the Court should:                                                         example in Case 68/88 Commission v Greece [1989] ECR
                                                                          2966, the Member States must ensure that infringements
—     declare that the Council Framework Decision of 27 Janu-             of Community law are penalised under conditions, both
      ary 2003 on the protection of the environment through               procedural and substantive, which are analogous to those
      criminal law ( 1) is unlawful;                                      applicable to infringements of national law of a similar
                                                                          nature and importance and which make the penalty effective,
                                                                          proportionate and dissuasive. The Member States may there-
—     annul that framework decision;
                                                                          fore be required to provide criminal penalties for infringements
                                                                          of Community law. The Community measure may even itself
—     order the Council of the European Union to pay the costs.           define the types of penalties which the Member States may
                                                                          establish (see, for example, Article 31 of Council Regulation
                                                                          (EEC) No 2847/93 of 12 October 1993 establishing a control
                                                                          system applicable to the common fisheries policy ( 2).
Pleas in law and main arguments
                                                                          The Commission observes, next, that as Community law
The action is based on Article 35(6) of the Treaty on European            currently stands, if the Community legislature considers that
Union.                                                                    compliance with the rules which it lays down can be guaran-
                                                                          teed only by the imposition of criminal penalties, it has power
                                                                          to require the Member States to provide for such penalties.
The Commission unreservedly supports the objectives of the
framework decision but disputes the legal basis adopted in
                                                                          (1 ) Framework Decision 2003/80/JHI, OJ L 29, 5.2.2003, p. 55.
order to provide for the measures in question, namely the
                                                                          (2 ) OJ L 261, 20.10.1993, p. 1.
Treaty on European Union and in particular Articles 29, 31(e)
and 34(2)(b) of that treaty. The measures in question are
clearly matters of Community competence. The choice of
legal basis is important in this case because of the special
institutional features of Title VI of the Treaty on European
Union which, inter alia, does not have any equivalent to the
infringement procedure.
                                                                          Action brought on 28 April 2003 by the Kingdom
                                                                          of Belgium against the Commission of the European
The choice of legal basis of an act must, according to the case-                                    Communities
law, be based on objective criteria that are susceptible to
judicial review, as regards in particular the purpose and content                                 (Case C-182/03)
of the act.
                                                                                (2003/C 135/32)
In the present case, both the purpose and the content of
the framework decision manifestly fall within the scope of
Community competencies. The aim of the framework decision                 An action against the Commission of the European Communi-
is to protect the environment by imposing penalties on                    ties was brought before the Court of Justice of the European
infringements adversely affecting it, which corresponds to                Communities on 28 April 2003 by the Kingdom of Belgium,
Community competencies such as those referred to in Title XIX             represented by A. Snoecx, acting as Agent, assisted by P. Kelley,
of the EC Treaty (Articles 174 to 176) and by Article 6 of that           B. van der Walle de Ghelcke and J. Wouters, avocats.
 ---pagebreak--- C 135/22              EN                        Official Journal of the European Union                                         7.6.2003
The Kingdom of Belgium claims that the Court should:                    Second plea: infringement of Article 88(2) of the EC Treaty
                                                                        and infringement of the principle of legitimate expectation
—     annul the decision of the Commission of the European              resulting from the Council Decision on the code of conduct.
      Communities C(2003) final of 17 February 2003 con-
      cerning the aid scheme implemented by the Kingdom of              A code of conduct for business taxation was adopted by
      Belgium in favour of coordination centres established in          resolution of the Council and representatives of governments
      Belgium, inasmuch as it does not authorise Belgium to             of the Member States, meeting within the Council, on 1 Decem-
      grant, even temporarily, renewal of coordination centre           ber 1997. With regard to the 66 taxation measures covered by
      status to the coordination centres which benefited from           the code of conduct, including the coordination centres
      the scheme as at 31 December 2000;                                scheme, the ECOFIN Council of 26 and 27 November 2000
                                                                        decided that, as regards undertakings benefiting from a harmful
—     order the Commission to pay the costs.
                                                                        regime on 31 December 2000, the effects of those regimes
                                                                        would expire at the latest on 31 December 2005, whether
                                                                        they are regimes granted for a fixed period or not. Lastly, on
Pleas in law and main arguments                                         21 January 2003 agreement in principle was made within the
                                                                        Council relating to the application of the code of conduct
                                                                        which provides in particular that the coordination centres
First plea: infringement of Article 88(2) of the EC Treaty,
                                                                        which benefited from the regime on 31 December 2000 could
infringement of the principle of legal certainty, of the protec-        continue to benefit fully from their authorisation for the 10-
tion of legitimate expectations and of proportionality in that
                                                                        year period under way and until 31 December 2010 at the
the Commission did not allow a reasonable period for the                latest.
Belgian State and the coordination centres whose individual
authorisations expire before 31 December 2010; more specifi-
cally in the months following the notification of the decision.         The contested decision prohibits renewal of authorisations
                                                                        expiring after the notification of the decision and therefore
Article 2 of the decision requires the Belgian State to repeal          infringes the legitimate expectations of both the Belgian State
                                                                        and of the coordination centres with regard to the extension
the tax regime for the coordination centres or to amend it so
as to make it compatible with the common market and                     of existing authorisations until 31 December 2010.
Article 3 of the decision fixes a period of two months within
which to take the measures necessary to comply with that
obligation. That period is manifestly insufficient, as the scheme       Third plea: infringement of the principle of equal treatment.
in question can be amended only by a formal law adopted by
the Parliament. The Commission thus infringes Article 88(2)             The system adopted by the Commission introduces unjustifia-
of the EC Treaty, which, according to the case-law, is based on         ble discrimination between the situation of centres whose
the notion of cooperation between the Member State and the              approval has been renewed shortly before 31 December 2000
Commission. The requirement for a reasonable period applies             and who benefit from the regime until 2010 and centres
all the more in a case such as this where the scheme in                 whose authorisation will expire in 2003 and which lose the
question, notified in the 1980s, had not been considered by             benefit of the regime because of an expiration date of only a
the Commission to constitute an aid.                                    few months.
Nor is the period reasonable for the coordination centres. The
authorisations are for 10 years and are renewable on the sole           Fourth plea: infringement of the obligation to state reasons.
condition that the centre continues to comply with the
conditions laid down by the rules. The recitals of the decision         The Commission does not give reasons that are adequate in
recognise that there is a need to protect the legitimate                law to explain why it has not provided a transitional period
expectation of existing coordination centres, but the decision          for centres whose authorisation expires shortly after the date
prohibits any renewal of approvals, even for those which                of the decision. Lastly, the decision is wholely deficient in
expire in the months following notification of the decision.            regard to the failure to take into account, for implementation
For a number of the centres concerned, the decision entails the         of transitional measures, of the period from 1 January 2001 to
immediate cessation of their activities.                                16 February 2003.


title: Case C-259/03: Action brought on 17 June 2003 by the Commission of the European Communities against the Kingdom of Denmark

text:
23.8.2003             EN                          Official Journal of the European Union                                             C 200/13
Action brought on 16 June 2002 by the Commission of the                                and criminal or administrative proceedings against
  European Communities against the Kingdom of Belgium                                  those responsible for overfishing,
                         (Case C-255/03)                                         —     by failing to issue a provisional prohibition of fishing
                                                                                from fishing vessels flying the Danish flag or regis-
                         (2003/C 200/21)                                               tered in Denmark when the quota allocated was to
                                                                                be deemed to have been exhausted,
An action against the Kingdom of Belgium was brought before                      the Kingdom of Denmark has failed to fulfil its obliga-
the Court of Justice of the European Communities on 16 June                      tions both under Article 5(2) of Regulation (EEC) No 170/
2003 by the Commission of the European Communities,                              83 (1), subsequently replaced by Article 9(2) of Regulation
represented by C.-F. Durand and F. Simonetti, acting as Agents.                  (EEC) No 3760/92 (2), and under Article 1 of Regulation
                                                                                (EEC) No 2241/87 (3), subsequently replaced by Articles 2
The applicant claims that the Court should:                                      and 31 of Regulation (EEC) No 2847/93 (4), and also
                                                                                under Article 11(1) and (2) of Regulation (EEC)
1.    Declare that, by maintaining in force a provision which                    No 2241/87, subsequently replaced by Article 21(1)
      accords the ‘walloon label of quality’ only to products of                 and (2) of Regulation (EEC) No 2847/93;
      a certain quality manufactured or processed in Wallonie,
      the Kingdom of Belgium has failed to fulfil its obligations
      under Article 28 of the Treaty establishing the European            2)     order the Kingdom of Denmark to pay the costs.
      Community; and
2.    Order the Kingdom of Belgium to pay the costs.
                                                                          Pleas in law and main arguments
Pleas in law and main arguments
                                                                          —      Disregard of Article 5(2) of Council Regulation (EEC)
The legislation adopted by the Walloon Government under                          No 170/83 and Article 9(2) of Council Regulation (EEC)
which the denomination ‘walloon label of quality’ may be                         No 3760/92 and also of Article 1 of Council Regulation
granted only to products responding to certain quality criteria                  (EEC) No 2241/87 and Articles 2 and 31 of Council
and which are manufactured or processed in Wallonie is                           Regulation (EEC) No 2847/93.
contrary to Article 28 EC inasmuch as it constitutes a measure
having an effect equivalent to a quantitative restriction on                     The Danish Government has acknowledged that for
importation. Although the Belgian Government has undertaken                      certain stocks the quotas allocated for the years 1990,
to amend that provision, it was still in force at the expiry of                  1991, 1992 and 1994 were substantially exceeded. The
the period prescribed by the reasoned opinion.                                   monitoring carried out of fishery activities and the
                                                                                measures taken concerning the management and control
                                                                                of those activities were in the Commission's opinion
                                                                                inadequate.
                                                                                The Danish authorities moreover in certain cases omitted
Action brought on 17 June 2003 by the Commission of                              to bring criminal proceedings agains the persons respon-
the European Communities against the Kingdom of                                  sible for non-compliance with the rules on control and
                            Denmark                                              conservation.
                         (Case C-259/03)                                  —      Disregard of Article 11(1) and (2) of the said Council
                                                                                Regulation No 2241/87 and Article 21(1) and (2) of the
                         (2003/C 200/22)                                         said Council Regulation No 2847/93.
                                                                                The exceeding of the quotas is due to a large extent, as is
An action against the Kingdom of Denmark was brought                             also accepted by the Danish Government, to the fact that
before the Court of Justice of the European Communities on                       the fishing ban was introduced too late.
17 June 2003 by the Commission of the European Commu-
nities, represented by H.P. Hartvig, acting as Agent, with an
address for service in Luxembourg.                                        (1) Council Regulation (EEC) No 170/83 of 25 January 1983 estab-
                                                                              lishing a Community system for the conservation and management
                                                                              of fishery resources, OJ L 24 of 27.1.1983, p. 1.
The applicant claims that the Court should:                               (2) Council Regulation (EEC) No 3760/92 of 20 December 1992
                                                                              establishing a Community system for fisheries and aquaculture, OJ
1)    declare that,                                                           L 389 of 31.12.1992, p. 1.
                                                                          (3) Council Regulation (EEC) No 2241/87 of 23 July 1987 establishing
      —    by failing to adopt detailed rules for the utilisation of          certain control measures for fishing activities, OJ L 207 of
           the quotas allocated to Denmark,                                   29.7.1987, p. 1.
                                                                          (4) Council Regulation (EEC) No 2847/93 of 12 October 1993 estab-
      —    by failing to ensure compliance with the EC provi-                 lishing a control system applicable to the common fisheries policy,
           sions on the conservation of fishery resources by                  OJ L 261 of 20.10.1993, p. 1.
           means of monitoring of fishing activity, appropriate
           inspections of landings and registration of catches,


title: Case T-51/09: Action brought on 9 February 2009 — Commission v Antiche Terre

text:
               4.4.2009

               EN

               Official Journal of the European Union

               C 82/32

         Action brought on 9 February 2009 — Commission v Antiche Terre
   (Case T-51/09)
   (2009/C 82/57)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: A. Dal Ferro, lawyer, V. Joris, Agent)

      Defendant: Antiche Terre scarl Società Agricola Cooperativa (Arezzo, Italy)
   Forms of order sought

               —

               Order the defendant to repay the principal sum of EUR 479 332,40, together with the interest accrued at the rate set out in Article 5.4.3 of the general conditions of the Contract (ECB rate + 2 %) from the date of receipt of the sums (from 4 December 1997 for the sum of EUR 461 979,00, and from 18 December 1997 for the sum of EUR 17 353,40) until 1 April 2003, in addition to the interest accrued at the same rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

               —

               In the alternative, order the defendant to repay the principal sum of EUR 479 332,40, together with the interest accrued at the Italian statutory rate from 4 January 2004 until the date of final settlement, less the sum of EUR 461 979 called on and paid on 25 January 2005;

               —

               In any event, order Antiche Terre Società Agricola Cooperativa to pay the costs.

         Pleas in law and main arguments
   By the present action, brought under Article 238 EC, the Commission seeks the repayment of the sums advanced to the limited liability cooperative Antiche Terre scarl Società Agricola Cooperativa (‘Antiche Terre’), in the context of the THERMIE programme, for the creation of an installation producing electricity (10 MWe) through an innovative biomass combustion process. The reference contract (No BM/188/96) was drawn up between the Commission, Antiche Terre (as coordinator) and two other companies having their seats in Finland and Spain respectively.
   Antiche Terre built up a number of significant delays in commencing its own task, and it requested several extensions so as to be able to complete its work, which it obtained. It also proposed a substantial change to the installation, which would have meant abandoning the innovative biomass combustion process and producing energy in substantially smaller quantities than had been estimated.
   The Commission was unable to authorise such a fundamental change to the project, which would have had no chance of funding under the THERMIE programme.
   Consequently, since it was found that Antiche Terre would not have completed the installation in accordance with the terms of the project originally submitted, the Commission was forced to withdraw from contract BM/188/96, making it clear moreover that the failure to complete the original project could have entailed the repayment in whole or in part of the advance paid to Antiche Terre.
   The Commission therefore asked Antiche Terre on a number of occasions to repay the sums advanced, in the amount of EUR 479 332,40, but it did not receive any payment. After calling on the guarantee, and after further requests for repayment of the balance, the Commission therefore brings the present action before the Court of First Instance.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 16 February 1995 in Case T-5/95 R: Amicale des Résidents du Square d'Auvergne v. Commission of the European Communities

text:
8 . 4 . 95             EN                  Official Journal of the European Communities                                  No C 87/ 13
pursuant to Article 85 of the EC Treaty (IV/32.031 —                  Jean-Marc Florand, of the Paris Bar v. Commission of the
Auditel ) (2) — the Court of First Instance (Enlarged Fourth          European Communities (Agents: G. Marenco and W. Wils )
Chamber ), composed of K. Lenaerts, President, and R.                 — application for ( 1 ) suspension of operation of the
Schintgen, C. P. Briet, R. Garcfa-Valdecasas, H. Kirschner            decisions said to be contained in the Commission's letters of
and C. W. Bellamy, Judges; H. Jung, Registrar, made an                20 September, 5 October and 26 October 1994 in which it
order on 6 February 1995 , the operative part of which is as          rejected the applicant's complaint concerning alleged
follows:                                                              anti-competitive practices by various undertakings said to
                                                                      have caused an increase in the tenancy costs borne by the
1 . leave is granted to D & B Marketing Information                   residents of Square d'Auvergne and ( 2 ) an order that the
     Services to intervene in support of the form of order            Community pay the applicant an advance of ECU 150 000
     sought be the defendant;                                         in respect of irrecoverable costs vexatiously caused on
                                                                      account of the costs to be awarded in the main proceedings
2. the request for confidential treatment in relation to the          — the President of the Court of First Instance has made an
     intervener is granted as regards the whole of Annex 20           order on 16 February 1995 , in which:
     to the application and to the following extent as regards
     Annex I to the application:                                      1 . the application for interim measures is dismissed;
     — the notification (form A/B and the Annex thereto)
         will be disclosed to the intervener with the exception       2 . the costs are reserved.
          of those items which have been obscured in the
          version of that document appended to this order,
     — Annexes 1,2,4 and 5 to the notification will not be
          disclosed to the intervener,
     — the request for confidential treatment is rejected as
          regards the remainder, namely Annexes 3 and 6 to            Action brought on 20 January 1995 by BP Chemicals
          the notification;                                           Limited against the Commission of the European
                                                                                Communities
3 . the registrar shall serve a non-confidential version of the                               (Case T-ll/95 )
     documents in the case on the intervener;
                                                                                ( 95/C 87/30 )
4. a period shall be prescribed within which the intervener
     must set out in writing its pleas in support ofthe form of                       (Language of the case: English)
     order which it seeks;
5 . D 8>cB 's request to derogate from the rules on the use of        An action against the Commission of the European
     languages is rejected as regards the written                     Communities was brought before the Court of First
     procedure;                                                       Instance of the European Communities on 20 January 1995
                                                                      by BP Chemicals Limited, represented by J. E. Flynn,
                                                                      Solicitor of Linklaters & Paines, Brussels, with an address
6 . D 8c B is granted leave to use English during the oral            for service in Luxembourg at the Chambers of Loesch &
     procedure;                                                       Wolter, 11 Rue Goethe.
7. the costs are reserved.
                                                                      The applicant claims that the Court should:
(!) OJ No C 90, 26 . 3 . 1994 .
(2 ) OJ No L 306, 11 . 12 . 1993 , p . 50.                            (a ) annul the decision of the Commission under the EC
                                                                            Treaty's State aid rules concerning three capital
                                                                            injections to Enichem SpA ( 1 ); and
                                                                      ( b ) order the Commission to pay the costs of this
                ORDER OF THE PRESIDENT                                      action.
           OF THE COURT OF FIRST INSTANCE
                      of 16 February 1995                             Pleas in law and main arguments adduced in support:
in Case T-5/95 R: Amicale des Résidents du Square
d'Auvergne v. Commission of the European                              The applicant maintains that the contested decision should
                          Communities
                                                                      be annulled on substantive and procedural grounds and that
                           ( 95/C 87/29                               its reasoning is inadequate. Specifically, it considers that the
                                                                      Commission erred :
                 (Language of the case: French)
                                                                      — in finding the first two injections compatible with the
In Case T-5/95 R: Amicale des Résidents du Square                          common market, thereby committing a manifest error of
d'Auvergne, established at Massy, France, represented by                   assessment going beyond the scope of its discretion


title: Case T-561/17: Action brought on 15 August 2017 — L-Shop-Team v EUIPO (bags2GO)

text:
               16.10.2017

               EN

               Official Journal of the European Union

               C 347/44

         Action brought on 15 August 2017 — L-Shop-Team v EUIPO (bags2GO)
   (Case T-561/17)
   (2017/C 347/58)
   Language in which the application was lodged: German

      Parties

      Applicant: L-Shop-Team GmbH (Dortmund, Germany) (represented by: A. Sautter, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Applicant for the trade mark at issue: Applicant

      Trade mark at issue: EU figurative mark containing the word elements ‘bags2GO’ — Application for registration No 15 356 901

      Contested decision: Decision of the Fifth Board of Appeal of EUIPO of 14 June 2017 in Case R 1650/2016-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and (c) of Regulation No 207/2009.