title: Case C-218/12: Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Landgericht Saarbrücken — Germany) — Lokman Emrek v Vlado Sabranovic (Regulation (EC) No 44/2001 — Article 15(1)(c) — Jurisdiction over consumer contracts — Whether jurisdiction limited to distance contracts — Causal link between the commercial or professional activity directed to the Member State of the consumer’s domicile via an Internet site and the conclusion of the contract)

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/14

         Judgment of the Court (Third Chamber) of 17 October 2013 (request for a preliminary ruling from the Landgericht Saarbrücken — Germany) — Lokman Emrek v Vlado Sabranovic
   (Case C-218/12) (1)

   (Regulation (EC) No 44/2001 - Article 15(1)(c) - Jurisdiction over consumer contracts - Whether jurisdiction limited to distance contracts - Causal link between the commercial or professional activity directed to the Member State of the consumer’s domicile via an Internet site and the conclusion of the contract)
   2013/C 367/23
   Language of the case: German

      Referring court

   Landgericht Saarbrücken

      Parties to the main proceedings

      Applicant: Lokman Emrek

      Defendant: Vlado Sabranovic

      Re:

   Request for a preliminary ruling — Landgericht Saarbrücken — Interpretation of Article 15(1)(c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1) — Jurisdiction over consumer contracts — Situation in which a trader operates an internet site ‘directed’ towards the Member State in which the consumer is resident — Need for a causal link between that activity and the conclusion of the contract by the consumer — Possible restriction of jurisdiction over consumer contracts to contracts which have been concluded at a distance

      Operative part of the judgment

   Article 15(1)(c) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters must be interpreted as meaning that that it does not require the existence of a causal link between the means employed to direct the commercial or professional activity to the Member State of the consumer’s domicile. However, the existence of such a causal link constitutes evidence of the connection between the contract and such activity.

      (1)  OJ C 243, 11.8.2012.


title: Order of the Court of First Instance of 28 February 2005 in Case T-108/03 Elisabeth von Pezold v Commission of the European Communities (EAGGF — Forestry — Decision approving a rural development programming document — Action for annulment — Natural and legal persons — Measures of individual concern to them — Lack of competence — Inadmissibility)

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/21

      ORDER OF THE COURT OF FIRST INSTANCE

   of 28 February 2005
   in Case T-108/03 Elisabeth von Pezold v Commission of the European Communities (1)

   (EAGGF - Forestry - Decision approving a rural development programming document - Action for annulment - Natural and legal persons - Measures of individual concern to them - Lack of competence - Inadmissibility)
   (2005/C 155/41)
   Language of the case: German
   In Case T-108/03: Elisabeth von Pezold, resident in Pöls (Austria), represented by R. von Pezold, lawyer, against the Commission of the European Communities (Agent: G. Braun, with an address for service in Luxembourg) — action for partial annulment of the Commission's decision of 14 July 2000 approving the rural development programming document for the Republic of Austria for the period 2000-2006 — the Court of First Instance (Third Chamber), composed of M. Jaeger, President, V. Tiili and O. Czúcz, Judges; H. Jung, Registrar, has made an order on 28 February 2005, the operative part of which is as follows:

               1.

               The action is dismissed.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 171 of 19.7.2003.


title: Reference for a preliminary ruling from the Uudenmaan Lääninoikeus by order of that court of 30 May 1996 in the proceedings brought by Outokumpu Oy (Case C-213/96)

text:
 No C 247/8              EN                   Official Journal of the European Communities                                     24 . 8 . 96
 Pleas in law and main arguments adduced in support:                     Reference for a preliminary ruling from the
                                                                         Bundesverwaltungsgericht by order of that court of
 Pursuant to Article 189 of the Treaty, a directive is binding,          8 February 1996 in the administrative-law case of Gut
 as to the result to be achieved, upon each Member State to              Springenheide        GmbH          and       Rudolf Tusky       v.
 which it is addressed. According to established case-law,               Oberkreisdirektor      des      Kreises  Steinfurt  — Amt      für
that provision places Member States under an obligation to               Lebensmittelüberwachung,              Oberbundesanwalt     beim
 bring their legislation into conformity with directives within                      Bundesverwaltungsgericht, intervening
 the period prescribed therein .                                                                  ( Case C-2 10/96 )
                                                                                ( 96/C 247/ 15 )
 By not adopting within the prescribed period the laws,
regulations and administrative provisions necessary to                   Reference has been made to the Court of Justice
comply with Council Directive 76/207/EEC , concerning the
                                                                         of the European Communities by order of the
principle of equal treatment for men and women as regards                Bundesverwaltungsgericht ( Federal Administrative Court )
working conditions, and by maintaining in force within its
                                                                         — Third Chamber — of 8 February 1996 , which was
own legal system rules prohibiting night-work for women ,
                                                                         received at the Court Registry on 20 June 1 996 , for a
contrary to Article 5 of that Directive, the Italian Republic
                                                                         preliminary ruling in the case of Gut Springenheide GmbH
has failed to fulfil its obligations under Community law.
                                                                         and Rudolf Tusky v. Oberkreisdirektor des Kreises
                                                                         Steinfurt — Amt fur Lebensmitteliiberwachung ( Chief
(') O J No L 39 , 14 . 2 . 1976 , p . 40 .                               Administrative Officer of the Rural District of Steinfurt —
                                                                         Office for Supervision of Foodstuffs ), Chief Federal
                                                                         Prosecutor attached to the Bundesverwaltungsgericht,
                                                                         intervening, on the following questions :
                                                                         1 . For the purposes of making the requisite determination
                                                                             pursuant to Article 10 ( 2 ) ( e ) of Regulation ( EEC )
Action brought on 19 June 1996 by the Commission of the                      No 1 907/90 ( 1 ) whether statements designed to promote
  European Communities against the Kingdom of Belgium                        sales are likely to mislead the purchaser, is the actual
                          ( Case C-208/96 )                                  expectation of the consumers addressed to be
                                                                             determined or is the aforesaid provision based on the
                            ( 96/C 247/ 14 )
                                                                             criterion of an objectified concept of a purchaser which
                                                                             is to be the subject of a legal interpretation only ?
An action against the Kingdom of Belgium was brought
before the Court of Justice of the European Communities on              2.   In the event that the matter turns on consumers ' actual
 19 June 1996 by the Commission of the European                              expectations, the following questions arise :
Communities , represented by Hubert van Vliet, of its Legal                  ( a ) Is the view of the informed average consumer or
Service, acting as Agent, with an address for service in                           that of the casual consumer determinative ?
Luxembourg at the office of C. Gomez de la Cruz , of the
Legal Service of the Commission of the European                              ( b ) Can the proportion of consumers necessary in order
Communities, Wagner Centre , Kirchberg.                                            to establish a determinative expectation on the part
                                                                                of consumers be established in percentage terms ?
The applicant claims that the Court should :                             3.  In the event that the matter turns on the criterion of an
                                                                             objectified concept of a purchaser which can be the
 1 . declare that, by failing within the prescribed period                   subject of a legal interpretation only, the question arises
       to adopt the laws, regulations and administrative                     as to how that concept is to be determined .
       measures necessary in order to comply with Council
       Directive    92/ 119/EEC        of  17   December     1992        (') O J No L 173 , 1990 , p . 5 .
       introducing general Community measures for the
       control of certain animal diseases and specific measures
       relating to swine vesicular disease ('), the Kingdom of
       Belgium has failed to fulfil its obligations under the
       Treaty;
                                                                        Reference for a preliminary ruling from the Uudenmaan
2 . order the Kingdom of Belgium to pay the costs .                     Laaninoikeus by order of that court of 30 May 1996 in the
                                                                                proceedings brought by Outokumpu Oy
                                                                                ( Case C-213 /96 )
The pleas in law and main arguments are the same as those
in Case C-205/96 ( 2 ); the time-limit for transposition                                            ( 96/C 247/ 16 )
expired on 1 October 19 93 .
                                                                         Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Uudenmaan
(') OJ No I. 62 , 15 . 3 . 1993 , p. 69 .
( 2 ) See page 7 of the Official Journal .                               Laaninoikeus ( Uusimaa Provincial Administrative Court ) of
                                                                        30 May 1996 , which was received at the Court Registry on
                                                                        25 June 1996 , for a preliminary ruling in the proceedings
                                                                         brought by Outokumpu Oy on the following questions :
 ---pagebreak--- 24 . 8 . 96             EN                  Official Journal of the European Communities                                     No C 247/9
Under Finnish national legislation on the taxation of energy,          The applicant claims that the Court should :
excise duty on electricity is levied in Finland on electrical
energy produced there, the amount of the duty depending on             1 . declare that, by failing to establish or communicate the
the method of production of the electricity . On electricity                  programmes for the reduction of pollution of waters as
produced by nuclear power, the excise duty charged is a                       regards the substances referred to in List II in the Annex
basic duty of 1,5 p/kWh and an additional duty of 0,9                         to Directive 76/464/EEC on pollution caused by certain
p/kWh . On electricity produced by water power, the excise                    dangerous substances discharged into the aquatic
duty charged is only an additional duty of 0,4 p/kWh . On                     environment of the Community ( '), as required by
electricity produced by other methods, for example from                       Article 7 thereof, the Kingdom of Spain has failed to
coal, excise duty is charged on the basis of the amount of                    fulfil its obligations under that Directive;
input materials used to produce the electricity . On electrical
                                                                       2 . order the Kingdom of Spain to pay the costs .
energy produced by some methods, for example in a
generator with an output below two megavolt-amperes, no
excise duty at all is charged . On imported electricity, the           The pleas in law and main arguments adduced in support are
                                                                       the same as those in Case C-20 5/96 H.
excise duty charged, regardless of the method of production
of the electricity, is a basic duty of 1,3 p/kWh and an
                                                                       (') OJ No L 129 , 18 . 5 . 1976 , p. 23 .
additional duty of 0,9 p/kWh . The excise duty on electricity
                                                                       ( 2 ) See page 7 of this Official Journal .
is thus determined with respect to imported electricity on a
different basis from that applied to electricity produced in
Finland . The levying of excise duties determined on the basis
of the method of production of the energy is founded on
environmental grounds in the drafting history of the law .
The amount of duty chargeable on imported electricity is               References for preliminary rulings by the Tribunale di
not, however, determined on the basis of the method of                 Genova by order of that court of 15 May 1996 in the cases of
production of the electricity . The excise duty chargeable on          1 ) Carlo Bagnasco and Others v. Banca Popolare di Novara
imported electricity is higher than the lowest excise duty             Soc. coop, arl and 2 ) Carlo Bagnasco and Others v. Cassa di
chargeable on electricity produced in Finland, but lower                          Risparmio di Genova Imperia ( Carige ) SpA
than the highest excise duty chargeable on electricity                                    ( Case C-215 /96 and C-216/96 )
produced in Finland . The excise duty on imported electricity                                       96/C 247/ 18 )
is levied on the importer, whereas the excise duty relating to
electricity produced in Finland is levied on the electricity           References have been made to the Court of Justice of the
producer .                                                             European Communities by orders from the Tribunale di
                                                                       Genova ( District Court, Genoa ) of 15 May 1 996 , received at
1 . Is excise duty on electricity, determined for imported             the Court Registry on 21 June 1996 , for preliminary rulings
     electricity in the manner described above , to be regarded        in the cases of, first, Carlo Bagnasco and Others v. Banca
     as a charge having equivalent effect to a customs duty,           Popolare di Novara Soc . coop , arl and , second, Carlo
     within the meaning of Articles 9 and 12 of the EC                 Bagnasco and Others v. Cassa di Risparmio di Genova
     Treaty ?                                                          Imperia ( Carige ) SpA on the following questions :
2 . If it is not a charge having equivalent effect to a customs        1 . Whether the Norme Bancarie Uniforme ( Uniform Bank
     duty , is excise duty on electricity , determined for                    Rules ) laid down by the ABI (') for its members in
     imported electricity in the manner described above, to                   relation to contracts for the opening of current account
     be regarded as a tax which discriminates against imports                 credit facilities — since they are laid down and applied in
     from other Member States, within the meaning of                        ■ a uniform and binding manner by the banks belonging
     Article 95 of the EC Treaty ?                                            to the ABI — are compatible with Article 85 of the
                                                                              Treaty, where they make the credit facility subject to
                                                                              conditions for determination of an interest rate which is
                                                                              not previously determined and is not determinable by
                                                                              the customer, and they are liable adversely to affect trade
                                                                              between the Member States and have as their object and
                                                                              effect the prevention, restriction or distortion of
                                                                              competition within the Common Market;
Action brought on 25 June 1996 by the Commission of the
   European Communities against the Kingdom of Spain                   2 . What effects any finding of incompatibility in
                         ( Case C-2 14/96 )                                   accordance with point 1 may have on the corresponding
                           ( 96/C 247/ 17 )                                   clauses of the contracts for the opening of a current
                                                                              account credit facility , concluded ' downstream ' by
                                                                              member banks with individual customers, since , as a
An action against the Kingdom of Spain was brought before                     group , the banks belonging to the ABI may be regarded ,
the Court of Justice of the European Communities on                           within the meaning and for the purposes of Article 86 of
25 June 1996 by the Commission of the European                                the Treaty, as holding a joint dominant position in the
Communities, represented by Richard B. Wainwright and                         national credit market, whose specific application of the
Fernando Castillo de la Torre, with an address for service in                 rules in question ( in connection with determination of
Luxembourg at the office of Carlos Gomez de la Cruz,                          the interest payable on the loan ) is regarded as an
Wagner Centre .                                                               abuse;


title: Case C-503/99: Action brought on 22 December 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
C 79/10                EN                  Official Journal of the European Communities                                     18.3.2000
4. The contested judgment is also vitiated by a breach of             Action brought on 22 December 1999 by the Commission
    Community law by the Court of First Instance inasmuch             of the European Communities against the French Republic
    as it misapplied the principle of proportionality, misasses-
    sed the Commission’s power of discretionary power and
                                                                                (Case C-502/99)
    broke with precedent.
                                                                                (2000/C 79/19)
                                                                      An action against the French Republic was brought before the
                                                                      Court of Justice on 22 December 1999 by the Commission of
                                                                      the European Communities, represented by Christopher Van
                                                                      der Hauwaert, of its Legal Service, acting as Agent, with an
                                                                      address for service in Luxembourg at the office of Carlos
                                                                      Gómez de la Cruz, of its Legal Service, Wagner Centre,
Action brought on 22 December 1999 by the Commission                  Kirchberg.
of the European Communities against the French Republic
                                                                      The Commission of the European Communities claims that
                                                                      the Court should:
                         (Case C-501/99)
                                                                      — declare that, by failing to adopt within the prescribed
                                                                           time-limit the laws, regulations and administrative pro-
                          (2000/C 79/18)                                   visions necessary to comply with Council Directive
                                                                           97/61/EC of 20 October 1997 amending the Annex to
                                                                           Directive 91/492/EEC laying down the health conditions
An action against the French Republic was brought before the
                                                                           for the production and placing on the market of live
Court of Justice on 22 December 1999 by the Commission of
                                                                           bivalve molluscs (1), the French Republic has failed to
the European Communities, represented by Christopher Van
                                                                           comply with its obligations under the Treaty;
der Hauwaert, of its Legal Service, acting as Agent, with an
address for service in Luxembourg at the office of Carlos
Gómez de la Cruz, of its Legal Service, Wagner Centre,               — order the French Republic to pay the costs.
Kirchberg.
                                                                      Pleas in law and main arguments
The applicant claims that the Court should:
                                                                      The pleas in law and main arguments are analogous to those
— declare that, by failing to adopt within the prescribed             in Case C-495/99 (2); the period prescribed by Article 2 of
    time-limit the laws, regulations and administrative pro-          Directive 97/61/EC expired on 1 July 1998.
    visions necessary to comply with Council Directive
    95/69/EC laying down the conditions and arrangements
    for approving and registering certain establishments and          (1) OJ L 295 of 29.10.1997, p. 35.
    intermediaries operating in the animal feed sector and            (2) OJ C 63, 4.3.2000, p. 16.
    amending Directives 70/524/EEC, 74/63/EEC, 79/373/EEC
    and 82/471/EEC’(1), the French Republic has failed to
    comply with its obligations under the Treaty;
— order the French Republic to pay the costs.
                                                                      Action brought on 22 December 1999 by the Commission
Pleas in law and main arguments                                       of the European Communities against the Kingdom of
                                                                                Belgium
The pleas in law and main arguments are analogous to those                                     (Case C-503/99)
in Case C-495/99 (2); the period prescribed by Article 21 of
Directive 95/69/EC expired on 1 April 1998.
                                                                                (2000/C 79/20)
(1) OJ L 332 of 30.12.1995, p. 15.                                    An action against the Kingdom of Belgium was brought before
(2) OJ C 63, 4.3.2000, p. 16.                                         the Court of Justice on 22 December 1999 by the Commission
                                                                      of the European Communities, represented by Maria Patakia,
                                                                      of its Legal Service, acting as Agent, with an address for service
                                                                      in Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                      Wagner Centre, Kirchberg.
 ---pagebreak--- 18.3.2000              EN                    Official Journal of the European Communities                                        C 79/11
The Commission of the European Communities claims that                       and by failing to lay down precise, objective and permanent
the Court should:                                                            criteria for approval of, or opposition to, the operations
                                                                             referred to above, the Kingdom of Belgium has failed to
                                                                             comply with its obligations under Articles 43 and 56 EC
                                                                             (formerly Articles 52 and 73b of the EC Treaty);
(1) declare that, by maintaining in force
                                                                        (2) order the Kingdom of Belgium to pay the costs.
    — the provisions of the Royal Decree of 10 June 1994
        vesting in the State a ‘golden share’ in the Société
        Nationale de Transport par Canalisation S.A. (SNTC),            Pleas in law and main arguments
        to which the following special rights attach:
                                                                        National rules laying down general authorisation and veto
                                                                        procedures may create, even where they are applicable without
        (i) advance notice of any transfer, use as security or          distinction, obstacles to the right of establishment and to the
             change in the intended use of the company’s                free movement of capital, inasmuch as they may impede, or
             system of lines and conduits providing extensive           render less attractive, the exercise of the fundamental freedoms
             infrastructures which are used or are capable of           guaranteed by the EC Treaty. Consequently, the Belgian rules
             being used for the domestic conveyance of energy           referred to in the form of order sought cannot be held to
             products, must be given to the Minister responsible,       be compatible with Articles 56 EC and 43 EC (formerly
             who is entitled to oppose such operations if he            Articles 73b and 52 of the EC Treaty) unless they fall within
             considers that they adversely affect the national          the exceptions referred to in Articles 46 and 58 EC or
             interest in the energy field;                              are justified by overriding public-interest considerations and
                                                                        coupled with criteria which are objective and permanent and
                                                                        which have been publicly promulgated, in such a way as to
                                                                        restrict to an absolute minimum the discretion exercisable by
                                                                        the national authorities.
        (ii) the Minister may appoint two representatives of
             the Federal Government to the board of directors
             of the company. Those representatives may pro-
             pose to the Minister the annulment of any decision         Although the supply of natural gas constitutes a matter of
             of the board of directors which they regard as             public interest, and although Distrigaz continues to occupy a
             contrary to the guidelines for the country’s energy        semi-monopolistic position on the Belgian market, and whilst,
             policy, including the Government’s objectives con-         as regards the situation in respect of SNTC, the need to ensure
             cerning the country’s energy supply;                       the existence of infrastructures for the conveyance of energy
                                                                        products could also, in certain circumstances, fall within
                                                                        the ambit of ‘overriding public-interest reasons’, the various
                                                                        restrictions imposed are not the most appropriate means of
                                                                        ensuring supplies in Belgium. Moreover, the Belgian authorities
    — the provisions of the Royal Decree of 16 June 1994                have not explained why, although they have abolished the
        vesting in the State a ‘golden share’ in Distrigaz S.A.,        authorisation procedure regarding the holding of interests in
        to which the following special rights attach:                   the capital of the companies concerned in excess of the
                                                                        relevant ceilings, they have not abolished the State powers
                                                                        relating to the management of those undertakings. Lastly,
                                                                        Directive 98/30/EC provides a Community framework for the
        (i) advance notice of any transfer, use as security or          exercise of State powers with regard to the public-service
             change in the company’s strategic assets must be           obligations imposed on undertakings, with a view to making
             given to the Minister responsible, who is entitled         it possible to apply the tests of necessity and proportionality.
             to oppose such operations if he considers that they
             adversely affect the national interest in the energy
             field;                                                     By the same token, the obligation imposed by Belgian adminis-
                                                                        trative law requiring the Minister to give ‘adequate formal
                                                                        reasons’ for the exercise of special powers and the option
                                                                        given to any party claiming to have suffered damage to bring
        (ii) the Minister may appoint two representatives of            proceedings for suspension and annulment cannot make up
             the Federal Government to the board of directors           for the absence of objective, permanent and clear criteria.
             of the company. Those representatives may pro-
             pose to the Minister the annulment of any decision
             of the board of directors or of the management
             committee which they regard as contrary to the
             guidelines for the country’s energy policy,


title: Case C-292/02: Reference for a preliminary ruling by the Finanzgericht Düsseldorf by order of that Court of 6 August 2002 in the case of Meiland Azewĳn B.V. against Hauptzollamt Duisburg

text:
C 261/4               EN                     Official Journal of the European Communities                                      26.10.2002
Reference for a preliminary ruling by the Verwaltungs-                  4.    Is the following statement correct:
gerichtshof by order of that Court of 25 July 2002 in the
        appeal by Rethmann Photo Recycling GmbH                               Not all incineration with energy use constitutes recovery
                                                                              for the purposes of operation R1. Operation R1 does not
                                                                              relate just to the use of the heat released through
                        (Case C-291/02)                                       incineration but also requires use as a fuel. A fuel is
                                                                              characterised by the fact that it satisfies certain criteria
                                                                              relating to thermal value, concentration of pollutants and
                                                                              combustion rate and is sufficiently homogeneous with
                        (2002/C 261/06)                                       regard to those characteristics for the process of incin-
                                                                              eration to be able to be controlled. Waste which cannot
                                                                              meet those criteria — that is to say, which possesses
                                                                              insufficient thermal value, whose composition is so
                                                                              variable that incineration (in a conventional incinerator)
Reference has been made to the Court of Justice of the                        cannot be satisfactorily controlled or whose level of
European Communities by order of the Verwaltungsgerichts-                     pollutants is such that their incineration gives rise to
hof of 25 July 2002, received at the Court Registry on                        impermissible emissions — per se cannot be recovered in
12 August 2002, for a preliminary ruling in the appeal by                     accordance with R1.
Rethmann Photo Recycling GmbH on the following questions:
                                                                        (1 ) OJ L 030 [1993], p. 1.
1.   Do the provisions of Regulation (EEC) No 259/93 (1) on             (2 ) OJ L 194 [1975], p. 39.
     the supervision and control of shipments of waste within,
     into and out of the European Community and Council
     Directive 75/442/EEC ( 2) of 15 July 1975 on waste
     display, with respect to the question whether a planned
     shipment of waste is to be assigned to recovery operation
     R1 in Annex II B or disposal operation D10 in Annex
     II A to Directive 75/442, sufficient clarity and definiteness
     to allow the person concerned (private parties as well as
     Member States) to assess the respective legal conse-
     quences of their conduct, or are those provisions invalid          Reference for a preliminary ruling by the Finanzgericht
     because of a lack of certainty and the resulting unen-             Düsseldorf by order of that Court of 6 August 2002 in
     forceability?                                                      the case of Meiland Azewijn B.V. against Hauptzollamt
                                                                                Duisburg
2.   Is the sole criterion, in assigning a waste treatment
     measure to recovery operation R1 (use principally as a                                       (Case C-292/02)
     fuel or other means to generate energy) in Annex II B to
     Directive 75/442, that the waste is used entirely to
                                                                                (2002/C 261/07)
     generate energy (energy use) and the energy generated is
     also in fact used?
3.   Is it permissible for the competent authority of desti-
                                                                        Reference has been made to the Court of Justice of the
     nation to proceed on the basis of the following criteria in
                                                                        European Communities by order of the Finanzgericht Düssel-
     deciding whether a planned waste shipment is to be
                                                                        dorf (Finance Court, Düsseldorf) of 6 August 2002, received at
     assigned to recovery operation R1 or disposal operation
     D10:                                                               the Court Registry on 13 August 2002, for a preliminary
                                                                        ruling in the case of Meiland Azewijn B.V. against Hauptzoll-
                                                                        amt Duisburg (Principal Customs Office, Duisburg) on the
     (a)   Risk reduction                                               following questions:
                                                                        1.    Is Article 8a(1) of Directive 92/81/EEC ( 1) to be construed
     (b) Conservation of natural resources
                                                                              as quite simply exempting mineral oil intended to be used
                                                                              as motor fuel from excise duty in the Member State to
     (c)   Conservation of energy resources                                   which it is brought in a standard tank of a commercial
                                                                              motor vehicle after it has been released for consumption
                                                                              in another Member State?
     (d) Conservation of landfill space
                                                                        2.    If the answer to the first question should be in the
     (e)   Ecological appropriateness of the operation                        affirmative, is Article 8a(1) of Directive 92/81/EEC
                                                                              directly applicable in relation to the claimant having
                                                                              regard to the rule in Paragraph 19(2) of the Mineralöl-
     (f)   Economic appropriateness of the operation?                         steuergesetz (Law on Excise Duty on Mineral Oils)?
 ---pagebreak--- 26.10.2002             EN                   Official Journal of the European Communities                                     C 261/5
3.    Are the administrative and control procedures for the            Is the amount of aid also to be reduced under the second
      reduction in excise duty which is possible under                 indent of Article 10(2)(a) of Regulation (EEC) No 3887/92 (1)
      Article 8(2)(f) of Directive 92/81/EEC governed by               where the special premium for male bovine animals applied
      Article 8(8) of Directive 92/81/EEC without the appli-           for when this provision of Community law was in force cannot
      cation of a marker or by Article 1(1) of Directive 95/60/        for legal reasons be granted to the farmer but where in the
      EC ( 2)?                                                         words of Article 44(1) of Regulation (EC) No 2419/2001 (2),
                                                                       the farmer submitted factually correct information or can
                                                                       show otherwise that he was not at fault?
4.    If the third question should be answered to the effect that
      the Member States which exercise the power under
      Article 8(2)(f) of Directive 92/81/EEC are obliged, in
      an instance comparable to the present case, to grant             (1 ) OJ L 391, 31.12.1992, p. 36.
                                                                       (2 ) OJ L 327, 12.12.2001, p. 11.
      reductions in duty also in the form of a refund of excise
      duty, is a reduction in excise duty for agricultural works
      contrary to the freedom to provide services if the
      reduction is linked to a marking procedure under
      Article 1(1) of Directive 95/60/EC that is not applied in
      this context by other Member States, which on the
      contrary impose excise-duty penalties in the case of
      markings for which no provision is made under their
      legal systems?
                                                                       Action brought on 21 August 2002 by the Italian Republic
5.    If the answer to the fourth question should be in the               against the Commission of the European Communities
      affirmative, does the breach of the freedom to provide
      services mean that liability to pay duty is expunged, or
                                                                                (Case C-298/02)
      would the claimant, in order to achieve exemption from
      duty, be obliged to ask for unmarked mineral oil and
      apply for a refund of excise duty in the Member State in                                 (2002/C 261/09)
      which it obtains marked gas oil at a reduced rate of duty?
( 1) OJ L 316, 31.10.1992, p. 12.
( 2) OJ L 291, 6.12.1995, p. 46.                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
                                                                       Communities on 21 August 2002 by the Commission of the
                                                                       European Communities, represented by Umberto Leanza,
                                                                       acting as Agent, assisted by Maurizio Fiorilli, avvocato dello
                                                                       Stato.
                                                                       The applicant claims that the Court should:
Reference for a preliminary ruling by the Niedersächsi-                —     annul Commission decision No 2281 (1) of 26 June
sches Oberverwaltungsgericht by order of that Court of                       2002 in so far as it makes a financial correction of
1 August 2002 in the administrative-law case of Mrs Gisela                   EUR 12 253 816 in respect of account headings B1-
        Gerken against Amt für Agrarstruktur Verden                          1512-001 and B1-1512-004 so far as concerns Italy.
                         (Case C-295/02)
                                                                       Pleas in law and main arguments
                         (2002/C 261/08)
                                                                       Aid for peaches and pears intended for the production of fruit
                                                                       salad — financial correction
Reference has been made to the Court of Justice of the
European Communities by order of the Niedersächsisches
Oberverwaltungsgericht (Lower Saxony, Higher Administrat-              According to the Commission, during the 1995-96, 1996-
ive Court) of 1st August 2002, received at the Court Registry          97 and 1997-98 marketing years, aid was granted for a final
on 19 August 2002, for a preliminary ruling in the administrat-        product which did not conform to the definitions contained in
ive-law case of Mrs Gisela Gerken against Amt für Agrar-               Regulations (EEC) No 1558/91 (2) and (EC) No 504/97 (3). The
struktur (Office for Agriculture) Verden on the following              two regulations provided for the payment of aid for whole or
question:                                                              sliced peaches and pears provided that they had undergone


title: Case T-32/09 P: Order of the General Court of 28 October 2010 — Marcuccio v Commission (Appeal — Civil service — Officials — Pre-litigation procedure — Appeal clearly unfounded — Cross-appeal limited to costs)

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/41

         Order of the General Court of 28 October 2010 — Marcuccio v Commission
   (Case T-32/09 P) (1)

   (Appeal - Civil service - Officials - Pre-litigation procedure - Appeal clearly unfounded - Cross-appeal limited to costs)
   2010/C 346/82
   Language of the case: Italian

      Parties

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

      Other party to the proceedings: European Commission (represented by: J. Currall and C. Berardis-Kayser, Agents, and A. dal Ferro, lawyer)

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 4 November 2008 in Case F-18/07 Marcuccio v Commission, not published in the ECR, seeking the annulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed as clearly unfounded.

               2.

               The cross-appeal is dismissed as clearly inadmissible.

               3.

               Mr Luigi Marcuccio is ordered to bear, in addition to his own costs, the costs incurred by the Commission in the appeal.

               4.

               Each party is ordered to bear its own costs in the cross-appeal.

      (1)  OJ C 69,21.3.2009.


title: Case C-577/15 P: Judgment of the Court (First Chamber) of 14 December 2016 — SV Capital OÜ v European Banking Authority (EBA), European Commission (Appeal — Application to initiate an investigation into the Estonian and Finnish supervisory authorities — Decision of the European Banking Authority (EBA) — Board of Appeal decision of the European Supervisory Authorities — Regulation (EU) No 1093/2010 — Articles 17 and 60 — Board of Appeal — Period allowed for commencing proceedings — Excusable error)

text:
               13.2.2017

               EN

               Official Journal of the European Union

               C 46/7

         Judgment of the Court (First Chamber) of 14 December 2016 — SV Capital OÜ v European Banking Authority (EBA), European Commission
   (Case C-577/15 P) (1)

   ((Appeal - Application to initiate an investigation into the Estonian and Finnish supervisory authorities - Decision of the European Banking Authority (EBA) - Board of Appeal decision of the European Supervisory Authorities - Regulation (EU) No 1093/2010 - Articles 17 and 60 - Board of Appeal - Period allowed for commencing proceedings - Excusable error))
   (2017/C 046/09)
   Language of the case: English

      Parties

      Appellant: SV Capital OÜ (represented by: M. Greinoman, vandeadvokaat)

      Other parties to the proceedings: European Banking Authority (EBA) (represented by: J. Overett Somnier and Z. Giotaki, acting as Agents, and F. Tuytschaever, advocaat), European Commission (represented by: W. Mölls and K.-P. Wojcik, acting as Agents)

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders SV Capital OÜ to bear its own costs and, in addition, to pay the costs incurred by the European Banking Authority (EBA);

               3.

               Orders the European Commission to bear its own costs.

      (1)  OJ C 16, 18.1.2016.


title: Case T-210/00: Action brought on 10 August 2000 by Etablissements Biret et Cie against the Council of the European Union

text:
21.10.2000             EN                     Official Journal of the European Communities                                       C 302/31
      For the Bureau of the European Parliament now to apply             The pleas in law and main arguments are the same as those
      in respect of the applicant the ‘Rules’ of 16 December             put forward by Biret International in Case T-174/00.
      1998 is tantamount to an attempt to alter twelve years
      after their implementation the rules and conditions
      applicable to the competition on the basis of which the
      applicant was recruited to carry out (specifically) the
      duties of Head of the Information Service in Lisbon. By
      doing so, the principle of the non-retroactivity of laws
      has been breached.
                                                                         Action brought on 11 August 2000 by Nuove Industrie
                                                                         Molisane s.r.l. against the Commission of the European
—     Breaches the principle of legality
                                                                                Communities
      Adoption of rules with the scope of the ‘Rules on the
      implementation of the mobility policy’ amounts to a                                          (Case T-212/00)
      veritable amendment of the Staff Regulations which
      exceeds the powers of the Parliament to define and                                          (2000/C 302/73)
      implement its staff policy under the provisions of the
      Staff Regulations.
                                                                                (Language of the Case: Italian)
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
                                                                         European Communities on 11 August 2000 by Nuove Indus-
                                                                         trie Molisane s.r.l., represented by Ivo Van Bael, of the Brussels
                                                                         Bar, and Fabrizio Di Gianni, of the Rome Bar.
Action brought on 10 August 2000 by Etablissements
  Biret et Cie against the Council of the European Union                 The applicant company claims that the Court should:
                         (Case T-210/00)                                 —     Annul the contested decision in so far as the Commission
                                                                               applied the adjustment factor of 0,75 to the competition
                                                                               assessment criterion, instead of the proposed factor of 1;
                         (2000/C 302/72)
                                                                         —     Order the defendant to pay the costs of the proceedings;
                   (Language of the case: French)                        —     Adopt any other such measure as may appear appropriate
                                                                               on legal and equitable grounds.
An action against the Council of the European Union was
brought before the Court of First Instance of the European
                                                                         Pleas in law and main arguments
Communities on 10 August 2000 by Etablissements Biret et
Cie, established in Paris, represented by Stéphane Rodrigues,
of the Paris Bar.                                                        The applicant in the present case, which is a limited-liability
                                                                         company consisting of a single person, established in Sesto
                                                                         Campano, which is an assisted area for the purposes of
The applicant claims that the Court should:                              Article 87(3)(c) EC, challenges Commission Decision
                                                                         SG(2000)D/103923 of 30 May 2000 (State Aid No N 787/99)
—     establish the liability of the European Community in the           concerning a project for regional investment aid in favour of
      court-supervised liquidation of the applicant’s subsidiary,        the applicant, as defined in the Commission notice on the
      the company known as Biret International;                          multisectoral framework on regional aid for large investment
                                                                         projects.
—     order the Council of the European Union to pay to the
      applicant damages in the sum of FRF 70 630 850;
                                                                         The object of the subsidised project is to establish a plant for
                                                                         the production of clinker (the basic material used in the
—     order the Council of the European Union to pay all the             manufacture of water-activated binders), which the applicant
      costs.                                                             is at present lacking.
                                                                         The aid in question has been declared partially compatible
Pleas in law and main arguments
                                                                         with the common market. The applicant submits in this regard
                                                                         that the Commission’s decision to use, in the formula for
The applicant claims compensation for the loss and damage                determining the maximum allowable aid intensity, the figure
arising from the court-supervised liquidation of its subsidiary,         of 0,75 as the adjustment factor for the competition assess-
Biret International, which has been forced to cease trading as           ment criterion, and consequently to declare compatible only
a result of the prohibition of imports into the Community of             the amount of ITL 29 176,69 million, is vitiated on the
beef and veal, especially of American origin.                            following grounds:


title: Case T-667/16 P: Appeal brought on 19 September by Pieter De Meyer and others against the judgment of the Civil Service Tribunal of 20 July 2016 in Case F-113/15 Adriaen a.o. v Commission

text:
               28.11.2016

               EN

               Official Journal of the European Union

               C 441/20

      Appeal brought on 19 September by Pieter De Meyer and others against the judgment of the Civil Service Tribunal of 20 July 2016 in Case F-113/15 Adriaen a.o. v Commission
      (Case T-667/16 P)
      (2016/C 441/25)
      Language of the case: English

         Parties

         Appellants: Pieter De Meyer (Brussels, Belgium) and 8 others (represented by: R. Rata, lawyer)

         Other party to the proceedings: European Commission

         Form of order sought by the appellant

      The appellants claim that the Court should:

                  —

                  set aside the Judgment of 20 July 2016 of the European Union Civil Service Tribunal in Case F-113/15;

                  —

                  annul the decision of 14 November 2014 of the Appointing Authority of the European Commission, issued by means of the Administrative Notice No 41-2014, establishing the list of promoted officials under the promotion exercise of 2014 in so far as the names of the appellants are not included therein;

                  —

                  order the European Commission to bear its own costs and to pay the costs incurred by the appellants.

         Pleas in law and main arguments

      In support of the appeal, the appellant relies on three pleas in law.

                  1.

                  First plea in law, alleging errors of law in rejecting the applicants’ first plea as unfounded. The appellants argue that the Civil Service Tribunal committed four main errors with regards to their first plea in law:

                              —

                              first, the Tribunal established, in contravention to applicable case law, that it does not need to review the legality of the Appointing Authority’s actions if the Appointing Authority declares that it has satisfied its legal duties and obligations;

                              —

                              second, the Tribunal was erroneous in dismissing the Joint Monitoring Committee Report as evidence and failing to effectively consider the demonstrated incomparability found in the sources of information used by the Appointing Authority;

                              —

                              third, the Tribunal erroneously ignored — without justification — the existence of the argument and evidence put forward by the applicants regarding the mathematical evaluation of the Appointing Authority’s literary assessment methodology as well as the entire second branch of the applicants first plea in law;

                              —

                              fourth, the Tribunal was erroneous in its presumption that absence of an effective evaluation of comparative merits cannot give rise to annulment of a decision on promotion.

                  2.

                  Second plea in law, the appellants argue that the Civil Service Tribunal committed an error of law with regards to their second plea in law:

                              —

                              first by arbitrarily limiting the scope and applicability of Article 25 of the Staff Regulations as well as the applicants’ fundamental rights under Union law in a manner incompatible with the will of the Union legislature; and

                              —

                              second, by rejecting the applicants’ second plea as unfounded on manifestly erroneous grounds.

                  3.

                  Third plea in law, alleging a failure to conduct an impartial and effective judicial review, giving rise to a violation of the applicants’ right to an effective remedy, the appellants argue that:

                              —

                              first, the Judge-Rapporteur made prejudicial statements demonstrating subjective bias in the Preparatory Report which pre-emptively decided the outcome of the applicants’ pleas in law;

                              —

                              second, the President of the Tribunal failed to recuse the Judge and transfer the case to a different Chamber while admitting that the contested prejudicial statements were copied and pasted from a different case involving different applicants;

                              —

                              third, the Tribunal selectively ignored and dismissed crucial arguments and evidence without consideration or review. In conclusion, the appellants consider that their right to an effective remedy has been violated by the Tribunal due to its failure to conduct an impartial and effective judicial review.


title: Case C-126/15: Action brought on 12 March 2015 — European Commission v Portuguese Republic

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/16

         Action brought on 12 March 2015 — European Commission v Portuguese Republic
   (Case C-126/15)
   (2015/C 155/18)
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: G. Braga da Cruz and F. Tomat, acting as Agents)

      Defendant: Portuguese Republic

      Form of order sought

               —

               Declare that, by making packets of cigarettes on which duty has already been levied and which have been released for consumption in a particular year subject to a prohibition on marketing and sale to the public once the excessively short period laid down in Article 27 of Decree No 1295/2007 of the Ministry of Finance and Public Administration has expired, the Portuguese Republic has failed to comply with Articles 7, the first paragraph of Article 9 and Article 39(3) of Directive 2008/118/EC (1) concerning the general arrangements for excise duty, and with the principle of proportionality;

               —

               order Portuguese Republic to pay the costs.

      Pleas in law and main arguments

               1.

                     Articles 7 and 9 of Directive 2008/118 and the principle of proportionality

                           —

                           It is apparent from Article 7 of Directive 2008/118/EC (‘the Directive’) that excise duty on tobacco products becomes chargeable at the time of release for consumption and at the rate then in force. Article 9 of the Directive provides that the chargeability conditions and rate of excise duty to be applied are to be those in force on the date on which duty becomes chargeable. Once the products in question have been released for consumption, there is no provision in EU tax legislation which gives Member States the option of imposing on such products, having regard to the date on which they are released for consumption, excise duty in addition to the duty payable or of restricting the distribution of the products for fiscal reasons.

                           —

                           In Portugal, under Decree No 1295/2007 of the Ministry of Finance and Public Administration (‘the Decree’), cigarette packets bearing a stamp for a given financial year may be sold and marketed only until the end of the third month of the year following that corresponding to the year shown on the stamp, namely the year in which they were released for consumption. As a transitional measure, the Decree provided that the time-limit for sale was fixed at the end of May 2008 for cigarette packets bearing the 2007 stamp and at the end of April 2009 for products bearing the 2008 stamp.

                           —

                           The Commission therefore took the view that the Portuguese legislation in question infringes Article 7 and the first paragraph of Article 9 of the Directive, while not ruling out the possibility that that legislation may be justified on grounds relating to the public interest.

                           —

                           However, the Commission submits that the reasons put forward by Portugal during the administrative phase of the procedure to justify that legislation (the prevention of tax evasion and avoidance, the protection of public health, the fight against illicit trade in tobacco and ensuring the receipt of tax revenue) are not acceptable as the principle of proportionality is infringed.

               2.

                     Article 39(3) of Directive 2008/118/EC and the principle of proportionality

                           —

                           Article 39(3) of the Directive establishes that Member States are to ensure that tax markings do not create obstacles to the free movement of excise goods. The prohibition introduced by Portugal has created such obstacles by providing that cigarette packets bearing a stamp for a given financial year may be sold and marketed only until the end of the third month of the year following that corresponding to the year shown on the stamp. The fear of importers that they will be unable to offload existing stocks which cannot be sold if the rate of the duty is altered may deter them from making their normal purchases, especially from other Member States, thereby affecting trade to extent greater than necessary, in order to combat, for example, an excessive rise in consumption before the excise duty is increased.

                           —

                           The Commission therefore takes the view that the prohibition on sales and marketing resulting from the Decree creates obstacles to the free movement of goods within the meaning of Article 39(3) of the Directive and goes beyond what is necessary to prevent evasion, avoidance or abuse. As a consequence, the prohibition is also at odds with Article 39(3) of the Directive and with the principle of proportionality.

      (1)  Council Directive 2008/118/EC of 16 December 2008 concerning the general arrangements for excise duty and repealing Directive 92/12/EEC (OJ 2008 L 9, p. 12).


title: Case T-261/07: Action brought on 13 July 2007 — Commission v Banca di Roma

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/52

         Action brought on 13 July 2007 — Commission v Banca di Roma
   (Case T-261/07)
   (2007/C 211/99)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: A.Colabianchi, lawyer, and F. Amato and M. Wilderspin, Agents)

      Defendant: Banca di Roma SpA
   Form of order sought

               —

               Order the Banca di Roma SpA, established in Italy at Viale Umberto Tupini 180, Rome (00144), in the person of its present legal representative, to execute the Bank guarantee of 28.10.1989 in favour of the Commission of the European Communities;

               —

               Order the Banca di Roma SpA, established in Italy at Viale Umberto Tupini 180, Rome (00144), in the person of its present legal representative, to pay to the Commission of the European Communities, established in Belgium at Rue de la Loi 200, Brussels (1039), the sum of EUR 412 607,41, together with interest of EUR 94,37 per day running from 30 December 2006 until payment in full, or such other sum as the Court may decide;

               —

               Order the Banca di Roma SpA, established in Italy at Viale Umberto Tupini 180, Rome (00144), in the person of its present legal representative, to pay all of the costs of the present proceedings including those of the Commission.

         Pleas in law and main arguments
   This action is brought under Article 238 EC on the basis of the arbitration clause contained in the guarantee of 28 October 1989 issued by the Banco di Roma (now named Banca di Roma) in favour of the Commission.
   By Decision C(89) 1241 of 2 August 1989 (1) the Commission imposed a fine on fourteen producers of welded steel mesh, one of whom was Ferriere Nord SpA, for having taken part in agreements and concerted practices which infringed Article 85(1) EC (now Article 81(1) EC); the fine imposed on Ferriere Nord SpA was ECU 320 000.
   Under Article 4 of that decision Ferriere Nord SpA had to pay the fine within three months of the date of notification of the decision, save that Ferriere Nord SpA was permitted to provide a bank guarantee covering the entire sum due, that is to say, principal and interest.
   By registered post of 30 October 1989, received on 7 November 1989, Ferriere Nord sent to the Commission a letter dated 26 October 1989 whereby the Udine (Italy) branch of the Banco di Roma (now Banca di Roma) declared to the Commission that it stood as guarantor of payment by Ferriere Nord both of the fine of ECU 320 000 and of interest, calculated to run from 15 November 1989 until the date of effective payment.
   In Case T-153/04 (2), the Court of First Instance held, by judgment of 27 September 2006, that the power of the Commission to enforce the Welded steel mesh decision was time-barred, in accordance with Article 4(1) of Regulation No 2988/74 (paragraphs 53 and 58 of the judgment).
   Nonetheless, in the opinion of the applicant, that judgment has no effect on the guarantee issued by the Banca di Roma, since, by virtue of the autonomy of that guarantee, within the meaning of Italian law (which is the law applicable to the facts of the case), the Banca di Roma is obliged to execute the guarantee upon mere request by the Commission, and no objection which may be raised by Ferrier Nord can justify refusal to execute.

      (1)  OJ 1989 L 260, p. 1.

      (2)  Not yet published in ECR.


title: Case T-303/04: Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/40

         Action brought on 29 July 2004 by European Dynamics SA against the Commission of the European Communities
   (Case T-303/04)
   (2004/C 262/77)
   Language of the case: English
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 29 July 2004 by European Dynamics SA, Athens, Greece, represented by Mr S. Pappas, lawyer.
   The applicant claims that the Court should:

               —

               annul the Commission's Contract Notice 2003/S249-221337 ESP-DIMA;

               —

               annul the Commission's call for tenderers PO/2003/192 (ESP-DIMA);

               —

               annul the Commission's Decision of 4 June 2004 ranking the offer of European Dynamic's consortium only second after the first successful tenderer;

               —

               annul the Commission's Decision of 14 July 2004 rejecting the applicant's appeals against the award of the tender;

               —

               order the Commission to pay European Dynamic's legal and other fees and expenses incurred in connexion with this application.

         Pleas in law and main arguments:
   The applicant is part of a consortium that was the successful tenderer as service provider for ESP Lot 5, web applications. ESP Lot 4, Data/Information management applications, was awarded to another consortium.
   According to the applicant, the tender contested in the present application, ESP-DIMA, was based on the wrong assumption that the provision of services for data and information management constitutes a new market and that the use of ESP Lot 4 had exceeded all expectations. The applicant submits that the Commission has wrongly allocated work to ESP Lot 4 that, according to the applicant, actually fell within ESP Lot 5. The applicant states that, as a result, the Commission had to increase the budget forecast for ESP Lot 4 and issue a new tender ESP-DIMA while the budget used for ESP Lot 5 remained behind the provisions.
   The applicant furthermore submits that the Commission infringed an essential procedural requirement in that at least one member of the evaluation committee of the contested tender had a conflict of interest with the applicant.
   Finally, the applicant claims that its ranking as second successful tenderer for ESP-DIMA is not sufficiently justified. The applicant also submits that the Commission refused to disclose information regarding the evaluation report.


title: Case T-367/15: Judgment of the General Court of 5 April 2017 — Renfe-Operadora v EUIPO (AVE) (EU trade mark — Invalidity proceedings — EU figurative mark AVE — Partial invalidity — Appeal brought before the Board of Appeal in a language other than the language of the proceedings — Inadmissibility of the appeal before the Board of Appeal — Application for restitutio in integrum — Duty of due care)

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/23

         Judgment of the General Court of 5 April 2017 — Renfe-Operadora v EUIPO (AVE)
   (Case T-367/15) (1)

   ((EU trade mark - Invalidity proceedings - EU figurative mark AVE - Partial invalidity - Appeal brought before the Board of Appeal in a language other than the language of the proceedings - Inadmissibility of the appeal before the Board of Appeal - Application for restitutio in integrum - Duty of due care))
   (2017/C 161/32)
   Language of the case: Spanish

      Parties

      Applicant: Renfe-Operadora, Entidad Pública Empresarial (Madrid, Spain) (represented by: J.-B. Devaureix and M.I. Hernández Sandoval, lawyers)

      Defendant: European Union Intellectual Property Office (represented by: S. Palmero Cabezas, acting as Agent)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 24 April 2015 (Case R 712/2014-5), relating to an application for restitutio in integrum.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Renfe-Operadora, Entidad Pública Empresarial, to pay the costs.

      (1)  OJ C 346, 19.10.2015.


title: JUDGMENT OF THE COURT of 5 March 1998 in Case C-160/96 (reference for a preliminary ruling from the Sozialgericht Karlsruhe): Manfred Molenaar, Barbara Fath-Molenaar v. Allgemeine Ortskrankenkasse Baden-Württemberg (Freedom of movement for workers - Benefits designed to cover the risk of reliance on care)

text:
2.5.98               EN                   Official Journal of the European Communities                                       C 137/1
                                                                  I
                                                            (Information)
                                              COURT OF JUSTICE
                                                        COURT OF JUSTICE
               JUDGMENT OF THE COURT                                  2. orders Inpesca to pay the costs;
                      (Second Chamber)
                                                                      3. orders Pevasa to bear its own costs.
                       of 5 March 1998
                                                                      (1) OJ C 333, 9.12.1995.
in Joined Cases C-199/94 P and C-200/94 P REV:
CompanÄia Internacional de Pesca y Derivados SA
 (Inpesca) v. Commission of the European Communities (1)
(Revision of a judgment Ð New and decisive factor Ð
                        Inadmissibility)
                                                                                JUDGMENT OF THE COURT
                         (98/C 137/01)
                                                                                of 5 March 1998
                                                                      in Case C-160/96 (reference for a preliminary ruling from
               (Language of the case: Spanish)
                                                                      the Sozialgericht Karlsruhe): Manfred Molenaar, Barbara
                                                                      Fath-Molenaar v. Allgemeine Ortskrankenkasse Baden-
  (Provisional translation; the definitive translation will be                               Württemberg (1)
         published in the European Court Reports)                     (Freedom of movement for workers Ð Benefits designed
                                                                                to cover the risk of reliance on care)
In Joined Cases C-199/94 P and C-200/94 P REV:                                                (98/C 137/02)
CompanÄia Internacional de Pesca y Derivados SA
(Inpesca), a company incorporated under Spanish law,                                 (Language of the case: German)
established in Bermeo (Spain), represented by Maria Iciar
Angulo Fuertes, of the Vizcaya Bar, with an address for                 (Provisional translation; the definitive translation will be
service in Luxembourg at the Chambers of Ernest Arendt,                        published in the European Court Reports)
8-10 rue Mathias Hardt Ð application for revision of the
order of the Court of Justice of 26 October 1995 in Joined            In Case C-160/96: reference to the Court pursuant to
Cases C-199/94 P and C-200/94 P Pevasa and Inpesca v.                 Article 177 of the EC Treaty from the Sozialgericht (Social
Commission [1995] ECR I-3709, the other parties to the                Court), Karlsruhe, Germany, for a preliminary ruling in
proceedings being: Commission of the European                         the proceedings pending before that court between
Communities (Agents: Francisco Santaolalla Gadea and                  Manfred Molenaar,           Barbara Fath-Molenaar and
JoseÂ Luis Iglesias Buhigues), and Pesqueria Vasco-                   Allgemeine Ortskrankenkasse Baden-Württemberg Ð on
MontanÄesa SA (Pevasa), a company incorporated under                  the interpretation of Articles 6 and 48(2) of the EC Treaty
Spanish law, established in Bermeo (Spain), represented by            Ð the Court, composed of: G. C. Rodríguez Iglesias,
Maria Iciar Angulo Fuertes, of the Vizcaya Bar, with an               President, C. Gulmann, H. Ragnemalm, M. Wathelet and
address for service in Luxembourg at the Chambers of                  R. Schintgen (Presidents of Chambers), G. F. Mancini, J. C.
Ernest Arendt, 8-10 rue Mathias Hardt Ð the Court                     Moitinho de Almeida, P. J. G. Kapteyn, J. L. Murray,
(Second Chamber), composed of: R. Schintgen, President                D. A. O. Edward, J.-P. Puissochet (Rapporteur), G.
of the Chamber, G. F. Mancini (Rapporteur) and G.                     Hirsch, P. Jann, L. Sevón and K. M. Ioannou, Judges; G.
Hirsch, Judges; S. Alber, Advocate-General; R. Grass,                 Cosmas, Advocate-General; H. von Holstein, Deputy
Registrar, has given a judgment on 5 March 1998, in                   Registrar, for the Registrar, has given a judgment on
which it:                                                             5 March 1998, in which it has ruled:
                                                                      Articles 6 and 48(2) of the EC Treaty do not preclude a
1. dismisses the application for revision as inadmissible;            Member State from requiring persons working in its
 ---pagebreak--- C 137/2               EN                  Official Journal of the European Communities                                       2.5.98
territory but residing in another Member State to                    1. Article 73 of Council Regulation (EEC) No 1408/71
contribute to a social security scheme covering the risk of               of 14 June 1971 on the application of social security
reliance on care, although Articles 19(1), 25(1) and 28(1)                schemes to employed persons, to self-employed
of Council Regulation (EEC) No 1408/71 of 14 June                         persons and to members of their families moving
1971 on the application of social security schemes to                     within the Community, as amended and updated by
employed persons, to self-employed persons and to                         Regulation (EEC) No 2001/83 (4), as amended by
members of their families moving within the Community,                    Regulation (EEC) No 3427/89, then by Regulation
as amended and updated by Regulation (EEC) No 2001/                       (EEC) No 1247/92, read in conjunction with Point
83, do prevent entitlement to an allowance such as the                    I.C of Annex I to the same Regulation, is to be
care allowance, which constitutes a sickness benefit in                   interpreted, for the purpose of payment of child
cash, from being subject to the condition that the insured                allowance under German legislation, as not applying
person resides in the territory of the Member State where                 to a national of that Member State who receives,
he is insured.                                                            under its legislation, an old-age benefit as a retired
                                                                          civil servant, where that person has worked only in
                                                                          the Member State of which he is a national and his
(1) OJ C 197, 6.7.1996.
                                                                          dependent child has moved within the Community
                                                                          with his former spouse.
                                                                     2. Article 77(2)(a) of Regulation (EEC) No 1408/71, as
                                                                          amended, is to be interpreted as not covering the
                                                                          situation of a person who draws a pension only under
               JUDGMENT OF THE COURT                                      a special scheme for civil servants and persons treated
                                                                          as such.
                        (Fifth Chamber)
                       of 5 March 1998                               (1 ) OJ C 233, 10.8.1996.
                                                                     (2 ) OJ L 230, 22.8.1983, p. 6.
in Case C-194/96 (reference for a preliminary ruling from
                                                                     (3)  OJ L 331, 16.11.1989, p. 1.
    the Bundessozialgericht): Hilmar Kulzer v. Freistaat             (4)  OJ L 136, 19.5.1992, p. 1.
                            Bayern (1)
(Regulation (EEC) No 1408/71 Ð Worker who has not
exercised the right to freedom of movement Ð Retired
civil servant Ð Article 73 Ð Family benefits Ð German
institution competent Ð Article 77 Ð National
                           legislation)
                                                                                JUDGMENT OF THE COURT
                         (98/C 137/03)
                                                                                (Sixth Chamber)
                                                                                of 5 March 1998
               (Language of the case: German)
                                                                     in Case C-347/96 (reference for a preliminary ruling from
                                                                     the Tribunal Superior de Justicia de Madrid): Solred SA v.
                                                                                Administración General del Estado (1)
  (Provisional translation; the definitive translation will be
                                                                     (Directive 69/355/EEC Ð Duty charged on documents
          published in the European Court Reports)
                                                                       recording the contribution of a part of the share capital)
                                                                                (98/C 137/04)
In Case C-194/96: reference to the Court pursuant to
Article 177 of the EC Treaty from the Bundessozialgericht
(Federal Social Court), Germany, for a preliminary ruling                            (Language of the case: Spanish)
in the proceedings pending before that court between
Hilmar Kulzer und Freistaat Bayern (Free State of Bavaria)
Ð on the interpretation of Articles 2(3), 73 and 77 of                 (Provisional translation; the definitive translation will be
Council Regulation (EEC) No 1408/71 of 14 June 1971                            published in the European Court Reports)
on the application of social security schemes to employed
persons, to self-employed persons and to members of their
families moving within the Community, as amended and                 In Case C-347/96: reference to the Court pursuant to
updated by Regulation (EEC) No 2001/83 (2), as amended               Article 177 of the EC Treaty from the Tribunal Superior
by Regulation (EEC) No 3427/89 of 30 October 1989,                   de Justicia de Madrid (High Court of Justice, Madrid), for
then by Regulation (EEC) No 1247/92 (3) Ð the Court                  a preliminary ruling in the proceedings pending before
(Fifth Chamber), composed of: C. Gulmann, President of               that court between Solred SA and Administración General
the Chamber, J. C. Moitinho de Almeida, D. A. O.                     del Estado Ð on the interpretation of Articles 4(1)(a),
Edward (Rapporteur), J.-P. Puissochet and P. Jann, Judges;           5(1)(a), 7 and 10(a) of Council Directive 69/335/EEC of
N. Fennelly, Advocate-General; H. A. Rühl, Principal                 17 July 1969 concerning indirect taxes on the raising of
Administrator, for the Registrar, has given a judgment on            capital (2), as amended by Directive 85/303/EEC (3) Ð the
5 March 1998, in which it has ruled:                                 Court (Sixth Chamber), composed of: H. Ragnemalm


title: Case C-136/16: Order of the President of the Second Chamber of the Court of 10 March 2017 (request for a preliminary ruling from the Supremo Tribunal de Justiça — Portugal) — Sociedade Metropolitana de Desenvolvimento SA v Banco Santander Totta SA

text:
               22.5.2017

               EN

               Official Journal of the European Union

               C 161/17

         Order of the President of the Second Chamber of the Court of 10 March 2017 (request for a preliminary ruling from the Supremo Tribunal de Justiça — Portugal) — Sociedade Metropolitana de Desenvolvimento SA v Banco Santander Totta SA
   (Case C-136/16) (1)

   (2017/C 161/23)
   Language of the case: Portuguese
   The President of the Second Chamber has ordered that the case be removed from the register.

      (1)  OJ C 165, 10.5.2016.


title: Case T-104/15: Action brought on 25 February 2015 — Militos Symvouleftiki/Commission

text:
               11.5.2015

               EN

               Official Journal of the European Union

               C 155/32

         Action brought on 25 February 2015 — Militos Symvouleftiki/Commission
   (Case T-104/15)
   (2015/C 155/38)
   Language of the case: English

      Parties

      Applicant: Militos Symvouleftiki AE (Athens, Greece) (represented by: S. Pappas, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the Commission’s Implementing Decision of 16 December 2014, rejecting as unfounded the applicant’s referral for legality review of 23 October 2014, and upholding the decision of 23 September 2014 of the Education, Audiovisual and Culture Executive Agency, regarding the ineligibility of remuneration paid to the applicant’s partners/shareholders as staff costs in two projects successfully executed by the applicant, namely ‘Go Green — Green Business is smart Business’ project (Agreement No. 510424-LLP-1-2010-1-GR-LEONARDO-LMP) and ‘LadybizIT’ project (Agreement No. 2011-3052-518310-LLP-1-2011-1-GR-LEONARDO-LAM), and determine eligible as staff costs in the project concerned the relevant costs corresponding to the ‘additional’ services provided by Ms Olga Stavropoulou, Mr Pavlos Aravantinos, and Mr Karamanlis, or, in the alternative, determine solely the costs corresponding to the ‘additional’ services provided by Ms Olga Stavropoulou and Mr Pavlos Aravantinos in the two projects in question eligible under Article II.14 of the grant agreement and its annex III and payable to the applicant;

               —

               order the Commission to bear its own costs and pay the costs borne by the applicant in the current proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging a manifest error of assessment of the Commission.

                           —

                           The Commission failed to take into consideration the fact that the distinction between ‘usual’ and ‘additional’ services provided by the partners/shareholders in the context of the projects concerned could have been made in view of the nature of such services, the wording and the spirit of the provisions of the applicant’s Statutes of the time and of the provisions of the decision of 20 December 2010 of the General Assembly of the applicant’s partners/shareholders.

               2.

               Second plea in law, alleging a second manifest error of assessment of the Commission.

                           —

                           The Commission’s consideration, according to which the capacity of the administrator as such precludes him from providing other services to the applicant under an employment contract with a genuine link of subordination, is contrary to the settled case-law of the Courts of the European Union. In any case, the applicant provided the Education, Audiovisual and Culture Executive Agency and the Commission with sufficient evidence establishing that the control exerted by the project manager on the administrator was real and met the criteria set by the case-law for the existence of a genuine link of subordination.


title: Case C-389/07: Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 10 August 2007 — Azlan Group plc v Her Majesty's Commissioners of Revenue and Customs

text:
               24.11.2007

               EN

               Official Journal of the European Union

               C 283/10

         Reference for a preliminary ruling from VAT and Duties Tribunal, Manchester (United Kingdom) made on 10 August 2007 — Azlan Group plc v Her Majesty's Commissioners of Revenue and Customs
   (Case C-389/07)
   (2007/C 283/17)
   Language of the case: English
   Referring court
   VAT and Duties Tribunal, Manchester
   Parties to the main proceedings

      Applicant: Azlan Group plc

      Defendant: Her Majesty's Commissioners of Revenue and Customs
   Questions referred

               (1)

               Is the Combined Nomenclature (Council Regulation (EEC) No 2658/87 (1) as amended by Commission Regulation (EC) No 1734/96) to be interpreted as requiring that the representative sample goods in issue between the parties be classified as ‘Automatic data-processing machines and units’ thereof under tariff heading 8471 (or under the relevant parts heading of Chapter 84, that is to say tariff heading 8473)?

               (2)

               If the answer to Question (1) is in the negative in respect of one or more of the representative sample goods in issue between the parties, is the Combined Nomenclature to be interpreted as requiring that such goods be classified as ‘Electrical apparatus for line telephony or line telegraphy, including line telephone sets with cordless handsets and telecommunications apparatus for carrier-current line systems or for digital line systems; videophones’ under tariff heading 8517 (or under the relevant parts heading, that is to say tariff heading 8517 or 8548, pursuant to Note 2(b) or (c) of Section XVI)?

               (3)

               Are such of the representative sample goods in issue between the parties as are capable of linking LANs always classifiable under Chapter 84 or do such products thereby perform a specific function other than data processing within the meaning of Chapter 84 Note 5(E)?

               (4)

               In the light of the answers to the previous questions, what is the position in relation to chassis products?

      (1)  Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff (OJ L 256, p. 1).


title: Case C-335/12: Judgment of the Court (Fifth Chamber) of 17 July 2014  — European Commission v Portuguese Republic (Failure of a Member State to fulfil obligations — Own resources — Post-clearance recovery of import duties — Financial liability of the Member States — Surplus stocks of non-exported sugar)

text:
               15.9.2014

               EN

               Official Journal of the European Union

               C 315/3

         Judgment of the Court (Fifth Chamber) of 17 July 2014 — European Commission v Portuguese Republic
   (Case C-335/12) (1)

   ((Failure of a Member State to fulfil obligations - Own resources - Post-clearance recovery of import duties - Financial liability of the Member States - Surplus stocks of non-exported sugar))
   2014/C 315/04
   Language of the case: Portuguese

      Parties

      Applicant: European Commission (represented by: A. Caeiros, Agent)

      Defendant: Portuguese Republic (represented by: L. Inez Fernandes, J. Gomes and P. Rocha, and by A. Cunha, Agents)

      Operative part of the judgment

   The Court rules and declares that:

               1.

               By failing to make available to the European Commission an amount of EUR 7 85  078,50 corresponding to levies on surplus stocks of non-exported sugar following the accession of Portugal to the European Community, the Portuguese Republic has failed to fulfil its obligations under Article 10 EC, Article 254 of the Act concerning the conditions of accession of the Kingdom of Spain and the Portuguese Republic and the adjustments to the Treaties, Article 7 of Council Decision 85/257/EEC, Euratom of 7 May 1985 on the Communities’ system of own resources, Articles 4, 7 and 8 of Commission Regulation (EEC) No 579/86 of 28 February 1986 laying down detailed rules relating to stocks of products in the sugar sector in Spain and Portugal on 1 March 1986, as amended by Commission Regulation (EEC) No 3332/86 of 31 October 1986, and Articles 2, 11 and 17 of Council Regulation (EEC, Euratom) No 1552/89 of 29 May 1989 implementing Decision 88/376/EEC, Euratom on the system of the Communities’ own resources

               2.

               The action is dismissed as to the remainder.

               3.

               The Portuguese Republic shall pay the costs.

      (1)  OJ C 303, 6.10.2012.