title: Case C-341/15: Judgment of the Court (Tenth Chamber) of 20 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Wien — Austria) — Hans Maschek v Magistratsdirektion der Stadt Wien — Personalstelle Wiener Stadtwerke (Reference for a preliminary ruling — Social policy — Directive 2003/88/EC — Article 7 — Right to paid annual — Retirement at the request of the party concerned — Worker failing to use up all his entitlement to annual paid leave before the termination of his work relations — National legislation excluding allowance in lieu of paid annual leave not taken — Sick leave — Public servants)

text:
               19.9.2016

               EN

               Official Journal of the European Union

               C 343/7

         Judgment of the Court (Tenth Chamber) of 20 July 2016 (request for a preliminary ruling from the Verwaltungsgericht Wien — Austria) — Hans Maschek v Magistratsdirektion der Stadt Wien — Personalstelle Wiener Stadtwerke
   (Case C-341/15) (1)

   ((Reference for a preliminary ruling - Social policy - Directive 2003/88/EC - Article 7 - Right to paid annual - Retirement at the request of the party concerned - Worker failing to use up all his entitlement to annual paid leave before the termination of his work relations - National legislation excluding allowance in lieu of paid annual leave not taken - Sick leave - Public servants))
   (2016/C 343/10)
   Language of the case: German

      Referring court

   Verwaltungsgericht Wien

      Parties to the main proceedings

      Appellant: Hans Maschek

      Respondent: Magistratsdirektion der Stadt Wien — Personalstelle Wiener Stadtwerke

      Operative part of the judgment

   Article 7(2) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time, must be interpreted:

               —

               as precluding national legislation such as that at issue in the main proceedings, which deprives the worker, whose employment relationship was terminated following his request for retirement, of an allowance in lieu of paid annual leave not taken and who has not been able to use up his rights to paid annual leave before the end of that employment relationship;

               —

               as meaning that a worker is entitled, on retirement, to an allowance in lieu of paid annual leave not taken because he was prevented from working by sickness;

               —

               as meaning that a worker whose employment relationship has ended and who, pursuant to an agreement with his employer, while continuing to receive his salary, was required not to report to his place of work during a specified period preceding his retirement, is not entitled to an allowance in lieu of paid annual leave not taken during this period, unless he was not able to use up that entitlement due to illness;

               —

               as meaning that it is, on the one hand, for the Member States to decide whether to grant workers additional paid leave in addition to the minimum annual paid leave of four weeks provided for in Article 7 of Directive 2003/88. In that case, the Member States may grant to a worker who, because of illness, could not use up all of his additional paid annual leave before the end of his employment relationship, an entitlement to an allowance in lieu of that additional period. It is, on the other hand, for the Member States to determine the conditions for granting that entitlement.

      (1)  OJ C 346, 19.10.2015.


title: Appeal brought on 2 May 1995 by Campo Ebro Industrial SA, Levantina Agricola Industrial SA, and Cerestar Iberica SA, against the judgment delivered on 21 February 1995 by the First Chamber of the Court of First Instance of the European Communities in Case T-472/93 between Campo Ebro Industrial SA, Levantina Agricola Industrial SA, and Cerestar Iberica SA, and the Council of the European Union, supported by the Commission of the European Communities, intervener (Case C-138/95 P)

text:
No C 189/8             lEN                      Official Journal of the European Communities                                         22 . 7 . 95
   ( b ) ruled that the Commission correctly decided in law                              that the Commission concluded that the former
          that the rules were incapable of allowing consumers                            infringement(s ) had been committed deliberately
          a fair share of the benefits resulting from them,                              or, at the very least, through serious negligence,
          basing that ruling on considerations which are                                 whereas it found that the latter infringement(s ) had
          inherently contradictory and incomprehensible and                              been committed intentionally or at least negligently;
          on the assumption, incompatible with Article 5 ( 3 )                           and/or
          of the EC Treaty, that ( i ) for the purposes of
          assessing the competition rules in the light of the                     (c ) held, contrary to the relevant facts and matters
          second condition laid down in Article 85 ( 3 ),                                established by it and the provisions of Article 4 ( 2 )
          macroeconomic benefits are of no relevance, and/or                             of Regulation No 17/62, that the applicants could
          (ii ) that the second condition in Article 85 ( 3 ) can be                     have had no doubt in the circumstances that their
          regarded as satisfied only where the benefits under                            rules fell within the scope of Article 85 ( 1 ) of the
          consideration accrue without distinction to all                                Treaty, and that the relatively benevolent attitude of
          consumers ;                                                                    the Netherlands authorities regarding the rules
                                                                                should have encouraged the applicants to notify the
                                                                                rules to the Commission with a view to obtaining an
   (c ) ruled that the restrictions on competition resulting                             exemption .
          from the rules are not indispensable to the
          attainment of the objectives pursued by those rules,
          thereby substituting its own assessment of the rules             (!) OJ No C 87, 8 . 4 . 1995 , p . 8 .
          in the light of Article 8 5 ( 3 ) of the EC Treaty for that
          of the Commission, contrary to Article 173 of
          the EC Treaty and Article 9 ( 1 ) of Regulation
          No 17/62 .
— Infringement and/or misapplication of Community law,                     Appeal brought on 2 May 1995 by Campo Ebro Industrial
   particularly Article 85 of the EC Treaty, Articles 4                    SA, Levantina Agricola Industrial SA, and Cerestar Iberica
   and/or 15 of Regulation No 17/62 and/or Article 190 of                  SA, against the judgment delivered on 21 February 1995 by
   the EC Treaty, and in any event of the general principles               the First Chamber of the Court of First Instance of the
   of Community law concerning the giving of reasons for                   European Communities in Case T-472/93 between Campo
    (judicial) decisions, legal certainty and legal protection             Ebro Industrial SA, Levantina Agricola Industrial SA, and
   and/or proportionality, in that, in rejecting the                       Cerestar Iberica SA, and the Council of the European
   applicants' plea as to the absence of any element of                    Union, supported by the Commission of the European
   intention or negligence in the infringements found by                                           Communities , intervener
   the Commission to have been committed by the                                                       ( Case C-138/95 P)
   undertakings concerned and as to the disproportionality
   of the fine imposed in that regard, the Court of First                                                ( 95/C 189/15 )
   Instance wrongly considered and decided the matters
   stated and set forth in paragraphs 346 to 388 inclusive of              An appeal against the judgment delivered on 21 February
   its contested judgment, since, in thus considering and                  1995 by the First Chamber of the Court of First Instance of
   ruling on the determination by the Commission of the                    the European Communities in Case T-472/93 between
   gravity of the infringements established by it, within the              Campo Ebro Industrial SA, Levantina Agricola Industrial
   meaning of Article 15 ( 2 ) of Regulation No 17/62, the                 SA, and Cerestar Iberica SA, and the Council of the
   Court of First Instance :
                                                                           European Union, supported by the Commission of the
                                                                           European Communities, intervener, was brought before the
    (a ) failed to verify the extent to which the Commission               Court of Justice of the European Communities on 2 May
          decided      in   each  instance       that   a  deliberate      1995 by Campo Ebro Industrial SA, Levantina Agricola
          infringement, alternatively a (culpably ) negligent              Industrial SA, and Cerestar Iberica SA, represented by Paul
          contravention, had been committed, and thus                      Glazener, of the Rotterdam Bar, with an address for service
          ignored the fact that, as is apparent from                       in Luxembourg at the Chambers of Me Carlos Zeyen, 67
                                                                           Rue Ermesinde .
          Article 15 ( 2 ) of Regulation No 17/62, the
          difference between intentional and negligent acts is
          a decisive factor for the purposes of determining the            The appellants claim that the Court should:
          gravity of the breach and thus fixing the amount of
          the fine(s ) to be imposed on the undertaking(s )
          concerned; and/or                                                  ( i ) annul the judgment of the Court of First Instance, in so
                                                                                far as the Court of First Instance rejected the claim for
                                                                                damages; and
    ( b ) disregarded the fact that the Commission drew a
           distinction in that regard between one or more                   (ii ) order the Community to make good the damage
          infringements of the UPR rules and one or                                  suffered by the applicants as a result of Regulation
           more infringements committed over a period                                 ( EEC ) No 3814/92 of 28 December 1992 (*) and to
          going back at least to 1 October 1980, and                                 assess the damages at ECU 3 444 403 for Campo
 ---pagebreak--- 22 . 7. 95              EN               Official Journal of the European Communities                               No C 189/9
       Ebro, ECU 1 305 169 for Laisa and ECU 2 132 421              necessarily entail formation of stocks, that the applicants
       for Cerestar, or at such other amounts as this Court         were in a different situation than the sugar producers and
       considers appropriate, increased by an interest of 8 %       that the different treatment as regards the aid paid to the
       per year from the date of the application to the Court       sugar producers for sugar held in stock on 31 December
       of First Instance until the date of payment; or              1992 was justified .
(iii ) refer the case back to the Court of First Instance;
                                                                    The Court of First Instance ignored the judgment of this
       and                                                          Court in Royal Scholten-Honig as well as the common
                                                                    organization of the market in the sugar sector and infringed
                                                                    the principle of non-discrimination and Article 190 of the
( iv ) order the Council to pay the applicants' costs in this       EC Treaty in finding that the applicants are in a different
       proceedings and the proceedings before the Court of          situation than the sugar producers and could be treated
       First Instance .                                             differently because they are not obliged to pay a minimum
                                                                    price fixed by the Community for their raw materials .
Pleas in law and main arguments adduced in support:                 Finally, the Court of First Instance infringed various
                                                                    provisions and principles of Community law in dismissing
                                                                    the applicants' plea alleging a breach of the principle of
The Court of First Instance infringed Article 70 ( 3 ) ( b ) of the non-discrimination .
Act of Accession of Spain and Portugal, the principle of
legitimate expectations and Article 190 of the EC Treaty in
finding that the applicants could not derive any legitimate         f 1 ) OJ No L 387, 31 . 12 . 1992 , p . 7 .
                                                                    ( 2 ) OJ No L 162 , 26 . 6 . 1991 , p . 18 .
expectations from the Act of Accession.
The Court of First Instance wrongly interpreted Regulation
( EEC ) No 1716/91 (2 ) and infringed the principle of the
protection of legitimate expectations and Article 190 of the
EC Treaty in finding that Regulation ( EEC ) No 1716/91
could not have given rise to a legitimate expectation on the        Appeal brought on 8 May 1995 by the Commission of the
applicants ' part.                                                  European Communities against the judgment delivered on
                                                                    7 March 1995 by the First Chamber of the Court of First
                                                                    Instance of the European Communities in Joined Cases
The Court of First Instance ignored Article 28 of the Single        T-432/93 , T-433/93 and T-434/93 between Socurte —
European Act and infringed the principle of the protection          Sociedade de Curtumes a Sul do Tejo, Lda., Quavi —
of legitimate expectations and Article 190 of the EC Treaty         Revestimentos de Cortiça, Lda. and Stec — Sociedade
in finding that prudent and well-informed traders ought to          Transformadora de Carnes, Lda. and the Commission of
have realized that achievement of the single market might
                                                                                the European Communities
lead to an early alignment of the intervention price of
sugar .                                                                                ( Case C-143/95 P)
                                                                                ( 95/C 189/16 )
The Court of First Instance wrongly interpreted Regulation
( EEC ) No 1716/91 and infringed the principle of legitimate        An appeal against the judgment delivered on 7 March 1995
expectations and Article 190 of the EC Treaty in finding that       by the First Chamber of the Court of First Instance of the
the applicants could not have had a legitimate expectation          European Communities in Joined Cases T-432/93 ,
worthy of protection in the conditions under which price            T-433/93 and T-434/93 between Socurte — Sociedade de
alignment was carried out with effect from the 1993/94              Curtumes a Sul do Tejo, Lda ., Quavi — Revestimentos de
marketing year.                                                     Cortiça, Lda . and Stec — Sociedade Transformadora de
                                                                    Carnes, Lda . and the Commission of the European
                                                                    Communities was brought before the Court of Justice of the
The Court of First Instance infringed various provisions and        European Communities on 8 May 1995 by the Commission
principles of Community law in dismissing the applicants '          of the European Communities, represented by Francisco de
plea alleging a breach of the principle of the protection of        Sousa Fialho and Nicholas Khan, of its Legal Service, with
legitimate expectations.                                            an address for service in Luxembourg at the office of
                                                                    Georgios Kremlis, of its Legal Service, Wagner Centre,
In paragraph 81 of the judgment, the Court of First Instance        Kirchberg.
misconstrued the applicants' arguments and infringed the
principle of non-discrimination and Article 190 of the EC           The appellant claims that the Court should:
Treaty.
                                                                     1 , annul the judgment of the Court of First Instance (First
The Court of First Instance erred in law and infringed the                Chamber ) of 7 March 1995 in Joined Cases T-432/93 ,
principle of non-discrimination and Article 190 of the EC                 T-433/93 and T-434/93 ;
Treaty in inferring, from the fact that the production of
isoglucose, unlike the production of sugar, does not                2 , order the applicants at first instance to pay the costs.


title: Case C-9/04: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by judgment of that Court of 23 December 2003 in the case of in the criminal case against Geharo B.V.

text:
6.3.2004               EN                       Official Journal of the European Union                                               C 59/17
Article 15                                                              Does a foreign taxpayer resident in a Member State, such as
                                                                        Germany, who is not entitled to the benefits afforded by the
Article 15 of the Directive, which requires the introduction of         Netherlands-Germany Tax Convention because he does not
a general prohibition on indiscriminate capture and killing has         satisfy the condition, laid down in that regard, that he receive
been implemented by regulation 41 of the C(NH)R 1994,                   at least 90% of his income in the Netherlands, have the right,
regulation 36(2) of the C(NH)R(NI)1995 and section 17V(2)               by virtue of EC law, to receive from the Netherlands the tax-
of the NPO 1991. These provisions make it an offence to use             free allowance and tax credit for income tax in the calculation
any of the means of capture and killing listed in Annex VI(a)           of his income from savings and investments if a foreign
and Annex VI(b) of the Directive. The Commission considers              taxpayer who in resident in another Member State, in this case
that this transposition method fails to incorporate a general           Belgium, has the right to such benefits in the calculation of his
prohibition as is required by Article 15.                               income from savings and investments by virtue of the
                                                                        Netherlands-Belgium Tax Convention (and the decision of the
                                                                        State Secretary for Finance of 21 February 2002, No CPP
                                                                        2001/2745, BNB 2002/164) despite the fact that he does not
Article 16                                                              receive at least 90 % of his income in the Netherlands?
Article 16(1) of the Directive permits derogations from the
prohibitions under Articles 12, 13, 14 and 15(a) and (b) of the
Directive in certain circumstances. Such derogations are subject
to two pre-conditions in the opening paragraph of
Article 16(1), namely that there is no satisfactory alternative
and that the derogation is not detrimental to the maintenance
of the populations of the species concerned at a favourable
conservation status in their natural range. The Commission
                                                                        Reference for a preliminary ruling by the Hoge Raad der
considers that the national measures providing for these
                                                                        Nederlanden by judgment of that Court of 23 December
derogations do not adequately transpose these pre-conditions.
                                                                               2003 in the case of in the criminal case against
                                                                                Geharo B.V.
Application of the Directive beyond territorial waters
                                                                                (Case C-9/04)
The Commission considers that the Directive applies beyond
the territorial waters. Specifically, the United Kingdom has
failed to transpose the obligations to designate special areas of                                   (2004/C 59/28)
conservation under Article 4 of the Directive and to provide
species protection under Article 12 of the Directive inasmuch
as the transposing legislation does not apply beyond the
United Kingdom’s territorial waters.                                    Reference has been made to the Court of Justice of the
                                                                        European Communities by judgment of the Hoge Raad
(1) of 21 May 1992 (OJ 1992 L 206, p. 7).                               der Nederlanden (Supreme Court of the Netherlands) of
                                                                        23 December 2003, received at the Court Registry on 12 Janu-
                                                                        ary 2004, for a preliminary ruling in the case of in the criminal
                                                                        case against Geharo B.V. on the following question:
                                                                        Does the second sentence of Article 1 of Directive 91/338/
Reference for a preliminary ruling by the Gerechtshof                   EEC (1) (cadmium directive) preclude the application of the
Herzogenbusch by judgment of that Court of 8 January                    rules in that directive regarding the cadmium content of
2004 in the case of E. Bujura against Inspecteur van de                 (finished) products and components, as set out in the Annex
  Belastingdienst Limburg / Kantoor Buitenland, Heerlen                 thereto, to toys within the meaning of Directive 88/378/
                                                                        EEC (2) (toy safety directive)?
                          (Case C-8/04)
                                                                        (1) Council Directive 91/338/EEC of 18 June 1991 amending for the
                         (2004/C 59/27)                                     10th time Directive 76/769/EEC on the approximation of the
                                                                            laws, regulations and administrative provisions of the Member
                                                                            States relating to restrictions on the marketing and use of certain
                                                                            dangerous substances and preparations (OJ L 186 of 12.07.1991,
Reference has been made to the Court of Justice of the                      p. 59 — Corrigendum in OJ L 253, 10.9.1991, p. 26).
European Communities by judgment of the Gerechtshof                     (2) Council Directive 88/378/EEC of 3 May 1988 on the approxi-
Herzogenbusch (s-Hertogenbosch Regional Court of Appeal)                    mation of the laws of the Member States concerning the safety of
of 8 January 2004, received at the Court Registry on 12 January             toys (OJ L 187 of 16.07.1988, p. 1).
2004, for a preliminary ruling in the case of E. Bujura
against Inspecteur van de Belastingdienst Limburg / Kantoor
Buitenland, Heerlen on the following question:


title: Case T-205/15 P: Order of the General Court of 27 November 2013 — Marcuccio v Commission (Appeal — Civil service — Action at first instance dismissed as manifestly inadmissible — Application lodged by fax within the time-limit for brining proceedings and signed by a seal reproducing the lawyer’s signature — Original application lodged out of time — Action out of time — Appeal manifestly unfounded)

text:
               15.2.2014

               EN

               Official Journal of the European Union

               C 45/33

         Order of the General Court of 27 November 2013 — Marcuccio v Commission
   (Case T-205/15 P) (1)

   (Appeal - Civil service - Action at first instance dismissed as manifestly inadmissible - Application lodged by fax within the time-limit for brining proceedings and signed by a seal reproducing the lawyer’s signature - Original application lodged out of time - Action out of time - Appeal manifestly unfounded)
   2014/C 45/57
   Language of the case: Italian

      Parties

      Appellant: Luigi Marcuccio (Tricase, Italy) (represented by: G. Cipressa, lawyer)

      Other party to the proceedings: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, Agents)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (Second Chamber) of 28 January 2013 in Case F-100/12 Marcuccio v Commission, not published in the ECR, seeking to have that order set aside.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio is ordered to bear his own costs and to pay the costs incurred by the European Commission in the appeal proceedings.

      (1)  OJ C 156, 1.6.2013.


title: Case T-277/07: Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS)

text:
               6.10.2007

               EN

               Official Journal of the European Union

               C 235/14

         Action brought on 20 July 2007 — Secure Computing v OHIM — Investronica (SECUREOS)
   (Case T-277/07)
   (2007/C 235/25)
   Language in which the application was lodged: German
   Parties

      Applicant: Secure Computing Corporation (Minnesota, United States) (represented by: H. P. Kunz-Hallstein and R. Kunz-Hallstein, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Investronica, SA
   Form of order sought

               —

               annul the decision of the First Board of Appeal of OHIM of 25 April 2007 in Case R 1063/2006-1;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant.

      Community trade mark concerned: The word mark ‘SECUREOS’ for goods in Class 9 (Application No 2 659 944).

      Proprietor of the mark or sign cited in the opposition proceedings: Investronica, S.A.

      Mark or sign cited in opposition: The word mark ‘SECUREURO’ (Community trade mark No 2 126 290) for goods and services in Classes 7, 9, 16, 35, 36, 37 and 42 and the figurative mark ‘secureuro’ (Community trade mark No 2 418 135) for goods and services in Classes 7, 9, 16, 35 and 36.

      Decision of the Opposition Division: Grant of the opposition and rejection of the application.

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

      Pleas in law: Infringement of Article 8(1), Article 73 and Article 74(1), in fine, of Regulation (EC) No 40/94 (1).

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


title: Case T-58/15: Order of the General Court of 16 February 2016 — Ludwig Bertram v OHIM — Seni Vita (Sanivita)

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/45

         Order of the General Court of 16 February 2016 — Ludwig Bertram v OHIM — Seni Vita (Sanivita)
   (Case T-58/15) (1)

   (2016/C 136/63)
   Language of the case: German
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 118, 13.4.2015.


title: Case T-447/05: Action brought on  22 December 2005  — Plantations de Mbanga v Commission

text:
               25.3.2006

               EN

               Official Journal of the European Union

               C 74/24

         Action brought on 22 December 2005 — Plantations de Mbanga v Commission
   (Case T-447/05)
   (2006/C 74/47)
   Language of the case: French
   Parties

      Applicant: Société des plantations de Mbanga (SPM) SA, established in Douala, Cameroon, represented by: P. Soler Couteaux and S. Cahn, lawyers

      Defendant: Commission of the European Communities
   Form of order sought
   The applicant claims that the Court should:

               —

               annul Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas;

               —

               order the Commission and the Council to pay all the costs and expenses.

         Pleas in law and main arguments
   In the context of the amendments to the specific regime for trade quotas with non-Member States forming part of the measures of market organisation in the banana sector, Council Regulation No 1964/2005 of 29 November 2005 (1), among other things, conferred on the Commission the power to enact the measures necessary to implement that regulation, as well as transitional measures relating to the management of the tariff quota for bananas originating in ACP countries. In that context, the Commission maintained in its Regulation No 2015/2005 of 9 December 2005 (2), for the months of January and February 2006, the previous system of granting import licences on the basis of historic references (3), as it was initially laid down by Regulation No 896/2001. The annulment of Regulation No 2015/2005 is sought in this action.
   In support of its action, the applicant claims that by establishing, in its Articles 3 and 4, a system of allocation of import licences based on historic references and on the introduction of non-traditional operators, Regulation No 2015/2005 infringes:

               —

               the contractual framework of the banana market;

               —

               the philosophy and principles enshrined in the Community provisions in respect of common agricultural policy and common organisation of the banana markets and the provisions themselves of the Community legislation in question;

               —

               the principles enshrined in Articles 81 EC and 82 EC, in that it enables historic operators to abuse collectively the dominant position which, according to the applicant, is conferred on them by the regulatory provisions and in that it also encourages other anti-competitive practices on the Community banana market;

               —

               the principles enshrined in Article 87 EC, in that its effect is to confer a substantial financial advantage selectively on certain historically important traditional importers, who are able to profit from the resale of licences wrongly obtained gratuitously;

               —

               the principle of proportionality in that it does not permit the creation and development of the businesses of credible and viable non-traditional importers, who can survive only by relying on a traditional importer; in addition, the applicant claims that the regulation, annulment of which is sought, no longer enables ACP banana producers to take advantage in an equitable manner of the preference accorded to ACP bananas, since the system benefits excessively certain historically important traditional importers;

               —

               the principle of non-discrimination in that it applies apparently equitable treatment to all traditional ACP importers, whilst in reality, it favours unduly certain historically important traditional importers.

         Finally, the applicant also relies, in support of its claims, on breach of the principles of legitimate expectations and of the freedom to carry on business.

      (1)  Regulation (EC) No 1964/2005 of 29 November 2005 on the tariff rates for bananas (OJ L 316 of 2.12.05).

      (2)  Commission Regulation (EC) No 2015/2005 of 9 December 2005 on imports during January and February 2006 of bananas originating in ACP countries under the tariff quota opened by Council Regulation (EC) No 1964/2005 on the tariff rates for bananas (OJ L 324, p. 5).

      (3)  Which is challenged by the applicant in Case T-128/05 pending before the Court of First Instance.


title: Order of the Court of Justice (First Chamber) of 30 January 2003 in Case C-176/02 P: Laboratoire Monique Rémy SAS v Commission of the European Communities (Appeal — Action seeking annulment — Inadmissibility on grounds of lateness — Appeal manifestly inadmissible)

text:
C 101/14                EN                           Official Journal of the European Union                                          26.4.2003
             ORDER OF THE COURT OF JUSTICE                                   received at the Court Registry on 8 January 2003, for a
                                                                             preliminary ruling in the dispute of administrative law between
                          (First Chamber)                                    Eiterköpfe and Land Rheinland-Pfalz on the following ques-
                                                                             tions:
                        of 30 January 2003
in Case C-176/02 P: Laboratoire Monique Rémy SAS v                           1.    On a proper construction of Article 5(1) of Council
        Commission of the European Communities ( 1)                                Directive 1999/31/EC (1) laying down Community
                                                                                requirements for a strategy for the reduction of biodegrad-
                                                                                able waste going to landfills, can that provision be
(Appeal — Action seeking annulment — Inadmissibility on                            transposed into national law in the form of measures
    grounds of lateness — Appeal manifestly inadmissible)                          imposing more stringent requirements, in accordance
                                                                                with Article 176 EC, which differ from those set out in
                          (2003/C 101/24)                                          Article 5(2) of the directive (reduction by a specific
                                                                                calendar year of biodegradable municipal waste going to
                    (Language of the case: French)                                 landfills to a specific percentage of the total amount
                                                                                by weight of biodegradable municipal waste) in that
                                                                                municipal waste and waste that can be deposited in the
(Provisional translation; the definitive translation will be published             same way as municipal waste may be landfilled only if
                   in the European Court Reports)                                  the appropriate ‘organic component of dry residue of the
                                                                                original substance’ classification criterion (expressed as
                                                                                either combustion loss or TOC) is satisfied?
In Case C-176/02 P: Laboratoire Monique Rémy SAS, having
its registered office in Grasse (France), represented by J.-
F. Pupel, avocat — Appeal against the order of the Court of
                                                                             2.    a)   If so, are the Community requirements laid down in
First Instance of the European Communities (First Chamber)
                                                                                Article 5(2) of the directive to be construed as
of 21 March 2002 in Case T-218/01 Laboratoire Monique
                                                                                meaning that the targets for reduction set out in that
Rémy v Commission [2002] ECR II-2139, seeking to have that
                                                                                provision, namely:
order set aside, the other party to the proceedings being:
Commission of the European Communities (Agent: A. Bordes)
— The Court (First Chamber), composed of: M. Wathelet
(Rapporteur), President of the Chamber, P. Jann and A. Rosas,                           —     75 % of the total amount by weight by 16 July
Judges; L.A. Geelhoed, Advocate General; R. Grass, Registrar,                                 2006,
has made an order on 30 January 2003, the operative part of
which is as follows:
1.    The appeal is dismissed.                                                          —     50 % of the total amount by weight by 16 July
                                                                                2009, and
2.    The company Laboratoire Monique Rémy SAS shall bear the
      costs.
                                                                                —     35 % of the total amount by weight by 16 July
( 1) OJ C 169 of 13.7.2002.                                                                   2016,
                                                                                are met, having regard to the Community law
                                                                                principle of proportionality, by a national provision
                                                                                under which: the organic content of dry residue of
                                                                                the original substance in the case of municipal waste
Reference for a preliminary ruling by the Verwaltungsger-                               and waste that can be deposited in the same way as
icht Koblenz by order of that Court of 4 December 2002                                  municipal waste must, by 1 June 2005, be no more
in the dispute of administrative law between Eiterköpfe                                 than either 5 % by mass, expressed as combustion
                    and Land Rheinland-Pfalz                                            loss, or 3 % by mass, expressed as TOC; from
                                                                                1 March 2001, waste subject to mechanical and
                            (Case C-6/03)                                               biological treatment may be landfilled at existing
                                                                                sites until 15 July 2009 at the latest, or even beyond
                          (2003/C 101/25)                                               that date in certain cases, only if the organic content
                                                                                of dry residue of the original substance is no more
                                                                                than 18 % by mass, expressed as TOC, and the
                                                                                biodegradability of the dry residue of the original
Reference has been made to the Court of Justice of the                                  substance is no more than 5 mg/g, expressed as
European Communities by order of the Verwaltungsgericht                                 aerobic activity (AT 4), or 20 l/kg, expressed as the
Koblenz (Administrative Court, Koblenz) of 4 December 2002,                             gas formation rate in the fermentation test (GB 21)?


title: Case T-402/11: Action brought on 29 July 2011 — Preparados Alimenticios del Sur v Commission

text:
               24.9.2011

               EN

               Official Journal of the European Union

               C 282/39

         Action brought on 29 July 2011 — Preparados Alimenticios del Sur v Commission
   (Case T-402/11)
   2011/C 282/74
   Language of the case: Spanish

      Parties

      Applicant: Preparados Alimenticios del Sur, SL (Murcia, Spain) (represented by: I. Acero Campos, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision to return to the Spanish customs authority the dossier on the application for remission;

               —

               order the Commission to adjudicate upon the application for remission submitted by Prealisur S.L. which directly affects the application submitted by Zukan S.L.;

               —

               so that it may adjudicate upon that application, order the Commission to take the necessary measures and steps, even it means taking measures against the Spanish customs authority, in order to obtain all the necessary information to decide the case, including the documents which the Commission states that it has requested from Spanish customs but which the latter has not yet supplied;

               —

               order the European Commission to pay the costs.

      Pleas in law and main arguments

   This action is brought against the European Commission’s decision of 29 June 2011, returning to the Spanish customs authority the dossier on the applicant’s application for remission so that that authority might adjudicate upon the application (Dossier No. 003-004-005-006-2009 RRPP-J Y REC 04/10), on the basis that the Commission did not have sufficient information to decide the case itself. The Spanish customs authority had previously transmitted the dossier to the Commission on the basis of Article 220(2)(b) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1).
   In support of its action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging infringement of certain articles of Commission Regulation (EEC) No 2454/93 of 2 July 1993 laying down provisions for the implementation of Council Regulation (EEC) No 2913/92 establishing the Community Customs Code (OJ 1993 L 253, p. 1).

                           —

                           The applicant alleges, specifically, infringement of Articles 872 and 873, since the intention to take an unfavourable decision was not communicated to it — which would enable it to submit its observations in that regard — and the applicant was not informed of the European Commission’s request for information to the Spanish customs authority and the consequent extension of the period of time to adjudicate upon the application for remission.

               2.

               Second plea in law, alleging infringement of Article 220(2)(b) of the Customs Code, in so far as that article does not — contrary to the Commission’s understanding — provide that the Customs authority’s error must be an active one, the dossier being returned due to a lack of information from the party making the error, that is, the Spanish customs authority itself.

               3.

               Third plea in law, alleging infringement of the Commission’s Rules of Procedure and, in particular, of the Annex containing the Code of Good Administrative Behaviour for Staff of the European Commission in their Relations with the Public.

                           —

                           The applicant submits in that regard that the contested decision infringed the general principles of good administration, the guidelines for good administrative behaviour and the right to information of interested parties. The applicant submits that the Commission has also failed to supply any of the documents requested, and has failed to provide any response to the decision which is the subject of this action.

               4.

               Fourth plea in law, alleging infringement of the Charter of Fundamental Rights of the European Union.

                           —

                           The applicant alleges, specifically, infringement of Articles 41, 42, 47, 48 and 51 of that charter.


title: Case T-579/15: Action brought on 5 October 2015 — For Tune v OHIM — Gastwerk Hotel Hamburg (fortune)

text:
               30.11.2015

               EN

               Official Journal of the European Union

               C 398/70

         Action brought on 5 October 2015 — For Tune v OHIM — Gastwerk Hotel Hamburg (fortune)
   (Case T-579/15)
   (2015/C 398/84)
   Language in which the application was lodged: English

      Parties

      Applicant: For Tune sp. z o.o. (Warszawa, Poland) (represented by: K. Popławska, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Gastwerk Hotel Hamburg GmbH & Co. KG (Hamburg, Germany)

      Details of the proceedings before OHIM

      Applicant of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word element ‘fortune’ — Application for registration No 1 1 5 25  491

      Procedure before OHIM: Opposition proceedings

      Contested decision: Decision of the Fifth Board of Appeal of OHIM of 7 August 2015 in Case R 2808/2014-5

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order OHIM and the other party to the proceedings before the Board to pay the costs.

      Plea(s) in law

               —

               Infringement of Article 8(1)(b) of Regulation No 207/2009.


title: Judgment of the Court (Sixth Chamber) of 29 April 2004 in Joined Cases C-473/01 P and C-474/01 P: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Appeal — Community trade mark — Article 7(1)b) of Regulation (EC) No 40/94 — Three-dimensional tablets for washing machine or dishwashers — Absolute ground for refusal to register — Distinctive character)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/16

      JUDGMENT OF THE COURT

   (Sixth Chamber)
   of 29 April 2004
   in Joined Cases C-473/01 P and C-474/01 P: Procter & Gamble Company v Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (1)

   (Appeal - Community trade mark - Article 7(1)b) of Regulation (EC) No 40/94 - Three-dimensional tablets for washing machine or dishwashers - Absolute ground for refusal to register - Distinctive character)
   (2004/C 118/28)
   Language of the case: English
   In Joined Cases C-473/01 P and C-474/01 P: two appeals by Procter & Gamble Company, established in Cincinnati (United States) (Lawyers: C. van Nispen and G. Kuipers ) against the judgments of the Court of First Instance of the European Communities (Second Chamber) of 19 September 2001 in Case T-128/00 Procter & Gamble v OHIM (square tablet with inlay) [2001] ECR II-2785 and Case T-129/00 Procter & Gamble v OHIM (rectangular tablet with inlay) [2001] ECR II-2793, seeking to have those judgments set aside in part, the other party to the proceedings being: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (Agents: D. Schennen and C. Røhl Søberg) - the Court (Sixth Chamber), composed of: V. Skouris, acting as the President of the Sixth Chamber, J.N. Cunha Rodrigues, J.-P. Puissochet, R. Schintgen and F. Macken (Rapporteur), Judges; D. Ruiz-Jarabo Colomer, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004 in which it:

               1.

               Dismisses the appeals;

               2.

               Orders Procter & Gamble Company to pay the costs.

      (1)  OJ C 68 of 16.3.2002

      OJ 84 of 6.4.2002


               30.4.2005

               EN

               Official Journal of the European Union

               C 106/21

         Removal from the register of Case C-38/04 (1)

   (2005/C 106/41)

      (Language of the case: Dutch)

   By order of 4 February 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-38/04: Commission of the European Communities v Kingdom of the Netherlands.

      (1)  OJ C 71 of 20.03.2004.


title: Case C-18/02: Reference for a preliminary ruling by the Arbejdsret by order of 25 January 2002 in the case of Danmarks Rederiforening acting on behalf of DFDS Torline A/S against LO Landsorganisation i Sverige, acting on behalf of SEKO Sjöfolk Facket för Service och Kommunikation

text:
C 109/22                EN                    Official Journal of the European Communities                                       4.5.2002
Reference for a preliminary ruling by the Arbejdsret by                  seamen on board that vessel can be regarded by the vessel’s
order of 25 January 2002 in the case of Danmarks                         owners as having occurred in the flag State, with the result
Rederiforening acting on behalf of DFDS Torline A/S                      that the vessel’s owners can, pursuant to Article 5(3), bring an
against LO Landsorganisation i Sverige, acting on behalf                 action for damages against the trade union in the flag State?
 of SEKO Sjöfolk Facket för Service och Kommunikation
                           (Case C-18/02)
                                                                         (1) 27 September 1968 on jurisdiction and the enforcement of
                                                                             judgments in civil and commercial matters (OJ L 204, 1975,
                          (2002/C 109/35)                                    p. 28) modified by the Convention of 26 May 1989 on the
                                                                             accession of the Kingdom of Spain and the Portuguese Republic
                                                                             with the adjustments made to them by the Convention on the
                                                                             accession of the Kingdom of Denmark, of Ireland and of the
Reference has been made to the Court of Justice of the                       United Kingdom of Great Britain and Northern Ireland and the
European Communities by order of the Arbejdsret (Labour                      adjustments made to them by the Convention on the accession of
Court) of 25 January 2002, received at the Court Registry on                 the Hellenic Republic (OJ L 285, 1989, p. 1).
29 January 2002, for a preliminary ruling in the case of
Danmarks Rederiforening (Danish Association of Shipping
Companies), acting on behalf of DFDS Torline A/S against
LO Landsorganisation i Sverige (Swedish Congress of Trade
Unions), acting on behalf of SEKO Sjöfolk Facket för Service
och Kommunikation (union representing maritime workers
in service and communications sectors) on the following
questions:
Question 1                                                               Reference for a preliminary ruling by the Oberster
                                                                         Gerichtshof by order of that Court of 20 December 2001
                                                                         in the case of Dr Viktor Hlozek against Roche Diagnostics
a)    Must Article 5(3) of the Convention (1) be construed                                       Gesellschaft mbH
      as covering cases concerning the legality of collective
      industrial action for the purpose of securing an agreement
      in a case where any harm which may result from the                                           (Case C-19/02)
      illegality of such collective action gives rise to liability to
      pay compensation under the rules on tort, delict or quasi-
      delict, such that a case concerning the legality of notified
      collective industrial action can be brought before the                                      (2002/C 109/36)
      courts of the place where proceedings may be instituted
      for compensation in respect of any harm resulting from
      that industrial action?
b)    Is it necessary, as the case may be, that any harm incurred        Reference has been made to the Court of Justice of the
      must be a certain or probable consequence of the                   European Communities by order of the Oberster Gerichtshof
      industrial action concerned in itself, or is it sufficient that    (Supreme Court) of 20 December 2001, received at the Court
      that industrial action is a necessary condition governing,         Registry on 29 January 2002, for a preliminary ruling in the
      and may constitute the basis for, sympathy actions which           case of Dr Viktor Hlozek against Roche Diagnostics Gesell-
      will result in harm?                                               schaft mbH on the following questions:
c)    Does it make any difference that implementation of
      notified collective industrial action was, after the proceed-
      ings had been brought, suspended by the notifying party            1.a)     Are Article 141 EC and Article 1 of Council Directive
      until the court’s ruling on the issue of its legality?             75/117/EEC of 10 February 1975 on the approximation of
                                                                         the laws of the Member States relating to the application of
                                                                         the principle of equal pay for men and women (OJ 1975 L 45,
                                                                         p. 19) to be interpreted
Question 2
                                                                         where an employer which dismisses a large group of employees
Must Article 5(3) of the Convention be construed as meaning              as a result of a merger with another company is required, on
that damage resulting from collective industrial action                  account of its social obligation towards the entire workforce,
implemented by a trade union in a country to which a vessel              to agree with the works council a social plan, which is binding
registered in another country (the flag State) sails for the             in relation to the employees, in order to alleviate the effects of
purpose of securing an agreement covering the work of                    dismissal, in particular the risk of age-related unemployment,


title: Case T-814/14: Action brought on 17 December 2014  — Banco Espírito Santo v Commission

text:
               13.4.2015

               EN

               Official Journal of the European Union

               C 118/29

         Action brought on 17 December 2014 — Banco Espírito Santo v Commission
   (Case T-814/14)
   (2015/C 118/38)
   Language of the case: Portuguese

      Parties

      Applicant: Banco Espírito Santo, S.A. (represented by: M. Gorjão-Henriques and L. Bordalo e Sá, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               (i)

               Annul paragraphs 9 and 18 of Annex II to European Commission Decision C(2014) 5682 final, of 3 August 2014, State aid No SA.39250 (2014/N) — Portugal, Resolution of Banco Espírito Santo, S.A., in so far as they impose, or may be interpreted as imposing, on the applicant (Banco Espírito Santo, S.A. or ‘BES’) the responsibility for ensuring the remuneration or payment of any other costs of the Monitoring Trustee;

               (ii)

               Order the European Commission to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging infringement of the legal rules relating to the application of the Treaty — imposing on BES the costs relating to monitoring compliance with the commitments made by the Portuguese Republic:

                           —

                           Imposing on BES obligations relating to an act by a third party regarding which BES did not give its consent and from which it does not benefit, and which was not chosen in accordance with criteria that ensure compliance with the principle of the most cost-effective solution, to the potential detriment of BES creditors and shareholders;

                           —

                           Under the contested decision, the Monitoring Trustee is appointed by the Resolution Fund. However, while it is the responsibility of the Portuguese Republic only to appoint a single Monitoring Trustee, is not acceptable that the burden of remunerating the Monitoring Trustee should be the entire responsibility of BES. That solution breaches the principles underlying public aid: (i) it strengthens the advantage enjoyed by the Bridge Bank, relieving it of resolution charges that would otherwise be imposed on it by law; (ii) it distorts competition in favour of the Bridge Bank, relieving it of charges that were not quantified in the authorisation of State aid;

                           —

                           In the EU legislation concerning State aid there is no basis for imposing the responsibility for remunerating the Monitoring Trustee on BES, which, it is pointed out, is not an addressee of the Decision nor a beneficiary of the aid;

                           —

                           Regulation (EU) No 806/2014, on the Single Resolution Mechanism, applicable as of 2016, does not add anything in that regard, notwithstanding that it provides for the role of Trustee in Article 19, nor is anything added by Regulation No 1093/2010 or Directive 2014/59/EU, the transposition period of which has not yet expired;

                           —

                           Within the context of EU law, and within the scope of the action of DG COMP (Directorate-General for Competition of the European Commission), the service responsible for drawing up the contested decision, there are clear interpretative provisions concerning the Monitoring Trustee and its remuneration, which may serve to remedy the legislative omissions concerning the situation at issue, particularly with regard to the quantitative remuneration structure of the Monitoring Trustee, which must be based on agreement between the parties, subject to approval by the European Commission and the necessary independence and means to be granted;

                           —

                           The way in which the Monitoring Trustee should, in practice, be remunerated cannot be imposed on the applicant by the European Commission, so that the binding imposition of such a financial charge by the European Commission (that is, without prior acceptance of its amount by BES) has no legal basis, either in Regulation (EU) No 806/2014 or in any other legislative text;

                           —

                           The European Commission itself, in the contested decision, merely stated that the Monitoring Trustee is to be remunerated by the Bad Bank ‘in a way that must not impede the independent and effective fulfilment of its mandate’. There is, therefore, no specific definition of the structure of the remuneration, in particular how this will be implemented in practice, or of its limits.

               2.

               Second plea in law, alleging breach of the principles of legitimate expectations, legal certainty and that administrative authorities are bound by their own rules:

                           —

                           The Commission breached the principles of legitimate expectations, legal certainty and that administrative authorities are bound by their own rules, in so far as they impose, or may be interpreted as imposing, on BES the charges relating to the Monitoring Trustee;

                           —

                           This is particularly the case given that BES, a third party to the decision, was totally excluded from the procedure to select the Monitoring Trustee, and therefore could not, without prejudice to the means and independence required by the Decision, ensure compliance with its responsibilities (and the fiduciary responsibilities of its directors), seeking to ensure that that monitoring of commitments represents a less significant financial burden for BES;

               3.

               Third plea in law, alleging breach of the principle of proportionality:

                           —

                           The Commission infringed the principle of proportionality, by imposing on BES the unilateral and entire burden of charges that, considering the current financial situation of BES as an institution that is the subject of a resolution action, not only appear extremely onerous and substantial, but also exceed the limits of proportionality in the strict sense;

                           —

                           That is all the more so since, according to BES, the responsibility for those expenses, as it has not been assumed by the Portuguese State by way of commitments, falls to the European Commission itself, under its responsibilities regarding the resolution of banking institutions and the commitments made by the Member States in the context of those measures.


title: Case T-91/15: Action brought on 19 February 2015 — AEDEC v Commission

text:
               20.4.2015

               EN

               Official Journal of the European Union

               C 127/34

         Action brought on 19 February 2015 — AEDEC v Commission
   (Case T-91/15)
   (2015/C 127/47)
   Language of the case: Spanish

      Parties

      Applicant: Asociación Española para el Desarrollo de la Epidemiología Clínica AEDEC (Madrid, Spain) (represented by: R. López López, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the European Commission’s Directorate-General for Research and Innovation, Directorate E (Health), received on 4 September 2014, refusing to grant the financial contribution sought by the applicants in the call for tenders procedure H2020-HCO-2014, and revaluate the merits of the project.

      Pleas in law and main arguments

   In support of its action, the applicant alleges infringement of the general principles of sound administration, transparency and equal treatment; on the basis of the following considerations:
   The consortium LATIN PLAN, coordinated by AEDEC deserves to obtain the financial contribution offered in the call for tenders H2020-HCO-2014, with the result that the decision refusing to grant that financial contribution and the decision confirming that refusal are manifestly unfair, given that:

               (a)

               The communications of the European Commission during the evaluation process of the project incorrectly identified the project coordinator, and were addressed to a person who was not the legal representative, contact person or coordinator of the project in question. That is particularly significant in the present case, since the person concerned had nothing to do with AEDEC and formed part of LATIN PLAN as a member of the Finnish team.
               It is clear that the European Commission, believing that the person in question coordinated the LATIN PLAN project as part of AEDEC and at the same time formed part of the Finnish team, considered that he did not merit the financial contribution, on the basis of the ‘principle of non-cumulative award’, which applies to the grant of funding in EU law, and according to which no action may give rise to more than one grant from the EU budget to the same beneficiary. Each partner of the LATIN PLAN team requested a budget. If the financial contribution had finally been awarded to the team, according to the Commission’s erroneous perception, the person in question would have received funding as a member of the AEDEC and as a member of the Finnish team.

               (b)

               The report evaluating the projects states that the asymmetry between the budgets sought by each team member of the consortium LATIN PLAN was not explained and adequately justified, and for that reason lower scores were awarded. It is not denied that there is asymmetry between the budgets requested by the various teams/partners but it is not true that the asymmetry was not explained. Specifically, in the section setting out the justification for the budget it is explained perfectly and in detail why AEDEC is the partner seeking the most funds.

               (c)

               In addition, it must be pointed out that the project is of a high standard from a scientific perspective. The team obtained 11 points out of the maximum possible of 15, and surpassed the quality threshold of 10 points established in the call for tenders. The project in question obtained a score higher than others to which funding was granted, with the result that the contested decision is unfair.


title: Case F-135/14: Judgment of the Civil Service Tribunal (Second Chamber) of 16 December 2015 — DE v EMA (Civil service — EMA staff — Placement on ‘non-active status’ — Act adversely affecting an official or staff member — Right to be heard — Infringement)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/95

         Judgment of the Civil Service Tribunal (Second Chamber) of 16 December 2015 — DE v EMA
   (Case F-135/14) (1)

   ((Civil service - EMA staff - Placement on ‘non-active status’ - Act adversely affecting an official or staff member - Right to be heard - Infringement))
   (2016/C 048/107)
   Language of the case: English

      Parties

      Applicant: DE (represented by: S. Rodrigues and A. Blot, lawyers)

      Defendant: European Medicines Agency (represented by: S. Marino, T. Jabłoński and N. Rampal Olmedo, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers)

      Re:

   Application for annulment of the EMA’s decision to suspend the applicant from duty and a request for compensation for the non-material harm which he claims to have suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 31 January 2014 by which the European Medicines Agency placed DE on ‘non-active status’;

               2.

               Orders the European Medicines Agency to pay DE the sum of EUR 10 000;

               3.

               Orders the European Medicines Agency to bear its own costs and to pay the costs incurred by DE.

      (1)  OJ C 16, 19/1/2015, p. 50.


title: Judgment of the Court of 10 December 2010 in Case E-1/10 — Periscopus AS v Oslo Børs ASA and Erik Must AS (Directive 2004/25/EC — Acquisition of control — Mandatory bid — Adjustment of the bid price — Clearly determined circumstances and criteria — Reference to market price)

text:
               12.5.2011

               EN

               Official Journal of the European Union

               C 141/13

         JUDGMENT OF THE COURT
   of 10 December 2010
   in Case E-1/10
   Periscopus AS v Oslo Børs ASA and Erik Must AS
   (Directive 2004/25/EC — Acquisition of control — Mandatory bid — Adjustment of the bid price — Clearly determined circumstances and criteria — Reference to market price)
   2011/C 141/13
   In Case E-1/10 between Periscopus AS and Oslo Børs AS and Erik Must AS — REQUEST to the Court under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice by Oslo tingrett (Oslo District Court), Norway, concerning the interpretation of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids, as adapted to the EEA Agreement by Protocol 1 thereto, the Court, composed of Carl Baudenbacher, President and Judge-Rapporteur, Thorgeir Örlygsson and Henrik Bull, Judges, gave judgment on 10 December 2010, the operative part of which is as follows:
   The second subparagraph of Article 5(4) of Directive 2004/25/EC of the European Parliament and of the Council of 21 April 2004 on takeover bids precludes national legislation which provides that the price to be offered in a mandatory bid must be adjusted to be at least as high as the ‘market price’ in situations where it is clear that the ‘market price’ is higher than the price calculated according to the main rule prescribed in accordance with the first subparagraph of Article 5(4), without further clarification of the term ‘market price’. In particular, further clarification is needed of the time interval relevant for determining the ‘market price’, whether or not the ‘market price’ must be calculated on the basis of a volume-weighted average, and whether actual trades are necessary or standing buy or sell orders suffice in order to establish a ‘market price’.


title: Case C-440/09: Judgment of the Court (Fifth Chamber) of 3 March 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Poland)) — Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska (Social security for migrant workers — Article 45(1) of Regulation (EEC) No 1408/71 — Minimum period required by national law for acquisition of entitlement to a retirement pension — Account to be taken of the period of contribution completed in another Member State — Aggregation — Rules for calculation)

text:
               30.4.2011

               EN

               Official Journal of the European Union

               C 130/5

         Judgment of the Court (Fifth Chamber) of 3 March 2011 (reference for a preliminary ruling from the Sąd Najwyższy — Poland)) — Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu v Stanisława Tomaszewska
   (Case C-440/09) (1)

   (Social security for migrant workers - Article 45(1) of Regulation (EEC) No 1408/71 - Minimum period required by national law for acquisition of entitlement to a retirement pension - Account to be taken of the period of contribution completed in another Member State - Aggregation - Rules for calculation)
   2011/C 130/09
   Language of the case: Polish

      Referring court

   Sąd Najwyższy

      Parties to the main proceedings

      Applicant: Zakład Ubezpieczeń Społecznych Oddział w Nowym Sączu

      Defendant: Stanisława Tomaszewska

      Re:

   Reference for a preliminary ruling — Sąd Najwyższy — Interpretation of Article 45(1) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ, English Special Edition 1971 (II), p. 416) and of Article 15(1)(a) of Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 (OJ, English Special Edition 1972 (I), p. 159) — Early retirement pension based on the duration of contribution periods — Method of calculating benefits — Aggregation of contribution periods completed in another Member State and those completed in the Member State concerned prior to or after the addition of the additional periods provided for under national law and amounting to one third of the contribution periods

      Operative part of the judgment

   Article 45(1) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1992/2006 of the European Parliament and of the Council of 18 December 2006, must be interpreted as meaning that, in the determination of the minimum insurance period required by national law for the purpose of the acquisition by a migrant worker of entitlement to a retirement pension, the competent institution of the Member State concerned must take into consideration, for the purposes of determining the limit which non-contribution periods may not exceed in relation to contribution periods, as provided for by the legislation of that Member State, all insurance periods completed in the course of the migrant worker’s career, including those completed in other Member States.

      (1)  OJ C 37, 13.2.2010.


title: Joined Cases C-338/04, C-359/04 and C-360/04: Judgment of the Court (Grand Chamber) of 6 March 2007 (references for preliminary ruling from the Tribunale di Larino, Tribunale di Teramo — Italy) — Criminal proceedings against Massimiliano Placanica (Case C-338/04), Christian Palazzese (Case C-359/04), Angelo Sorricchio (Case C-360/04) (Freedom of establishment — Freedom to provide services — Interpretation of Articles 43 EC and 49 EC — Games of chance — Collection of bets on sporting events — Licensing requirement — Exclusion of certain operators by reason of their type of corporate form — Requirement of police authorisation — Criminal penalties)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/3

         Judgment of the Court (Grand Chamber) of 6 March 2007 (references for preliminary ruling from the Tribunale di Larino, Tribunale di Teramo — Italy) — Criminal proceedings against Massimiliano Placanica (Case C-338/04), Christian Palazzese (Case C-359/04), Angelo Sorricchio (Case C-360/04)
   (Joined Cases C-338/04, C-359/04 and C-360/04) (1)

   (Freedom of establishment - Freedom to provide services - Interpretation of Articles 43 EC and 49 EC - Games of chance - Collection of bets on sporting events - Licensing requirement - Exclusion of certain operators by reason of their type of corporate form - Requirement of police authorisation - Criminal penalties)
   (2007/C 95/04)
   Language of the case: Italian
   Referring court
   Tribunale di Larino, Tribunale di Teramo
   Parties in the main proceedings
   Massimiliano Placanica (Case C-338/04), Christian Palazzese (Case C-359/04), Angelo Sorricchio (Case C-360/04),
   Re:
   Preliminary ruling — Tribunale di Larino — Interpretation of Article 43 et seq and Article 49 EC and of the judgment of the Court of Justice in Case C-243/01 Gambelli and Others — National law which imposes penalties in relation to the organising of the taking of bets, and the collecting of bets, on various events and, in particular, on sporting events — Collection of bets online by an unlicensed betting operator on behalf of a company operating with a licence in another Member State
   Operative part of the judgment
   The Court:

               1.

               National legislation which prohibits the pursuit of the activities of collecting, taking, booking and forwarding offers of bets, in particular bets on sporting events, without a licence or a police authorisation issued by the Member State concerned, constitutes a restriction on the freedom of establishment and the freedom to provide services, provided for in Articles 43 EC and 49 EC respectively.

               2.

               It is for the national courts to determine whether, in so far as national legislation limits the number of operators active in the betting and gaming sector, it genuinely contributes to the objective of preventing the exploitation of activities in that sector for criminal or fraudulent purposes.

               3.

               Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which excludes — and, moreover, continues to exclude — from the betting and gaming sector operators in the form of companies whose shares are quoted on the regulated markets.

               4.

               Articles 43 EC and 49 EC must be interpreted as precluding national legislation, such as that at issue in the main proceedings, which imposes a criminal penalty on persons such as the defendants in the main proceedings for pursuing the organised activity of collecting bets without a licence or a police authorisation as required under the national legislation, where those persons were unable to obtain licences or authorisations because that Member State, in breach of Community law, refused to grant licences or authorisations to such persons.

      (1)  OJ C 273, 6.11.2004.

      OJ C 262, 23.10.2004.


title: Case T-264/12: Judgment of the General Court of 29 February 2016 — UTi Worldwide and Others v Commission (Competition — Agreements, decisions and concerted practices — International air freight forwarding services — Decision finding an infringement of Article 101 TFEU — Surcharges and tariff mechanisms having an impact on the final price of services — Errors of assessment — Proof — Whether trade between Member States affected — Appreciable effect on competition — Amount of the fine — Gravity of the infringement — Proportionality — Joint and several liability — Unlimited jurisdiction)

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/26

         Judgment of the General Court of 29 February 2016 — UTi Worldwide and Others v Commission
   (Case T-264/12) (1)

   ((Competition - Agreements, decisions and concerted practices - International air freight forwarding services - Decision finding an infringement of Article 101 TFEU - Surcharges and tariff mechanisms having an impact on the final price of services - Errors of assessment - Proof - Whether trade between Member States affected - Appreciable effect on competition - Amount of the fine - Gravity of the infringement - Proportionality - Joint and several liability - Unlimited jurisdiction))
   (2016/C 136/36)
   Language of the case: English

      Parties

      Applicants: UTi Worldwide, Inc. (Tortola, British Virgin Islands), UTi Nederland BV (Schiphol, Netherlands), and UTI Worldwide (UK) Ltd (Reading, United Kingdom) (represented by: P. Kirch, lawyer)

      Defendant: European Commission (represented by: A. Biolan, V. Bottka and G. Meessen, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as it concerns the applicants, and, in the alternative, for variation of the fine imposed on them in that decision.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision C(2012) 1959 final of 28 March 2012 relating to a proceeding under Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39462 — Freight forwarding), in so far as the amount of the fine imposed on UTi Worldwide, Inc. exceeds that of the fines imposed on UTi Nederland BV and UTI Worldwide (UK) Ltd;

               2.

               Sets the overall amount of the fine imposed on UTi Worldwide in Article 2(2) of Decision C(2012) 1959 final at EUR 2 965 000, the amount of the fine which is attributable to that undertaking pursuant to the first line of Article 2(2)(j) of that decision being set at EUR 1 692 000;

               3.

               Dismisses the action as to the remainder;

               4.

               Orders UTi Worldwide, UTi Nederland and UTI Worldwide (UK) to bear nine tenths of the costs of the European Commission and of their own costs;

               5.

               Orders the European Commission to bear one tenth of its own costs and of the costs of UTi Worldwide, UTi Nederland and UTI Worldwide (UK).

      (1)  OJ C 235, 4.8.2012.


title: Reference for a preliminary ruling by the Tribunal d'Arrondissement, Luxembourg, by order of that court of 15 July 1998 in the case of the State of the Grand Duchy of Luxembourg v. Linster and Others (Case C-287/98)

text:
26.9.98                EN                Official Journal of the European Communities                                         C 299/17
           infringements committed by Kopparfors, the                     in the infringement and failed to adopt appropriate
           burden of proof is imposed on the appellant and,               measures in order to prevent the continuation of the
           with respect to Feldmühle and CBC, mere                        infringement;
           assumptions are relied on to the detriment of the
           appellant;
                                                                    (iii) held that the Commission's failure to set out in the
     (iii) violate the principle that punishment requires                 Decision the factors of which it had systematically
           fault in that, without any basis in the facts of the           taken account when fixing the appellant's fine was
           case, an assumption is made that the appellant                 not an infringement of the duty to state reasons such
           must have been aware of Feldmühle's and CBC's                  as would justify annulment in whole or in part of the
           participation in the cartel;                                   fine imposed,
     (iv) offend the laws of logic in that the appellant is         and, further and in the alternative, that it erred in law in
           held to be under an obligation to take measures          that it:
           against infringements committed by Feldmühle
           and CBC of which it was not even aware and
           without regard to the fact that the appellant,           (iv) held that its own conclusion that the Commission
           even if he had been aware thereof, did not have                had failed to prove all the alleged effects of the
           the power to implement such measures;                          infringement could not materially affect its
                                                                          assessment of the gravity of the infringement and
     (v)   infringe the rules regarding the burden    of proof            thus could not lead to a reduction in the fine.
           and the principle in dubio pro reo in      that the
           appellant is required to prove that it      did not      (1) Not yet published.
           continue the infringing conduct             of its       (2) OJ L 243, 19.9.1994, p. 1.
           subsidiaries;                                            (3) Official Journal, English Special Edition, 1962, p. 87.
     (vi) violate     essential   procedural     requirements
           pursuant to Articles 173 and 190 in that the fine
           imposed on the appellant is not annulled
           although it is acknowledged in the judgment that
           the criteria applied in calculating the individual
           amount of the fine should have been disclosed in         Reference for a preliminary ruling by the Tribunal
           the Decision.                                            d'Arrondissement, Luxembourg, by order of that court of
                                                                    15 July 1998 in the case of the State of the Grand Duchy
                                                                                of Luxembourg v. Linster and Others
Ð Alternatively, the fine imposed on Stora must be
     annulled or at least reduced because the Court of First                                 (Case C-287/98)
     Instance made on the basis substantive errors of                                          (98/C 299/28)
     Community law which:
     vii) violate Article 15(2) of Regulation No 17 in that
                                                                    Reference has been made to the Court of Justice of the
           the Commission's failure to fully prove the
                                                                    European Communities by an order of the Tribunal
           effects of the collusion on prices is held not to
                                                                    d'Arrondissement (District Court), Luxembourg, of 15 July
           materially affect the assessment of the gravity of
                                                                    1998, which was received at the Court Registry on 27 July
           the infringement.
                                                                    1998, for a preliminary ruling in the case of the State of
                                                                    the Grand Duchy of Luxembourg v. Linster and Others,
                                                                    on the following questions:
Pleas in law and main arguments adduced in support:
                                                                    1. Must Articles 177 and 189 of the EC Treaty be
It is submitted that the Court of First Instance erred in                interpreted as meaning that a court against whose
law in that it:                                                          decisions there is no judicial remedy under national
                                                                         law and which is called on to verify the legality of a
                                                                         procedure for the expropriation on grounds of public
(i)   held that infringements of Article 85 committed by
                                                                         utility of immovable property belonging to a private
      its subsidiary Kopparfors must be imputed to the
                                                                         individual may find that the assessment of the impact
      appellant without regard to the Commission's failure
                                                                         of the construction of a motorway required by
      to establish whether the appellant had exercised any
                                                                         Article 5(1) of Council Directive 85/337/EEC of
      influence on Kopparfors' commercial policy;
                                                                         27 June 1985 (1) on the assessment of the effects of
                                                                         certain public and private projects on the environment,
(ii) disregarded the relevant case-law when it held that                 being a project of the kind referred to in Article 4(1)
      infringements committed by Feldmühle and CBC                       thereof, has not been carried out and that the
      prior to and after their acquisition by the appellant              information obtained in accordance with Article 5 has
      must be imputed to the appellant because the                       not been made available to the public and that the
      appellant could not be unaware of their participation              members of the public concerned have not had an
 ---pagebreak--- C 299/18             EN                  Official Journal of the European Communities                                     26.9.98
   opportunity of expressing their views before the                     of the motorway to be built, to be regarded as a
   project is initiated, contrary to the requirements of                project to which the Directive does not apply?
   Article 6(2), the Directive not having been fully
   transposed into national law despite the expiry of the           (1) OJ L 175, 5.7.1985, p. 40.
   period laid down for that purpose, or does such a
   finding involve an appraisal of the direct effect of the
   Directive, so that the court is required to refer a
   question on the matter to the Court of Justice of the
   European Communities?
                                                                    Action brought on 28 July 1998 by the Commission of the
                                                                       European Communities against the Republic of Austria
2. If the Court of Justice, in reply to the first question,                                (Case C-290/98)
   holds that the court against whose decisions there is
   no judicial remedy under national law is under an                                         (98/C 299/29)
   obligation to seek a preliminary ruling from the Court
   of Justice, then the question referred is as follows.
                                                                    An action against the Republic of Austria was brought
                                                                    before the Court of Justice of the European Communities
                                                                    on 28 July 1998 by the Commission of the European
   May the abovementioned Directive be applied to a                 Communities, represented by Christina Tufvesson and
   dispute concerning the expropriation on grounds of               Viktor Kreuschitz, of its Legal Service, acting as Agents,
   public utility of immovable property belonging to a              with an address for service in Luxembourg at the office of
   private individual and may the court called on to                Carlos Gómez de la Cruz, a member of the European
   examine the legality of the expropriation procedure              Commission's Legal Service, Wagner Centre C 254,
   find that, contrary to Articles 5(1) and 6(2), no                Kirchberg, Luxembourg.
   environmental impact assessment has been carried out
   and that the information obtained in accordance with
                                                                    The applicant claims that the Court should:
   Article 5 has not been made available to the public
   and that the members of the public concerned have
   not had an opportunity of expressing their views                 1. declare that by
   before the construction of a motorway, a project of
   the kind referred to in Article 4(1), is initiated?                  Ð limiting the prohibition on money laundering
                                                                            contained in paragraph 165 of the Strafgesetzbuch
                                                                            (penal code) to assets having a value of over ATS
                                                                            100 000,
3. Does the act of national legislation mentioned in
   Article 1(5) of the abovementioned Directive have an
   independent meaning in Community law or must it be                   Ð not requiring customer identification when a
   characterised in accordance with domestic law?                           securities account is opened as from 1 January
                                                                            1994 (the date on which the Treaty on the
                                                                            European Economic Area entered into force), but
                                                                            as from 1 August 1996,
4. If the term specific act of national legislation' has an
   independent meaning in Community law, is a measure                   Ð not requiring customer identification for all
   adopted by the parliament after public parliamentary                     transactions into or out of an existing securities
   debate to be regarded as an act of national legislation                  account, but only, under paragraph 40(5) of the
   within the meaning of Article 1(5) of the Directive?                     Bankwesengesetz (bank law), requiring that the
                                                                            customer's identity be established for deposits and
                                                                            purchases of securities for a securities account,
5. Does the term project' as used in Article 1(5) of the               Ð not requiring customer identification whenever a
   abovementioned Directive, the details of which are                       savings account is opened on or after 1 January
   adopted by a specific act of national legislation, have                  1994,
   an independent meaning in Community law or must it
   be characterised in accordance with domestic law?                    Ð not requiring customer identification for all
                                                                            operations relating to a savings account book,
                                                                            whether opened before or after 1 January 1994,
6. If the term project' as used in Article 1(5) of the
   Directive, the details of which are adopted by a                     the Republic of Austria has failed to fulfil its
   specific act of national legislation, has an independent             obligations under the EC Treaty and Articles 2, 3(1),
   meaning in Community law, is the project adopted by                  3(5) and 3(6) of Council Directive 91/308/EEC of
   decision of the parliament after public parliamentary                10 June 1991 on prevention of the use of the financial
   debate to construct a motorway in order to establish a               system for the purpose of money laundering (1) (the
   link with two other roads, without settling the route                Directive');