title: JUDGMENT OF THE COURT (Fourth Chamber) of 26 October 1995 in Case C-143/94 (reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio): Furlanis Costruzioni Generali SpA v. Azienda Nazionale Autonoma Strade (ANAS) (Council Directives 71/305/EEC and 89/440/EEC - Public contracts - Abnormally low tenders in relation to the transaction)

text:
No C 333/4             EN                   Official Journal of the European Communities                                   9 . 12 . 95
               JUDGMENT OF THE COURT                                                  JUDGMENT OF THE COURT
                          ( Fifth Chamber )                                                    ( Fourth Chamber)
                      of 26 October 1995                                                     of 26 October 1995
in    Case C-51/94: Commission of the European                         in Case C-143/94 ( reference for a preliminary ruling from
      Communities v. Federal Republic of Germany ( 1 )                 the Tribunale Amministrativo Regionale del Lazio ):
(Labelling andpresentation offoodstuffs — Article 30 ofthe             Furlanis Costruzioni Generali SpA v. Azienda Nazionale
EC Treaty and Directive 79/112/EEC — Reference in the                                    Autonoma Strade ( ANAS ) (M
trade description to a substance included in the list of               (Council Directives 71/305/EEC and 89/440/EEC —
                              ingredients)                             Public contracts — Abnormally low tenders in relation to
                            ( 95/C 333/06 )                                                      the transaction)
                                                                                ( 95/C 333/07)
                (Language of the case: German)
(Provisional translation; the definitive translation will be
          published in the European Court Reports)                                      (Language of the case: Italian)
In Case C-51 /94 : Commission of the European
Communities ( Agents : Hendrik van Lier and Angela
Bardenhewer ) v. Federal Republic of Germany ( Agents:
Ernst Roder and Bernd Kloke ) — application for a                      (Provisional translation; the definitive translation will be
declaration that, by requiring that in order to be marketed in                  published in the European Court Reports)
Germany foodstuffs containing an ingredient which does
not comply with the traditional German recipe must carry a
trade description with an additional statement indicating
that the substance in question has been used, even if that             In Case C-143/94 : reference to the Court under Article 177
substance is already included in the list of ingredients, the          of the EC Treaty by the Tribunale Amministrativo
Federal Republic of Germany has failed to fulfil its                   Regionale del Lazio ( Italy ) for a preliminary ruling in the
obligations under Article 30 et seq. of the EC Treaty and              proceedings pending before that court between Furlanis
Articles 5 , 6 and 16 of Council Directive 79/ 112/EEC of              Costruzioni Generali SpA and Azienda Nazionale
18 December 1978 on the approximation of the laws of the               Autonoma Strade ( ANAS ) — on the interpretation of
Member States relating to the labelling, presentation and              Article 29 ( 5 ) of Council Directive 71 /305/EEC of 26 July
advertising of foodstuffs for sale to the ultimate consumer            1971 concerning the coordination of procedures for the
( OJ 1979 L 33 , p. 1 ) — the Court ( Fifth Chamber ),                 award of public works contracts ( OJ, English Special
composed of D. A. O. Edward, President of the Chamber,                 Edition 1971 ( II ), p. 682 ), as amended by Article 1 ( 20 ) of
J. C. Moitinho de Almeida ( Rapporteur ), C. Gulmann,                  Council Directive 89/440/EEC of 18 July 1989 ( OJ 1989
P. Jann and L. Sevon, Judges ; F. G. Jacobs,                           L 210 , p. 1 ) — the Court ( Fourth Chamber), composed of
Advocate-General ; R. Grass, Registrar , has given a                   C. N. Kakouris ( Rapporteur ), President of the Chamber ,
judgment on 26 October 1995 , in which it:                             P. J. G. Kapteyn and H. Ragnemalm, Judges; C. O. Lenz,
                                                                       Advocate-General ; L. Hewlett, Administrator, for the
1 . declares that, by requiring that bearnaise sauce and               Registrar, gave a judgment on 26 October 1995 , the
     hollandaise sauce made with vegetable fats and certain            operative part of which is as follows :
     pastry products containing the additive E 160 F '
     should, in order to be marketed in Germany, carry
     a trade description with an additional statement
     indicating that the substance in question has been used,          The last subparagraph of Article 29 (5) of Council Directive
     even if that substance is already included in the                 71 /305/EEC of26 July 1971 concerning the coordination of
     list of ingredients referred to in Article 6 of Council           procedures for the award of public works contracts, as
     Directive 79/112/EEC of 18 December 1978 on the                   amended by Article 1 (20) of Council Directive 89/440/EEC
     approximation ofthe laws ofthe Member States relating             of 18 July 1989, must be interpreted as meaning that only
     to the labelling, presentation and advertising of                 procedures in which the definitive award was made by
     foodstuffs for sale to the ultimate consumer, the Federal         3 1 December 1 992 are entitled to qualify for the derogation
     Republic of Germany has failed to fulfil its obligations          provided for in that provision.
     under Article 30 of the EC Treaty;
2 . dismisses the remainder of the application.
                                                                        (') OJ No C 218 , 6 . 8 . 1994 .
3 . orders the Federal Republic of Germany to pay the
     costs .
 (») OJ No C 76 , 12 . 3 . 1994 , p . 17.


title: Case T-164/10: Judgment of the General Court of 26 September 2013 — Pioneer Hi-Bred International v Commission (Approximation of laws — Deliberate release into the environment of genetically modified organisms — Authorisation procedure for placing on the market — Failure by the Commission to submit a draft decision to the Council — Action for failure to act)

text:
               16.11.2013

               EN

               Official Journal of the European Union

               C 336/16

         Judgment of the General Court of 26 September 2013 — Pioneer Hi-Bred International v Commission
   (Case T-164/10) (1)

   (Approximation of laws - Deliberate release into the environment of genetically modified organisms - Authorisation procedure for placing on the market - Failure by the Commission to submit a draft decision to the Council - Action for failure to act)
   2013/C 336/32
   Language of the case: English

      Parties

      Applicant: Pioneer Hi-Bred International, Inc. (Johnston, Iowa, United States) (represented by: J. Temple Lang, Solicitor, and T. Müller Ibold, lawyer)

      Defendant: European Commission (represented by: L. Pignataro-Nolin, N. Yerrell and C. Zadra, acting as Agents)

      Re:

   Application for a declaration under Article 265 TFEU that, by failing to submit to the Council a draft of the measures to be taken in accordance with Article 5(4) of Council Decision 1999/468/EC of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission (OJ 1999 L 184, p. 23) and by failing to take all other measures that may, depending on the development of the decision-making procedure, be necessary to ensure the adoption of the decision referred to in Article 18 of Directive 2001/18/EC of 12 March 2001 of the European Parliament and the Council on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC (OJ 2001 L 106, p. 1), the Commission has failed to fulfil its obligations under Article 18 of Directive 2001/18.

      Operative part of the judgment

   The Court:

               1.

               Declares that the European Commission has failed to fulfil its obligations under Article 18 of Directive 2001/18/EC of the European Parliament and of the Council of 12 March 2001 on the deliberate release into the environment of genetically modified organisms and repealing Council Directive 90/220/EEC by failing to submit to the Council a proposal relating to the measures to be taken pursuant to Article 5(4) of Council Decision of 28 June 1999 laying down the procedures for the exercise of implementing powers conferred on the Commission;

               2.

               Orders the Commission to pay the costs.

      (1)  OJ C 161, 19.6.2010.


title: Case T-397/10: Action brought on 13 September 2010 — ara v OHIM — Allrounder (Representation of a sports shoe bearing the letter A on the side)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/51

         Action brought on 13 September 2010 — ara v OHIM — Allrounder (Representation of a sports shoe bearing the letter A on the side)
   (Case T-397/10)
   ()
   2010/C 301/82
   Language in which the application was lodged: German

      Parties

      Applicant: ara AG (Langenfeld, Germany) (represented by: M. Gail, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Allrounder SARL (Saarburg, France)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 23 June 2010 in Case R 1543/2009-1;

               —

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

      Pleas in law and main arguments

      Applicant for a Community trade mark: Allrounder SARL.

      Community trade mark concerned: Figurative mark representing a sports shoe with the letter ‘A’ on the side, for goods and services in classes 16, 18 and 25.

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant.

      Mark or sign cited in opposition: National word mark ‘A’ for goods in classes 9, 18 and 25.

      Decision of the Opposition Division: Opposition rejected.

      Decision of the Board of Appeal: Appeal dismissed as inadmissible.

      Pleas in law: Infringement of Article 81 of Regulation (EC) No 207/2009 (1) in so far as the Board of Appeal incorrectly proceeded on the basis that the office arrangements as described by the appellant’s representatives were not such as to prove that all due care required by the circumstances was taken, and accordingly rejected the application for re-establishment of the appellant’s rights with respect to the time-limit for production of the statement of grounds of appeal.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 on the Community trade mark (OJ 2009 L 78, p. 1).


title: Case T -300/06: Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (Promat)

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/27

         Action brought on 4 September 2006 — Promat v OHIM — Puertas Proma (Promat)
   (Case T -300/06)
   (2006/C 310/50)
   Language in which the application was lodged: German
   Parties

      Applicant: Promat GmbH (Ratingen, Germany) (represented by: J.Krenzel)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Puertas Proma, S.A.L.
   Form of order sought

               —

               amend the defendant's decision of 4 May 2006 (Ref. R 1058/2005-1) so as to allow the appeal in full;

               —

               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 ‘Promat’ for goods and services in Classes 1, 2, 6, 17, 19, 20 and 42 (Application No 803 825).

      Proprietor of the mark or sign cited in the opposition proceedings: Puertas Proma, S.A.L.

      Mark or sign cited in opposition: in particular, the figurative mark ‘PROMA’ for goods and services in Classes 6, 20 and 39 (Community trade mark No 239 384), the opposition being directed against the application in respect of Classes 6, 19 and 20.

      Decision of the Opposition Division: Opposition upheld.

      Decision of the Board of Appeal: Appeal dismissed.

      Pleas in law: breach of Article 8(1)(a) and (b) of Regulation (EC) No 40/94 (1), on the ground that neither the opposing signs nor the opposing goods are similar. Therefore there is no likelihood of confusion between the opposing marks.

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


title: Judgment of the Court (Second Chamber) of 21 October 2004 in Case C-64/02 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs), v Erpo Möbelwerk GmbH (Appeal — Community trade mark — Phrase DAS PRINZIP DER BEQUEMLICHKEIT — Absolute ground for refusal — Distinctive character — Article 7(1)(b) of Regulation (EC) No 40/94)

text:
               4.12.2004

               EN

               Official Journal of the European Union

               C 300/5

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 21 October 2004
   in Case C-64/02 P: Office for Harmonisation in the Internal Market (Trade Marks and Designs), v Erpo Möbelwerk GmbH (1)

   (Appeal - Community trade mark - Phrase DAS PRINZIP DER BEQUEMLICHKEIT - Absolute ground for refusal - Distinctive character - Article 7(1)(b) of Regulation (EC) No 40/94)
   (2004/C 300/08)
   Language of the case: German
   In Case C-64/02 P: appeal under Article 49 of the Statute of the Court of Justice, brought on 27 February 2002, between Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Agents: A. von Mühlendahl and G. Schneider), supported by United Kingdom of Great Britain and Northern Ireland (Agent: P. Ormond, C. Jackson, M. Bethell and M. Tappin, assisted by D. Alexander), the other party to the proceedings being: Erpo Möbelwerk GmbH (Lawyers: S. von Petersdorff-Campen and H. von Rohr) — the Court (Second Chamber), composed of: C.W.A. Timmermans (Rapporteur), President of the Chamber, C. Gulmann, J.-P. Puissochet, R. Schintgen and J.N. Cunha Rodrigues, Judges; M. Poiares Maduro, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 21 October 2004, in which it:

               1.

               Dismisses the appeal;

               2.

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

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland to bear its own costs.

      (1)  OJ C 109 of 4.5.2002.


title: Case T-249/05: Action brought on 30 June 2005 by Tineke Duyster against the Commission of the European Communities

text:
               3.9.2005

               EN

               Official Journal of the European Union

               C 217/50

         Action brought on 30 June 2005 by Tineke Duyster against the Commission of the European Communities
   (Case T-249/05)
   (2005/C 217/105)
   Language of the case: Dutch
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 30 June 2005 by Tineke Duyster, residing in Oetrange (Luxembourg), represented by W. H. A. M. van den Muijsenbergh, lawyer, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the Appointing Authority's decision of 6 April 2005;

               2.

               annul the decision on the award of parental leave of 1 November 2004 to 30 April 2005 inclusive and/or the salary slip for November 2004, and/or the Commission's decision of 30 November 2004 not to take account of the request for deferment or cancellation of the parental leave;

               3.

               find that from 1 November 2004 until 30 April 2005 inclusive Mrs Duyster has all substantive rights connected with the active service of an official and therefore, inter alia, payment according to her grade and step must be made to her with retroactive effect;

               4.

               find that this payment must be made with interest for late payment;

               5.

               find that parental leave with regard to her son may still be requested (even if, after the date when the judgment of the Court becomes effective, he is older than 12 years old or almost older than 12 years old) since the failure to approve the request submitted is the Commission's fault; alternatively, that, since the inability to take up parental leave in regard to her son is the fault of the Commission compensation must be paid for this corresponding to the loss of benefits for parental leave, insurance, seniority, the accrual of pension; appraisal reports and promotion opportunities, which can be estimated at a total of EUR 27 000; or, in the further alternative, that damages of EUR 800 per month over the period not taken up in respect of parental leave for her son shall be paid for loss of parental benefit, EUR 100 for loss of insurance, EUR 1 200 for loss of pension rights;

               6.

               find that damages of EUR 2 500 must be paid to her as compensation for the uncertainty caused to Mrs Duyster as to her status as an official and the non-material detriment resulting from that uncertainty;

               7.

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The applicant submitted an application for parental leave for the period from 8 November 2004 until 7 May 2005. In response, the Commission granted the applicant parental leave from 1 November 2004 until 30 April 2005.
   The applicant states that no formal refusal was received in response to her request for parental leave for the period from 8 November 2004 until 7 May 2005 and she concludes that her request was implicitly rejected. She also states that, as she did not challenge that rejection and did not submit any other application, she was in active service from 1 November 2004 until 30 April 2005 inclusive and is thus entitled to all benefits associated therewith.
   In support of her application the applicant also submits that the decision awarding parental leave from 1 November 2004 until 30 April 2005 was adopted contrary to the principle of equality, the principle of legal certainty, Article 42a of the Staff Regulations and Articles 25, 26, 35, 36 and 62 of the Staff Regulations.


title: Case C-207/13: Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 18 April 2013 — Wagenborg Passagiersdiensten BV and Others v Minister van Infrastructuur en Milieu; other parties: Wagenborg Passagiersdiensten BV, Terschellinger Stoombootmaatschappij BV

text:
               29.6.2013

               EN

               Official Journal of the European Union

               C 189/7

         Request for a preliminary ruling from the College van Beroep voor het Bedrijfsleven (Netherlands) lodged on 18 April 2013 — Wagenborg Passagiersdiensten BV and Others v Minister van Infrastructuur en Milieu; other parties: Wagenborg Passagiersdiensten BV, Terschellinger Stoombootmaatschappij BV
   (Case C-207/13)
   2013/C 189/14
   Language of the case: Dutch

      Referring court

   College van Beroep voor het Bedrijfsleven

      Parties to the main proceedings

      Claimants: Wagenborg Passagiersdiensten BV, Eigen Veerdienst Terschelling BV, MPS Stortemelk BV, MPS Willem Barentsz BV, MS Spathoek NV, G.A.F. Lakeman, trading as Rederij Waddentransport

      Defendant: Minister van Infrastructuur en Milieu

      Other parties: Wagenborg Passagiersdiensten BV, Terschellinger Stoombootmaatschappij BV

      Questions referred

               1.

               Does the designation of the Netherlands portion of the Waddenzee as an inland waterway (Zone 2 waterway) in Annex I to Directive 2006/87 (1) preclude the application of the Cabotage Regulation to public passenger transport services over the Waddenzee between the Netherlands mainland and the Wadden islands of Terschelling, Vlieland, Ameland and Schiermonnikoog?

               2.

               Does the applicability of the Cabotage Regulation preclude application of the PSO Regulation, (2) having regard to Article 1(2) of the PSO Regulation?

               3.

               Are Member States free, under Article 1(2) of the PSO Regulation, to declare just one or more specific parts of that regulation, in this case Article 5(3) and, related thereto, Article 5(4), to be applicable to services of public passenger transport by water?

               4.

               Can the exception provided for in Article 5(4) of the PSO Regulation, more particularly the distance criterion of 300 000 kilometres laid down in that provision, (simply) be declared to be applicable to services of public passenger transport by water?

               5.

               If the answer to Question 4 is in the affirmative, what consequences should then be attached to the fact that in the case in question operating licences for services of public passenger transport by water were granted in the absence of compliance with the requirements of Article 7(2) of the PSO Regulation?

      (1)  Directive 2006/87/EC of the European Parliament and of the Council of 12 December 2006 laying down technical requirements for inland waterway vessels and repealing Council Directive 82/714/EEC (OJ 2006 L 389, p. 1).

      (2)  Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 (OJ 2007 L 315, p. 1).


title: Case C-566/15: Judgment of the Court (Grand Chamber) of 18 July 2017 (request for a preliminary ruling from the Kammergericht Berlin — Germany) — Konrad Erzberger v TUI AG (Reference for a preliminary ruling — Free movement of workers — Principle of non-discrimination — Election of workers’ representatives to the supervisory board of a company — National legislation restricting the right to vote and to stand as a candidate to employees of establishments located in the national territory)

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/3

         Judgment of the Court (Grand Chamber) of 18 July 2017 (request for a preliminary ruling from the Kammergericht Berlin — Germany) — Konrad Erzberger v TUI AG
   (Case C-566/15) (1)

   ((Reference for a preliminary ruling - Free movement of workers - Principle of non-discrimination - Election of workers’ representatives to the supervisory board of a company - National legislation restricting the right to vote and to stand as a candidate to employees of establishments located in the national territory))
   (2017/C 300/03)
   Language of the case: German

      Referring court

   Kammergericht Berlin

      Parties to the main proceedings

      Applicant: Konrad Erzberger

      Defendant: TUI AG

      intervening parties: Vereinigung Cockpit e.V., Betriebsrat der Tui AG/Tui Group Services GmbH, Frank Jakobi, Andreas Barczewski, Peter Bremme, Dierk Hirschel, Michael Pönipp, Wilfried H. Rau, Carola Schwirn, Anette Stempel, Ortwin Strubelt, Marcell Witt, Wolfgang Flintermann, Stefan Weinhofer, ver.di -Vereinte Dienstleistungsgewerkschaft

      Operative part of the judgment

   Article 45 TFEU must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, under which the workers employed in the establishments of a group located in the territory of that Member State are deprived of the right to vote and to stand as a candidate in elections of workers’ representatives to the supervisory board of the parent company of that group, which is established in that Member State, and as the case may be, of the right to act or to continue to act as representative on that board, where those workers leave their employment in such an establishment and are employed by a subsidiary belonging to the same group established in another Member State.

      (1)  OJ C 90, 7.3.2016.


title: Case C-576/13: Action brought on 14 November 2013 — European Commission v Kingdom of Spain

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/7

         Action brought on 14 November 2013 — European Commission v Kingdom of Spain
   (Case C-576/13)
   2014/C 24/12
   Language of the case: Spanish

      Parties

      Applicant: European Commission (represented by: L. Nicolae and S. Pardo Quintillán, acting as Agents)

      Defendant: Kingdom of Spain

      Form of order sought

               —

               Declare, pursuant to the first paragraph of Article 258 of the Treaty on the Functioning of the European Union, that, by requiring, as a general rule, cargo handling undertakings operating in Spanish ports of general interest to participate in a SAGEP (Sociedad Anónima de Gestión de Estibadores Portuarios, a public limited company for the management of port cargo handlers) and in any event by not permitting them to have recourse to the market, for the purposes of recruiting their own personnel, whether on a permanent or temporary basis, unless the workers put forward by the SAGEP are unsuitable or insufficient, the Kingdom of Spain has failed to fulfil its obligations under Article 49 of the Treaty on the Functioning of the European Union;

               —

               Order the Kingdom of Spain to pay the costs.

      Pleas in law and main arguments

   The action brought by the European Commission against the Kingdom of Spain concerns the body of rules established by the Law on State Ports and the Merchant Navy in relation to cargo handling undertakings, with regard to the management of the workers involved in port cargo handling services.
   The Commission takes the view that those rules — by requiring, as a general rule, cargo handling undertakings operating in Spanish ports of general interest to participate in a SAGEP and in any event by not permitting them to have recourse to the market, for the purposes of recruiting their own personnel, whether on a permanent or temporary basis, unless the workers put forward by the SAGEP are unsuitable or insufficient — are contrary to the Kingdom of Spain’s obligations under Article 49 of the Treaty on the Functioning of the European Union on freedom of establishment.


title: Case T-294/05: Action brought on 26 July 2005 by Jean-Marc Colombani against the Commission of the European Communities

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/38

         Action brought on 26 July 2005 by Jean-Marc Colombani against the Commission of the European Communities
   (Case T-294/05)
   (2005/C 229/80)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 26 July 2005 by Jean-Marc Colombani, resident in Brussels, represented by Stéphane Rodrigues and Yola Minatchy, lawyers.
   The applicant claims that the Court should:

               —

               set aside the Commission's decision of 28 September 2004 determining the applicant's reinstatement as of 1 October 2004, and annul the decision of 21 April 2005 by which the Commission rejected the applicant's complaint brought on 20 December 2004 and requesting that the effective date of reinstatement be fixed retroactively as 1 September 2004;

               —

               request the Appointing Authority to give due effect to that annulment, in particular, to fix the effective date of the applicant's reinstatement as 1 September 2004;

               —

               award the applicant damages in respect of the harm suffered, in the suggested amount of EUR 10 000 by way of material damages and the nominal sum of EUR 1 in damages for non-material harm;

               —

               order the defendant to pay the entire costs.

         Pleas in law and main arguments
   The applicant, an official of the Commission, was on leave on personal grounds until 31 August 2004. Having requested to be reinstated at the end of his leave he was reinstated within the DG RELEX by decision of 28 September 2004.
   By the present action, the applicant seeks annulment of the reinstatement decision in so far as the latter did not reinstate him with effect from 1 September 2004, the date on which his leave expired. He submits that several posts corresponding to his profile were available within the Commission on that date and that the Commission was thus obliged to reinstate him in one of those posts in accordance with Article 40 of the Staff Regulations. He also contends that there has been an infringement of the Commission's decision of 28 April 2004 on the detailed arrangements for reinstatement on the ground that the Commission did not contact him before the end of his leave and did not, moreover, use the possibility laid down by that decision, namely that of an additional budgetary post, in order to reinstate him. Finally, the applicant submits that there has been an infringement of the principle of good administration and of the duty of care, and he also claims damages, both material and non-material, for the harm which he claims to have suffered.


title: Case F-9/11: Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — Sabbag Afota v Council (Civil service — Officials — Reports — Promotion — 2010 promotion exercise — No staff report)

text:
               4.2.2012

               EN

               Official Journal of the European Union

               C 32/43

         Judgment of the Civil Service Tribunal (First Chamber) of 15 December 2011 — Sabbag Afota v Council
   (Case F-9/11) (1)

   (Civil service - Officials - Reports - Promotion - 2010 promotion exercise - No staff report)
   2012/C 32/86
   Language of the case: French

      Parties

      Applicant: Verónica Sabbag Afota (Brussels, Belgium) (represented by: S. Orlandi, A. Coolen, J.-N. Louis and É. Marchal, lawyers)

      Defendant: Council of the European Union (represented by: M. Bauer and K. Zieleśkiewicz, agents)

      Re:

   Action to annul the decision of the appointing authority not to promote the applicant to grade AD 11 in the 2010 promotion exercise.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action brought by Ms Sabbag Afota;

               2.

               Orders Ms Sabbag Afota to bear her own costs and to pay the costs of the Council of the European Union.

      (1)  OJ C 152 of 21.05.11, p. 33.


title: Order of the Court of First Instance of 9 July 2004 in Case T-132/04: André Bonnet v Court of Justice of the European Communities (Officials — Prior administrative procedure — Manifest inadmissibility)

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/18

      ORDER OF THE COURT OF FIRST INSTANCE

   of 9 July 2004
   in Case T-132/04: André Bonnet v Court of Justice of the European Communities (1)

   (Officials - Prior administrative procedure - Manifest inadmissibility)
   (2004/C 251/34)
   Language of the case: French
   In Case T-132/04: André Bonnet, residing in Saint-Pierre-de-Vassols (France), represented by H. de Lepinau, lawyer, with an address for service in Luxembourg v Court of Justice of the European Communities (Agent: M. Schauss, with an address for service in Luxembourg) — action for, first, annulment of the decisions of 11 February and 4 March 2004 terminating, in respect of the applicant, the procedure for recruitment to the post of lecteur d'arrêts in the cabinet of the President of the Court of Justice and annulment of the decision to appoint another candidate to that post, and, second, damages — the Court of First Instance (Second Chamber), composed of A. W. H. Meij, acting for the President, N. J. Forwood and I. Pelikánová, Judges; H. Jung, Registrar, made an order on 9 July 2004, the operative part of which is as follows:

               (1)

               The action is dismissed.

               (2)

               Each party is ordered to bear its own costs.

      (1)  OJ No C 168 of 26.6.2004.


title: Case C-296/06: Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 3 July 2006 — Telecom Italia SpA v Ministero dell'Economia e delle Finanze, Ministero delle Comunicazioni

text:
               16.9.2006

               EN

               Official Journal of the European Union

               C 224/22

         Reference for a preliminary ruling from the Tribunale Amministrativo Regionale del Lazio (Italy) lodged on 3 July 2006 — Telecom Italia SpA v Ministero dell'Economia e delle Finanze, Ministero delle Comunicazioni
   (Case C-296/06)
   (2006/C 224/42)
   Language of the case: Italian
   Referring court
   Tribunale Amministrativo Regionale del Lazio
   Parties to the main proceedings

      Applicant: Telecom Italia SpA

      Defendants: Ministero dell'Economia e delle Finanze, Ministero delle Comunicazioni
   Question referred
   Is Article 20(3) of Law No 448/1998 in conjunction with Article 4(9) of Law No 249/1997 compatible with Articles 11, 22 and 25 of Directive 97/13/EC? (1)

      (1)  OJ 1997 L 117, p. 15.


               26.11.2005

               EN

               Official Journal of the European Union

               C 296/19

         Removal from the register of Case C-74/05 (1)

   (2005/C 296/41)

      (Language of the case: French)

   By order of 27 April 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-74/05 Commission of the European Communities v Grand Duchy of Luxembourg.

      (1)  OJ C 82, 2.4.2005.


title: Judgment of the Court (Third Chamber) of 8 September 2005 in Case C-121/03: Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil obligations — Directives 75/442/EEC and 91/156/EEC — Meaning of ‘waste’ — Directives 85/337/EEC and 97/11/EC — Assessment of the effects of certain public and private projects on the environment — Directive 80/68/EEC — Protection of groundwater against pollution caused by certain dangerous substances — Directive 80/778/EEC — Quality of water intended for human consumption)

text:
               29.10.2005

               EN

               Official Journal of the European Union

               C 271/2

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 8 September 2005
   in Case C-121/03: Commission of the European Communities v Kingdom of Spain (1)

   (Failure of a Member State to fulfil obligations - Directives 75/442/EEC and 91/156/EEC - Meaning of ‘waste’ - Directives 85/337/EEC and 97/11/EC - Assessment of the effects of certain public and private projects on the environment - Directive 80/68/EEC - Protection of groundwater against pollution caused by certain dangerous substances - Directive 80/778/EEC - Quality of water intended for human consumption)
   (2005/C 271/03)
   Language of the case: Spanish
   In Case C-121/03: Action under Article 226 EC for failure to fulfil obligations, brought on 19 March 2003, by Commission of the European Communities (Agent: G. Valero Jordana) v Kingdom of Spain (Agent: N. Díaz Abad) — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, J.P. Puissochet (Rapporteur), S. von Bahr, U. Lõhmus and A. Ó Caoimh, Judges; C. Stix-Hackl, Advocate General; M. Ferreira, Principal Administrator, gave a judgment on 8 September 2005, in which it:

               1.

               Declares that, by failing to carry out, prior to the construction of the pig farms in the Baix Ter area or their alteration, an impact assessment, contrary to the requirements of Articles 2 and 4(2) of Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment, and by exceeding, in various public water distribution networks in the Baix Ter area, the maximum admissible concentration for the nitrates parameter laid down in point 20 of Annex IC to Council Directive 80/778/EEC of 15 July 1980 relating to the quality of water intended for human consumption, contrary to Article 7(6) of that directive, the Kingdom of Spain has failed to fulfil its obligations under those directives;

               2.

               Dismisses the remainder of the action;

               3.

               Orders the Kingdom of Spain to pay two thirds of all the costs and the Commission of the European Communities to bear the other third.

      (1)  OJ C 135 of 07.06.2003.


title: Case C-73/15: Order of the President of the Court of 23 September 2016 (request for a preliminary ruling from the Curtea de Apel Oradea — Romania) — SC Vicdantrans SRL v Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Bihor, Administrația Fondului pentru Mediu

text:
               19.12.2016

               EN

               Official Journal of the European Union

               C 475/14

         Order of the President of the Court of 23 September 2016 (request for a preliminary ruling from the Curtea de Apel Oradea — Romania) — SC Vicdantrans SRL v Direcția Generală Regională a Finanțelor Publice Cluj Napoca prin Administrația Județeană a Finanțelor Publice Bihor, Administrația Fondului pentru Mediu
   (Case C-73/15) (1)

   (2016/C 475/21)
   Language of the case: Romanian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 155, 11.5.2015.


title: Case T-63/14: Action brought on 29 January 2014 — Iran Insurance v Council

text:
               15.3.2014

               EN

               Official Journal of the European Union

               C 78/16

         Action brought on 29 January 2014 — Iran Insurance v Council
   (Case T-63/14)
   2014/C 78/33
   Language of the case: English

      Parties

      Applicant: Iran Insurance Company (Tehran, Iran) (represented by: D. Luff, lawyer)

      Defendant: Council of the European Union

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul paragraph 2 of the Annex to Council Decision 2013/661/CFSP of 15 November 2013 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2013 L 306, p. 18);

               —

               Annul paragraph 2 of the Annex to Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013 implementing Regulation (EU) No 267/2012 concerning restrictive measures against Iran (OJ 2013 L 306, p. 3);

               —

               Declare Article 20(1)(c) of Council Decision 2010/413/CFSP (1), as amended by Article 1(7) of Council Decision 2012/35/CFSP (2) of 23 January 2012, and Articles 23 (2) (d) and 46(2) of Regulation 267/2012 (3) of 23 March 2012 inapplicable to the applicant;

               —

               Order the defendant to pay the applicant’s costs.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging that the specific reason for the listing of Iran Insurance Company is unsubstantiated. The applicant clearly denied it provided financial support to the Government of Iran. Furthermore, the applicant has not provided nuclear support to Iran. Hence the requirements of Article 20.1(c) of Council Decision 2010/413/CFSP (as subsequently amended by Article 1(7) of Council Decision 2012/35/CFSP of 23 January 2012, Article 1(8) of Council Decision 2012/635/CFSP of 15 October 2012 and Article 1(2) of Council Decision 2012/829/CFSP of 21 December 2012), and the requirements of Article 23(2)(d) of Council Regulation (EU) No 267/2012 (as subsequently amended by Article 1(11) of Council Regulation 1263/2012 of 21 December 2012) are not met.

               2.

               Second plea in law, alleging that by sanctioning Iran Insurance Company on the sole grounds it is a Government-owned company, the Council discriminated against the applicant as compared with other publicly-owned companies of Iran which are not sanctioned. While doing so, the Council violated the principles of equality, non-discrimination and sound administration.

               3.

               Third plea in law, alleging that the Council did not adequately state the reasons of its decision to maintain the applicant in the list of sanctioned entities. While referring to the ‘impact of the measures in the context of the Union’s policy objectives’, it failed to specify the type of impact it refers to and how the measures would address such impact.

               4.

               Fourth plea in law, alleging that by maintaining the applicant on the list of sanctioned companies, the Council has misused its powers. The Council refused in practice to comply with the judgment of the General Court in case T-12/11. The Council undermined the institutional construct of the European Union and the applicant’s right to obtain justice and see it applied. The Council also evaded its own responsibilities and obligations under Council Decision 2013/661/CFSP of 15 November 2013 and Council Implementing Regulation (EU) No 1154/2013 of 15 November 2013, as they were clearly specified to the Council by the Court in its above-mentioned judgment.

               5.

               Fifth plea in law, alleging that the Council violated the principle of legitimate expectations by not complying with a judgment of the Court, in which the Council was a party against the applicant and which the Council lost, by failing to even comply with the rationale and motivations of the judgment, by making a factual mistake regarding the applicant’s business and its presumed role towards the Government of Iran, by failing to carry out the slightest investigation into the applicant’s actual role and business in Iran whereas this was indicated by the Court as an important aspect of the EU’s sanctions’ regime against Iran, and by maintaining the sanctions beyond 20 January 2014, date at which the EU agreed on revenue generating activities for Iran, since Iran is no longer considered to engage in nuclear proliferation activities.

               6.

               Sixth plea in law, alleging that the Council violated the principle of proportionality.

      (1)  Council Decision of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39)

      (2)  Council Decision 2012/35/CFSP of 23 January 2012 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2012 L 19, p. 22)

      (3)  Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1)


title: Case T-129/02: Action brought on 17 April 2002 by Torraspapel SA against the Commission of the European Communities

text:
13.7.2002              EN                      Official Journal of the European Communities                                        C 169/37
Action brought on 17 April 2002 by Torraspapel SA                         The Commission has also breached Article 15(2) of Regulation
  against the Commission of the European Communities                      17/62 in that it has wrongly classed the alleged infringement
                                                                          as ‘very serious’. Firstly, in defining the alleged cartel as ‘price
                                                                          fixing market sharing practices’, the Commission seeks to
                         (Case T-129/02)                                  confer a disproportionate importance on the alleged market
                                                                          allocation practices, misrepresenting their gravity. Secondly,
                                                                          in classing the alleged infringement as ‘very serious’, the
                        (2002/C 169/65)                                   Commission does not take account of the difference between
                                                                          agreements fixing prices, which lead to uniform prices, and
                                                                          other price agreements, which do not lead to uniform prices.
                   (Language of the case: English)                        Moreover, the Commission has failed properly to examine the
                                                                          relative gravity of the infringement allegedly committed by the
                                                                          applicant. In short, the defendant has failed to take into
                                                                          consideration the fact that the applicant, as it claims, did not
An action against the Commission of the European Communi-                 apply the price increases allegedly fixed and thus defeated the
ties was brought before the Court of First Instance of the                anti-competitive effects of the alleged cartel; in addition the
                                                                          Commission wrongly assessed the effective capacity of the
European Communities on 17 April 2002 by Torraspapel SA,
represented by Mr Onno W. Brouwer and Mr Francisco Cantos                 applicant to cause damage to competition.
of Freshfields Bruckhaus Deringer, Brussels (Belgium).
                                                                          (1) Not yet published in the OJ.
The applicant claims that the Court should:
—     annul Article 1 of the contested Decision in so far as it
      establishes an infringement of Article 81, paragraph 1, of
      the Treaty by the applicant in the period from 1 January
      1992 to September 1993; and reduce the fine accord-
      ingly;                                                              Action brought on 17 April 2002 by Kronopoly GmbH
                                                                          & Co. KG against the Commission of the European
                                                                                Communities
—     substantially reduce the amount of the fine imposed on
      the applicant in Article 3 of the contested Decision;
                                                                                (Case T-130/02)
—     order the Commission to pay the costs.
                                                                                (2002/C 169/66)
                                                                                (Language of the case: German)
Pleas in law and main arguments
                                                                          An action against the Commission of the European Communi-
The contested Decision in the present case is the same as in              ties was brought before the Court of First Instance of the
case T-109/02 Bolloré/Commission (1). By this Decision, the               European Communities on 17 April 2002 by Kronopoly
Defendant found that the applicant and ten other manufac-                 GmbH & Co. KG, Heiligengrabe (Germany), represented by
turers of carbonless paper had infringed Article 81(1) of the             R. Nierer, lawyer.
EC Treaty and Article 53(1) of the EEA Agreement by
participating in a complex of agreements and concerted
practices by which they fixed price increases, allocated sales            The applicant claims that the Court should:
quotas and fixed market shares and set up machinery to
monitor the implementation of the restrictive agreements.                 —     annul the Commission’s decision of 5 February 2002 not
                                                                                to correct the decision of 3 July 2001 on planned aid
                                                                                No N 813/2000;
In support of its arguments, the applicant submits that the
Commission has wrongly applied Article 81(1) of the Treaty                —     order the defendant to bear its own costs and to pay
and violated the principle of presumption of innocence, as                      those of the applicant.
well as an essential procedural requirement, as it has not
sufficiently proven that the applicant committed an infringe-
ment of the above-mentioned provision from January 1992
until September 1993. It is stressed in this regard that such an          Pleas in law and main arguments
approach does not mean that the applicant would recognise
that there was an infringement concerning the period there-
after. It has however chosen not to lodge an appeal against the           In the contested decision, the Commission established a
entire decision of the Commission.                                        competitive factor of 0,75 in respect of the notified aid. In the


title: Case C-408/11: Reference for a preliminary ruling from the Amtsgericht Münster (Germany) lodged on 1 August 2011 — Criminal proceedings against Thomas Karl-Heinz Kerkhoff

text:
               22.10.2011

               EN

               Official Journal of the European Union

               C 311/20

         Reference for a preliminary ruling from the Amtsgericht Münster (Germany) lodged on 1 August 2011 — Criminal proceedings against Thomas Karl-Heinz Kerkhoff
   (Case C-408/11)
   2011/C 311/34
   Language of the case: German

      Referring court

   Amtsgericht Münster (Germany)

      Parties to the main proceedings

   Thomas Karl-Heinz Kerkhoff
   Staatsanwaltschaft Münster

      Question referred

   Is Article 11(4) of Directive 2006/126/EC (1) to be interpreted as meaning that a Member State is entitled to refuse, on a long-term basis, to recognise a driving licence issued by another Member State, if the holder previously had his driving licence withdrawn on the territory of the first Member State, without a separate period of suspension before a new licence is issued having been imposed or a period of suspension imposed having expired?

      (1)  Directive 2006/126/EC of the European Parliament and of the Council of 20 December 2006 on driving licences (Recast); OJ 2006 L 403, p. 18.


title: Case T-355/00: Action brought on 24 November 2000 by Daimler Chrysler AG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 28/28                EN                     Official Journal of the European Communities                                    27.1.2001
In support of his application the applicant alleges that:                The applicant claims that the Court should:
—     there is nothing in the Act of 20 September 1976 or in             —     annul the decision of the Third Board of Appeal of the
      the Rules of Procedure of the European Parliament                        Office for Harmonisation in the Internal Market (Trade
      permitting the Member States to terminate, for national                  Marks and Designs) of 12 September 2000 in Case
      reasons, the term of office of an MEP, other than in cases               R 142/2000-3,
      of incompatibilities arising during the term of office,
      which is not the case here;                                        —     order the Office for Harmonisation in the Internal Market
                                                                               (Trade Marks and Designs) to pay the costs.
—     such a measure is all the more contrary to the principles
      of Community law inasmuch as it is the result of an
      entirely national decision, which cannot by itself be the          Pleas in law and main arguments
      basis for a Community decision;
                                                                         Mark:                         Word mark ‘TELE AID’ — Appli-
—     there is a general legal principle based on the generally                                        cation No 469 957
      applicable rules of law of the Member States which means
      that termination must be decided by the parliamentary              Goods or services:            Goods and services in Classes 12,
      assembly concerned itself;                                                                       9, 37, 38, 39 and 42 (including
                                                                                motor vehicles, motor vehicle
—     the substantive procedural rules have been disregarded in                                        repair, equipment for the trans-
      the present case inasmuch as the Legal Affairs Committee                                         mission of speech and data, emer-
      was not convened and the applicant was not given a                                               gency call systems for motor
      hearing by that committee;                                                                       vehicles, breakdown assistance,
                                                                                rescue services)
—     in the contested measure, the President of the European            Decision        contested     Refusal by the examiner to register
      Parliament purportedly spoke on behalf of the Parliament           beforethe     Board of
      when she did not have the authority to do so.                      Appeal:
                                                                         Pleas in law:                 — Infringement of Article 7(1)(b)
Finally, the applicant alleges breach of the principles of                                                 of Regulation (EC) No 40/94
parliamentary immunity and legal certainty.
                                                                                — Infringement of Article 7(1)(c)
                                                                                of Regulation (EC) No 40/94
Action brought on 24 November 2000 by Daimler Chrys-                     Action brought on 24 November 2000 by Daimler Chrys-
ler AG against the Office for Harmonisation in the                       ler AG against the Office for Harmonisation in the
         Internal Market (Trade Marks and Designs)                                Internal Market (Trade Marks and Designs)
                        (Case T-355/00)                                                          (Case T-356/00)
                         (2001/C 28/51)                                                           (2001/C 28/52)
                                                                                (Language of the case: German)
                   (Language of the case: German)
                                                                         An action against the Office for Harmonisation in the Internal
An action against the Office for Harmonisation in the Internal           Market (Trade Marks and Designs) was brought before the
Market (Trade Marks and Designs) was brought before the                  Court of First Instance of the European Communities on
Court of First Instance of the European Communities on                   24 November 2000 by Daimler Chrysler AG, of Stuttgart
24 November 2000 by Daimler Chrysler AG, Stuttgart,                      (Germany), represented by Stefan Völker, Rechtsanwalt, of
Germany, represented by Stefan Völker of Gleiss Lutz Hootz               Messrs Gleiss Lutz Hootz Hirsch, Rechtsanwälte, Stuttgart,
Hirsch, Stuttgart, Germany.                                              Germany.


title: Case T-314/07: Order of the Court of First Instance of 1 April 2008 — Simsalagrimm Filmproduktion v Commission of the European Communities and Education, Audiovisual and Culture Executive Agency (EACEA)

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/37

         Order of the Court of First Instance of 1 April 2008 — Simsalagrimm Filmproduktion v Commission of the European Communities and Education, Audiovisual and Culture Executive Agency (EACEA)
   (Case T-314/07) (1)

   (2008/C 128/79)

      Language of the case: German

   The President of the Court of First Instance (Eighth Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 235, 6.10.2007.


title: Case C-36/07: Order of the President of the Court of 28 August 2007 — Commission of the European Communities v Italian Republic

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/33

         Order of the President of the Court of 28 August 2007 — Commission of the European Communities v Italian Republic
   (Case C-36/07) (1)

   (2007/C 297/59)

      Language of the case: Italian

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

      (1)  OJ C 82, 14.4.2007.


title: Case T-79/07: Action brought on 9 March 2007 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS)

text:
               28.4.2007

               EN

               Official Journal of the European Union

               C 95/55

         Action brought on 9 March 2007 — SHS Polar Sistemas Informáticos v OHIM — Polaris Software Lab (POLARIS)
   (Case T-79/07)
   (2007/C 95/110)
   Language in which the application was lodged: English
   Parties

      Applicant: SHS Polar Sistemas Informáticos, SL (Madrid, Spain) (represented by: C. Hernández Hernández, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Polaris Software Lab Ltd (Chennai, India)
   Form of order sought

               —

               That the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market dated 8 January 2007 in Case R 658/2006-2 be annulled;

               —

               that OHIM bears its own cost and pays those incurred by the applicant.

         Pleas in law and main arguments

      Applicant for the Community trade mark: Polaris Software Lab Ltd

      Community trade mark concerned: The figurative mark ‘POLARIS ’for goods and services in classes 9 and 42 — application No 3 267 713

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited: The Community word mark ‘POLAR ’for goods and services in classes 9, 38 and 42

      Decision of the Opposition Division: Opposition upheld for all the contested goods in class 9

      Decision of the Board of Appeal: Annulment of the Opposition Division's decision

      Pleas in law: Violation of Article 8(1)(b) of Council Regulation No 40/94 as i) the earlier trade mark can be applied to software destined to a non-specialist consumer, which could give rise to a confusion, ii) the small visual and phonetic differences between the two conflicting trade marks do not suffice to avoid a likelihood of confusion and iii) both marks are connected to the same meaning.


title: Case C-511/03: Reference for a preliminary ruling by the Hoge Raad der Nederlanden by order of that Court of 5 December 2003 in the case of the State of the Netherlands (Ministry of Agriculture, Nature Management and Fisheries) against 1. Ten Kate Holding Musselkanaal BV, 2. Ten Kate Europrodukten BV, and 3. Ten Kate Produktie Maatschappĳ BV

text:
6.3.2004               EN                        Official Journal of the European Union                                                 C 59/3
1.   The appeal is dismissed.                                            3.     Must Article 1(2) of Decision 94/381/EC, read as far as
                                                                                necessary in conjunction with the provisions of Article 17
2.   Mr Martinez is ordered to pay the costs of the present                     of Directive 90/425/EEC and Article 17 of Directive 89/
     proceedings.                                                               662/EEC, be interpreted as giving rise to an obligation for
                                                                                the Commission or the Council to grant an authorisation
3.   Mr Martinez is also ordered to pay the Parliament’s costs in               as referred to therein if the system which the requesting
     connection with the application for interim measures in Case               Member State applies or intends to apply is in fact suitable
     C-488/01 P-R.                                                              for distinguishing between protein from ruminant and
                                                                                non-ruminant species?
(1) OJ C 84 of 6.4.2002.                                                 4.     To what extent does the answer to Question 3 entail a
                                                                                restriction of the right, or of the State’s obligation referred
                                                                                to in Question 1, to challenge a failure to grant an
                                                                                authorisation such as that at issue in this case under
                                                                                Article 175 of the EC Treaty (Article 232 EC), or to
                                                                                challenge a refusal to grant such an authorisation under
                                                                                Article 173 of the EC Treaty (Article 230 EC)?
Reference for a preliminary ruling by the Hoge Raad der                         (Question 3 is relevant whether the question referred to
Nederlanden by order of that Court of 5 December 2003                           in Question 1 must be answered according to Netherlands
in the case of the State of the Netherlands (Ministry of                        national law or whether that answer must be determined
Agriculture, Nature Management and Fisheries) against                           according to Community law, in the latter case unless the
1. Ten Kate Holding Musselkanaal BV, 2. Ten Kate                                answer to Question 2(a) is in the negative. Question 4 is
Europrodukten BV, and 3. Ten Kate Produktie Maatschap-                          relevant only in the light of an answer to Question 2(b).)
                              pij BV
                         (Case C-511/03)
                          (2004/C 59/04)
                                                                         Reference for a preliminary ruling by the Finanzgericht
                                                                         Hamburg by order of that Court of 12 November 2003 in
Reference has been made to the Court of Justice of the                   the case of Eichsfelder Schlachtbetrieb GmbH against
European Communities by order of the Hoge Raad der                                          Hauptzollamt Hamburg-Jonas
Nederlanden of 5 December 2003, received at the Court
Registry on 8 December 2003, for a preliminary ruling in the                                         (Case C-515/03)
case of the State of the Netherlands (Ministry of Agriculture,
Nature Management and Fisheries) against 1. Ten Kate Holding
Musselkanaal BV, 2. Ten Kate Europrodukten BV, and 3. Ten                                             (2004/C 59/05)
Kate Produktie Maatschappij BV on the following questions:
1.   Must the question whether, in a case such as this, the              Reference has been made to the Court of Justice of the
     State has an obligation towards a citizen who has an                European Communities by order of the Finanzgericht Ham-
     interest in it, such as Ten Kate, to make use of the legal          burg (Hamburg Finance Court) of 12 November 2003, received
     remedies available to it under Article 175 of the EC                at the Court Registry on 9 December 2003, for a preliminary
     Treaty (Article 232 EC) or Article 173 of the EC Treaty             ruling in the case of Eichsfelder Schlachtbetrieb GmbH against
     (Article 230 EC) and, in the event of failure to comply             Hauptzollamt Hamburg-Jonas on the following question:
     with such an obligation, to pay compensation for the
     damage sustained as a consequence by the citizen con-
     cerned, be answered by reference to rules of Netherlands            Is Article 17(3) of Regulation (EEC) No 3665/87 (1) as amended
     national law or by reference to rules of Community law?             by Regulation (EC) No 1384/95 (2) to be interpreted as
                                                                         meaning that a product is considered to have been imported
2.   If the question referred to in Question 1 must be answered          if, after its release for free circulation in a non-member country,
     wholly or partly by reference to rules of Community law:            it undergoes substantial processing or working within the
                                                                         meaning of Article 24 of Regulation (EC) No 2913/92 (3) and
     (a)   Are there circumstances in which Community law                then is brought back into the Community upon drawback and
           can entail an obligation and liability as referred to in      payment of the normal import duties?
           that question?
     (b) If the answer to Question 2(a) is in the affirmative,           (1) OJ L 351, p. 1.
                                                                         (2) OJ L 134, p. 14.
           which rules of Community law must be used as the
                                                                         (3) OJ L 302, p. 1.
           criterion when answering the question referred to
           in Question 1 in a specific case such as this?


               20.3.2014

               EN

               Official Journal of the European Union

               C 81/11

         Request for an Advisory Opinion from the EFTA Court by Verwaltungsgerichtshof, Fürstentum Liechtenstein dated 21 October 2013 in the case of the Hellenic Capital Market Commission
   (Case E-23/13)
   2014/C 81/10
   A request has been made to the EFTA Court by a letter dated 21 October 2013 from Verwaltungsgerichtshof, Fürstentum Liechtenstein (the Administrative Court of the Principality of Liechtenstein), which was received at the Court Registry on 25 October 2013, for an Advisory Opinion in the case of the Hellenic Capital Market Commission, on the following question:
   Must an authority making a request to the competent authority of another Member State in accordance with Article 16 of Directive 2003/6/EC set out in its request the facts that give rise to the suspicion that the prohibition on insider dealing and market manipulation has been infringed?


title: Judgment of the Court (Sixth Chamber) of 26 November 2002 in Case C-202/01: Commission of the European Communities v French Republic (Failure by a Member State to fulfil its obligations — Directive 79/409/EEC — Conservation of wild birds — Classification as special protection areas — Plaine des Maures)

text:
11.1.2003                  EN                      Official Journal of the European Communities                                                  C 7/5
Robelco NV and Robeco Groep NV on the interpretation                          of public policy, public security or public health (OJ, English
of Article 5(5) of First Council Directive 89/104/EEC of                      Special Edition 1963-1964, p. 117), the Court, composed of:
21 December 1988 to approximate the laws of the Member                        G.C. Rodríguez Iglesias, President, J.-P. Puissochet, M. Wathelet
States relating to trade marks (OJ 1989 L 40, p. 1), the Court                and R. Schintgen (Presidents of Chambers), C. Gulmann,
(Sixth Chamber), composed of: R. Schintgen, President of the                  D.A.O. Edward, A. La Pergola, P. Jann (Rapporteur), V. Skouris,
Second Chamber, acting for the President of the Sixth Chamb-                  F. Macken, N. Colneric, S. von Bahr and J.N. Cunha Rodrigues,
er, V. Skouris, F. Macken (Rapporteur), N. Colneric and                       Judges; A. Tizzano, Advocate General; M.-F. Contet, Adminis-
J.N. Cunha Rodrigues, Judges; D. Ruiz-Jarabo Colomer, Advo-                   trator, for the Registrar, has given a judgment on 26 November
cate General; L. Hewlett, Principal Administrator, for the                    2002, in which it has ruled:
Registrar, has given a judgment on 21 November 2002, in
which it has ruled:                                                           Neither Article 48 of the EC Treaty (now, after amendment,
                                                                              Article 39 EC) nor the provisions of secondary legislation which
Article 5(5) of First Council Directive 89/104/EEC of 21 December             implement the freedom of movement for workers preclude a Member
1988 to approximate the laws of the Member States relating to                 State from imposing, in relation to a migrant worker who is a
trade marks must be interpreted as meaning that a Member State                national of another Member State, administrative police measures
may, if it sees fit, and subject to such conditions as it may determine,      limiting that worker’s right of residence to a part of the national
protect a trade mark against use of a sign other than for the purposes        territory, provided
of distinguishing goods or services, where use of that sign without
due cause takes unfair advantage of, or is detrimental to, the                —      that such action is justified by reasons of public order or public
distinctive character or the repute of the trade mark.                               security based on his individual conduct;
                                                                              —      that, by reason of their seriousness, those reasons could
( 1) OJ C 79 of 10.3.2001.                                                           otherwise give rise only to a measure prohibiting him from
                                                                                residing in, or banishing him from, the whole of the national
                                                                                territory; and
                                                                              —      that the conduct which the Member State concerned wishes to
                                                                                prevent gives rise, in the case of its own nationals, to punitive
                                                                                measures or other genuine and effective measures designed to
                                                                                combat it.
                   JUDGMENT OF THE COURT
                                                                              (1 ) OJ C 108 of 7.4.2001.
                         of 26 November 2002
in Case C-100/01 (Reference for a preliminary ruling from
the Conseil d’État): Ministre de l’Intérieur v Aitor Oteiza
                               Olazabal ( 1)
                                                                                JUDGMENT OF THE COURT
(Freedom of movement for persons — Restrictions — Public
policy (ordre public) — Police measures limiting the right of                                              (Sixth Chamber)
residence of a national of another Member State to part of
                          the national territory)                                                       of 26 November 2002
                              (2003/C 7/08)                                   in Case C-202/01: Commission of the European Communi-
                                                                                ties v French Republic ( 1)
                       (Language of the case: French)                         (Failure by a Member State to fulfil its obligations —
                                                                              Directive 79/409/EEC — Conservation of wild birds —
(Provisional translation; the definitive translation will be published        Classification as special protection areas — Plaine des
                      in the European Court Reports)                                                            Maures)
                                                                                (2003/C 7/09)
In Case C-100/01: Reference to the Court under Article 234                                           (Language of the case: French)
EC by the Conseil d’État (France) for a preliminary ruling in
the proceedings pending before that court between Ministre
                                                                              (Provisional translation; the definitive translation will be published
de l’Intérieur and Aitor Oteiza Olazabal, on the interpretation
                                                                                in the European Court Reports)
of Articles 6, 8a and 48 of the EC Treaty (now, after
amendment, Articles 12 EC, 18 EC and 39 EC) and of Council
Directive 64/221/EEC of 25 February 1964 on the co-
ordination of special measures concerning the movement and                    In Case C-202/01, Commission of the European Communities
residence of foreign nationals which are justified on grounds                 (Agents: G. Valero Jordana and J. Adda) v French Republic
 ---pagebreak--- C 7/6                    EN                        Official Journal of the European Communities                                          11.1.2003
(Agents: G. de Bergues and D. Colas): Application for a                       (Agents: initially F. van de Craen, and, subsequently, A. Snoecx):
declaration that, by failing in sufficient measure to classify as             Application for a declaration that, by failing to adopt the laws,
special protection areas the territories most suitable for the                regulations and administrative provisions necessary to comply
conservation of the species of wild bird referred to in Annex I               with Council Directive 97/11/EC of 3 March 1997 amending
to Council Directive 79/409/EEC of 2 April 1979 on the                        Directive 85/337/EEC on the assessment of the effects of
conservation of wild birds (OJ 1979 L 103, p. 1), as amended                  certain public and private projects on the environment (OJ
by Commission Directive 97/49/EC of 29 July 1997 (OJ 1997                     1997 L 73, p. 5) or, alternatively, by failing to communicate
L 223, p. 9), and of migratory species, and, in particular, by                them to the Commission, the Kingdom of Belgium has failed
failing to classify a sufficiently large area of land on the Plaine           to fulfil its obligations under that directive, the Court (Sixth
des Maures (France) as a special protection area, the French                  Chamber), composed of: J.-P. Puissochet (Rapporteur), Presi-
Republic has failed to comply with its obligations under the                  dent of the Chamber, R. Schintgen, V. Skouris, F. Macken and
Directive and has failed to fulfil its obligations under the EC               J.N. Cunha Rodrigues, Judges; C. Stix-Hackl, Advocate General;
Treaty, the Court (Sixth Chamber), composed of:                               R. Grass, Registrar, has given a judgment on 19 November
J.-P. Puissochet, President of the Chamber, C. Gulmann (Rap-                  2002, in which it:
porteur), F. Macken, N. Colneric and J.N. Cunha Rodrigues,
Judges; S. Alber, Advocate General; R. Grass, Registrar, has                  1.    Declares that, by failing to bring into force within the
given a judgment on 26 November 2002, in which it:                                  period prescribed all the laws, regulations and administrative
                                                                                provisions necessary to comply with Council Directive 97/11/
1.    Declares that, by not in sufficient measure classifying as special            EC of 3 March 1997 amending Directive 85/337/EEC on the
      protection areas the territories most suitable for the conservation           assessment of the effects of certain public and private projects
      of the species of wild bird referred to in Annex I to Council                 on the environment, the Kingdom of Belgium has failed to fulfil
      Directive 79/409/EEC of 2 April 1979 on the conservation of                   its obligations under that directive.
      wild birds, as amended by Commission Directive 97/49/EC of
      29 July 1997, and of migratory species, and, in particular, by          2.    Orders the Kingdom of Belgium to pay the costs.
      not classifying a sufficiently large area of the Plaine des Maures
      (France) as a special protection area, the French Republic has
      failed to comply with its obligations under Article 4(1) and (2)        (1 ) OJ C 289 of 13.10.2001.
      of that directive;
2.    Orders the French Republic to pay the costs.
( 1) OJ C 212 of 28.7.2001.
                                                                                ORDER OF THE COURT
                                                                                (Fourth Chamber)
                                                                                of 5 November 2002
                  JUDGMENT OF THE COURT
                                                                              in Case C-204/01 (reference for a preliminary ruling from
                          (Sixth Chamber)                                     the Verwaltungsgerichtshof): Tilmann Klett v Bundes-
                                                                                ministerin für Bildung, Wissenschaft und Kultur (1)
                       of 19 November 2002
                                                                              (Article 104(3) of the Rules of Procedure — Freedom to
in Case C-319/01: Commission of the European Communi-                         provide services — Directives 78/686/EEC and 93/16/EEC
                  ties v Kingdom of Belgium (1)                               — Mutual recognition of diplomas, certificates and other
                                                                              evidence of formal qualifications — Access to training as a
(Failure by a Member State to fulfil its obligations —                        dental practitioner — Act of Accession of the Republic of
Assessment of the effects of certain projects on the environ-                                                Austria)
                   ment — Directive 97/11/EC)
                                                                                (2003/C 7/11)
                            (2003/C 7/10)
                                                                                (Language of the case: German)
                     (Language of the case: French)
                                                                              (Provisional translation; the definitive translation will be published
(Provisional translation; the definitive translation will be published                            in the European Court Reports)
                    in the European Court Reports)
                                                                              In Case C-204/01 P: reference to the Court under Article 234
In Case C-319/01, Commission of the European Communities                      EC from the Verwaltungsgerichtshof (Austria) for a preliminary
(Agents: G. zur Hausen and J. Adda) v Kingdom of Belgium                      ruling in the proceedings pending before that court between


title: Case T-454/05: Action brought on  20 December 2005  — Sumimoto Chemical Agro Europe and Philagro France v Commission

text:
               11.3.2006

               EN

               Official Journal of the European Union

               C 60/44

         Action brought on 20 December 2005 — Sumimoto Chemical Agro Europe and Philagro France v Commission
   (Case T-454/05)
   (2006/C 60/84)
   Language of the case: English
   Parties

      Applicants: Sumitomo Chemical Agro Europe SAS (Lyon, France) and Philagro France SAS (Lyon, France) [represented by: K. Van Maldegem, C. Mereu, lawyers]

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Order the annulment of Commission Decision D/430967; or, in the alternative,

               —

               order the defendant to comply with its obligations under Community law and propose the inclusion of procymidone in Annex I to the PPPD for all uses/crops, as requested by the applicants;

               —

               order the defendant to compensate the applicants in the provisional amount of 1 (one) Euro for damages suffered as a result of Commission Decision D/430967, or, in the alternative, as a result of the defendant's failure to comply with its obligations under Community law by failing to respond to the applicants, as well as any applicable interests, pending the exact calculation and determination of the exact amount;

               —

               order the defendant to pay all costs and expenses in these proceedings.

         Pleas in law and main arguments
   Council Directive 91/414 (1) concerning the placing of plant protection products on the market (known as the ‘plant protection products directive’ or ‘PPPD’) provides that Member States shall not authorise a product unless it is inscribed in Annex I of the Directive. The applicants have repeatedly contacted the Commission with a view to ensuring that procymidone, the active substance contained in their plant protection products, should be included in Annex I.
   By letter of the 20 October 2005, which constitutes the contested Decision, the Commission informed the first applicant that possible inclusion of procymidone in Annex I would, at most, cover the supported uses that have been the subject of EU evaluation; it further makes such inclusion conditional on the submission of a proposal for highly detailed conditions of use and risk mitigation measures.
   The applicants request the annulment of that Decision, criticizing the proposed limited authorisation of procymidone, which would lead to it being registered only for two crops, namely plums and cucumbers, as well as the requirement for highly detailed conditions of use. According to the applicant, these requirements violated the PPPD which only refers to broad use categories, such as insecticides, growth regulators or herbicides, leaving it to the Member States to assess use in relation to specific crops. In the same context the applicants allege that the requirement for detailed conditions is neither allowed under the PPPD nor scientifically justified.
   The applicants further submit that the contested Decision errs when it states that studies submitted after the fixed deadlines cannot be examined because, according to the applicants, all procymidone data were timely submitted. They also consider that the contested Decision violates Articles 95(3) and 152(1) EC by refusing to consider studies submitted in time and found satisfactory by the evaluators.
   The applicants also invoke violations of the PPPD, of Regulation 3600/92 (2), of the principles of sound administration, of subsidiarity and proportionality, of legitimate expectations and legal certainty, of the excellence and independence of scientific advice, of equal treatment and ‘estoppel’ and of the duty to state reasons.
   Should the court consider that the contested letter is not an act which can be challenged under Article 230(4) EC, the applicants submit that their action is still admissible under Article 232 EC against the Commission's failure to act upon their administrative complaint and formal request. In addition and independently of the actions for annulment and failure to act, the applicants claim compensation for damages suffered as a direct consequence of the contested letter.

      (1)  OJ L 230, 19/08/1991, p. 1.

      (2)  Commission Regulation (EEC) No 3600/92 of 11 December 1992 laying down the detailed rules for the implementation of the first stage of the programme of work referred to in Article 8 (2) of Council Directive 91/414/EEC concerning the placing of plant protection products on the market, OJ L 366, 15/12/1992, p. 10


title: Case T-235/05: Action brought on 20 June 2005 by Jan Siffert against the Court of Justice of the European Communities

text:
               20.8.2005

               EN

               Official Journal of the European Union

               C 205/31

         Action brought on 20 June 2005 by Jan Siffert against the Court of Justice of the European Communities
   (Case T-235/05)
   (2005/C 205/57)
   Language of the case: French
   An action against the Court of Justice of the European Communities was brought before the Court of First Instance of the European Communities on 20 June 2005 by Jan Siffert, residing in Brussels (Belgium), represented by Sébastien Orlandi, Xavier Martin, Albert Coolen and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               annul the decision to appoint the applicant an official of the European Communities, insofar as it determines his grade of recruitment in accordance with Article 12 of Annex XIII to the Staff Regulations;

               2.

               order the defendant to pay the costs.

         Pleas in law and main arguments
   The pleas and main arguments are identical to those raised in Case T-130/05 Albert-Bousquet and Others v Commission
       (1).

      (1)  OJ C 132, 28.5.2005, p. 31.


title: Case T-569/12: Order of the General Court of 16 July 2014  — Marouf v Council

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/25

         Order of the General Court of 16 July 2014 — Marouf v Council
   (Case T-569/12) (1)

   2014/C 329/38
   Language of the case: English
   The President of the Ninth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 63, 2.3.2013.


title: Case T-530/12 P: Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-41/10, Bermejo Garde v EESC

text:
               23.2.2013

               EN

               Official Journal of the European Union

               C 55/15

         Appeal brought on 5 December 2012 by Moises Bermejo Garde against the judgment of the Civil Service Tribunal of 25 September 2012 in Case F-41/10, Bermejo Garde v EESC
   (Case T-530/12 P)
   2013/C 55/28
   Language of the case: French

      Parties

      Appellant: Moises Bermejo Garde (Brussels, Belgium) (represented by L. Levi, lawyer)

      Other party to the proceedings: European Economic and Social Committee (EESC)

      Form of order sought by the appellant

   The appellant claims that the General Court should:

               —

               set aside the judgment of the Civil Service Tribunal of the European Union of 25 September 2012 in Case F-41/10;

               —

               consequently, uphold the appellant’s form of order sought at first instance and thus

                           —

                           annul Decision No 88/10 A of 3 March 2010 of the President of the EESC rejecting the application brought by the appellant on 7 December 2009 and deciding to reassign him;

                           —

                           annul the addition to Decision No 88/10 of 25 March 2010;

                           —

                           annul Decision No 133/10 A of 24 March 2010 terminating the appellant’s functions as head of unit of the legal service with immediate effect and reassigning him in his capacity as head of unit, together with his post, to another service from 6 April 2010;

                           —

                           annul Decision No 184/10 A of 13 April 2010 of the President of the EESC reassigning the applicant to the Directorate for Logistics, which took effect on 6 April 2010;

                           —

                           order the respondent to pay EUR 17 500 in damages;

                           —

                           order the respondent to pay all the costs;

               —

               order the respondent to pay all of the costs incurred at both instances.

      Grounds of appeal and main arguments

   In support of his action, the appellant raises five grounds of appeal. In the appellant’s view, the Civil Service Tribunal considered that he had suffered harm as a result of the communication of information to his hierarchy, in so far as he was deprived of his functions of head of the legal service, but that that harm did result from an infringement of Articles 12A and 22A of the Staff Regulations of Officials of the European Union.

               1.

               First ground of appeal: infringement of the notion of act adversely affecting an official and distortion of the file (concerning, essentially, paragraphs 44 to 64 of the judgment under appeal).

               2.

               Second ground of appeal: infringement of the principle of respect of the rights of the defence and an infringement of Article 41 of the Charter of Fundamental Rights of the European Union (concerning paragraphs 114 to 118 of the judgment under appeal).

               3.

               Third ground of appeal: infringement of Articles 12A, 22A and 86 of the Staff Regulation, and an infringement of the duty to state reasons and distortion of the file (concerning, essentially, paragraphs 133 et seq. of the judgment under appeal).

               4.

               Fourth ground of appeal: infringement of Article 86 of the Staff Regulations, of Annex IX thereto, of the general implementing provisions of Annex IX to the Staff Regulations and of the duty to respect the rights of the defence, distortion of the file, and an infringement of the duty to state reasons (concerning, essentially, paragraphs 75 to 78 of the judgment under appeal).

               5.

               Fifth ground of appeal: infringement of the rules relating to the competence of the institution which adopted the act and an infringement of Article 22A of the Staff Regulations and of Article 72 of the Rules of Procedure of the EESC (concerning paragraphs 70 and 71 of the judgment under appeal).


title: Case T-562/13: Action brought on 24 October 2013 — Isotis v European Commission

text:
               11.1.2014

               EN

               Official Journal of the European Union

               C 9/26

         Action brought on 24 October 2013 — Isotis v European Commission
   (Case T-562/13)
   2014/C 9/42
   Language of the case: Greek

      Parties

      Applicant: Information Society open to Impairments — ISOTIS (Athens, Greece) (represented by: S. Skliris, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the General Court should:

               —

               declare that the Commission, by seeking from the applicant the sum of EUR 47 197,93 which the Commission paid within the framework of the REACH 112 agreement No 238940, is in breach of the agreement in question;

               —

               declare that the applicant is under no obligation to repay the amount which the Commission paid;

               —

               declare that, in any event, the abovementioned request by the Commission, to the extent of the amount of EUR 13 821,12, is wholly unfounded;

               —

               declare that the general conditions of FP6 contracts are not applicable within the framework of the REACH 112 agreement No 238940 and that, consequently, the applicant is, under the agreement in question, in no way obliged to pay any amount of liquidated damages;

               —

               declare that the Commission, by indicating its intent to claim liquidated damages on the basis of the general conditions of FP6 contracts, is in breach of REACH 112 agreement No 238940;

               —

               order the Commission to pay the applicant’s costs.

      Pleas in law and main arguments

   In support of the action, which is based on (1) the arbitration clauses in the agreement in question and (2) on Belgian law, which governs the agreement in question, the applicant puts forward three arguments.

               1.

               The first argument is based on the Commission’s failure to respect the principles of good faith and fair dealing. Specifically, the applicant maintains that the Commission sought differing amounts, but failed to provide concrete and specific reasons for the creation of each claim, and that the Commission’s way of doing business is contrary to the provisions of the Charter of Fundamental Rights. Further, the applicant maintains that the Commission’s intention to make claims on the basis of the general conditions of a different type of contract (FP6) which differ from those which apply in the REACH 112 (CIP) agreement also reveals that the Commission’s conduct is contrary to accepted standards.

               2.

               The second argument is based on the infringement of the provisions of Article II.28, paragraphs 1 and 5, of the REACH 112 agreement No 238940. Specifically, the applicant maintains that the Commission made claims when there had been no prior audit procedure within the framework of the agreement in question and relied on general and indeterminate audit findings which do not relate to the REACH 112 agreement in question.

               3.

               The third argument, in the alternative, is that the making of the claim for repayment by the Commission was in bad faith and abusive.


title: Case C-563/12: Judgment of the Court (Fifth Chamber) of 19 December 2013 (request for a preliminary ruling from the Kúria — Hungary) — BDV Hungary Trading Kft, in liquidation v Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága (VAT — Directive 2006/112/EC — Article 146 — Exemptions on exportation — Article 131 — Conditions laid down by Member States — National legislation requiring that property intended to be exported leave the customs territory of the European Union within a fixed period of 90 days after supply)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/21

         Judgment of the Court (Fifth Chamber) of 19 December 2013 (request for a preliminary ruling from the Kúria — Hungary) — BDV Hungary Trading Kft, in liquidation v Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága
   (Case C-563/12) (1)

   (VAT - Directive 2006/112/EC - Article 146 - Exemptions on exportation - Article 131 - Conditions laid down by Member States - National legislation requiring that property intended to be exported leave the customs territory of the European Union within a fixed period of 90 days after supply)
   2014/C 52/35
   Language of the case: Hungarian

      Referring court

   Kúria

      Parties to the main proceedings

      Applicant: BDV Hungary Trading Kft, in liquidation

      Defendant: Nemzeti Adó- és Vámhivatal Közép-magyarországi Regionális Adó Főigazgatósága

      Re:

   Request for a preliminary ruling — Kúria — Interpretation of Article 15 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) and Articles 131, 146 and 273 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Exemptions on exportation — Company producing and selling tinned food which sells goods intended to be sold by the purchaser in third countries — National legislation making the right to exemption from VAT with respect to the sale of goods for export outside the European Union subject to the condition that the period between the sale and the date when the goods leave the national territory does not exceed 90 days.

      Operative part of the judgment

   Articles 146(1) and 131 of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax must be interpreted as precluding national legislation under which, in the context of a supply for export, goods intended to be exported from the European Union must have left the territory of the European Union within a fixed period of three months or 90 days following the date of supply, where merely exceeding that time-limit results in the definitive loss for the taxable person of the right to exemption in relation to that supply.

      (1)  OJ C 114, 20.4.2013.