title: Case C-406/10: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 11 August 2010 — SAS Institute Inc. v World Programming Ltd

text:
               18.12.2010

               EN

               Official Journal of the European Union

               C 346/26

         Reference for a preliminary ruling from High Court of Justice (Chancery Division) (England and Wales) made on 11 August 2010 — SAS Institute Inc. v World Programming Ltd
   (Case C-406/10)
   ()
   2010/C 346/45
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicant: SAS Institute Inc.

      Defendant: World Programming Ltd

      Questions referred

   A.
         On the interpretation of Council Directive 91/250/EEC of 14 May 1991 on the legal protection of computer programs

       (1)

         and of Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 (codified version)

       (2):

               1.

               Where a computer program (‘the First Program’) is protected by copyright as a literary work, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for a competitor of the rightholder without access to the source code of the First Program, either directly or via a process such as decompilation of the object code, to create another program (‘the Second Program’) which replicates the functions of the First Program?

               2.

               Is the answer to question 1 affected by any of the following factors:

                           (a)

                           the nature and/or extent of the functionality of the First Program;

                           (b)

                           the nature and/or extent of the skill, judgment and labour which has been expended by the author of the First Program in devising the functionality of the First Program;

                           (c)

                           the level of detail to which the functionality of the First Program has been reproduced in the Second Program;

                           (d)

                           if the source code for the Second Program reproduces aspects of the source code of the First Program to an extent which goes beyond that which was strictly necessary in order to produce the same functionality as the First Program?

               3.

               Where the First Program interprets and executes application programs written by users of the First Program in a programming language devised by the author of the First Program which comprises keywords devised or selected by the author of the First Program and a syntax devised by the author of the First Program, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to interpret and execute such application programs using the same keywords and the same syntax?

               4.

               Where the First Program reads from and writes to data files in a particular format devised by the author of the First Program, is Article 1(2) to be interpreted as meaning that it is not an infringement of the copyright in the First Program for the Second Program to be written so as to read from and write to data files in the same format?

               5.

               Does it make any difference to the answer to questions 1, 3 and 4 if the author of the Second Program created the Second Program by:

                           (a)

                           observing, studying and testing the functioning of the First Program; or

                           (b)

                           reading a manual created and published by the author of the First Program which describes the functions of the First Program (‘the Manual’); or

                           (c)

                           both (a) and (b)?

               6.

               Where a person has the right to use a copy of the First Program under a licence, is Article 5(3) to be interpreting as meaning that the licensee is entitled, without the authorisation of the rightholder, to perform acts of loading, running and storing the program in order to observe, test or study the functioning of the First Program so as to determine the ideas and principles which underlie any element of the program, if the licence permits the licensee to perform acts of loading, running and storing the First Program when using it for the particular purpose permitted by the licence, but the acts done in order to observe, study or test the First Program extend outside the scope of the purpose permitted by the licence?

               7.

               Is Article 5(3) to be interpreted as meaning that acts of observing, testing or studying of the functioning of the First Program are to be regarded as being done in order to determine the ideas or principles which underlie any element of the First Program where they are done:

                           (a)

                           to ascertain the way in which the First Program functions, in particular details which are not described in the Manual, for the purpose of writing the Second Program in the manner referred to in question 1 above;

                           (b)

                           to ascertain how the First Program interprets and executes statements written in the programming language which it interprets and executes (see question 3 above);

                           (c)

                           to ascertain the formats of data Files which are written to or read by the First Program (see question 4 above);

                           (d)

                           to compare the performance of the Second Program with the First Program for the purpose of investigating reasons why their performances differ and to improve the performance of the Second Program;

                           (e)

                           to conduct parallel tests of the First Program and the Second Program in order to compare their outputs in the course of developing the Second Program, in particular by running the same test scripts through both the First Program and the Second Program;

                           (f)

                           to ascertain the output of the log file generated by the First Program in order to produce a log file which is identical or similar in appearance;

                           (g)

                           to cause the First Program to output data (in fact, data correlating zip codes to States of the USA) for the purpose of ascertaining whether or not it corresponds with official databases of such data, and if it does not so correspond, to program the Second Program so that it will respond in the same way as the First Program to the same input data.

         B.
         On the interpretation of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society

       (3):

               8.

               Where the Manual is protected by copyright as a literary work, is Article 2(a) to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in the Second Program any of the following matters described in the Manual:

                           (a)

                           the selection of statistical operations which have been implemented in the First Program;.

                           (b)

                           the mathematical formulae used in the Manual to describe those operations;

                           (c)

                           the particular commands or combinations of commands by which those operations may be invoked;

                           (d)

                           the options which the author of the First Program has provide in respect of various commands;

                           (e)

                           the keywords and syntax recognised by the First Program;.

                           (f)

                           the defaults which the author of the First Program has chosen to implement in the event that a particular command or option is not specified by the user;

                           (g)

                           the number of iterations which the First Program will perform in certain circumstances?

               9.

               Is Article 2(a) to be interpreted as meaning that it is an infringement of the copyright in the Manual for the author of the Second Program to reproduce or substantially reproduce in a manual describing the Second Program the keywords and syntax recognised by the First Program?

      (1)  OJ L 122, p. 42

      (2)  Directive 2009/24/EC of the European Parliament and of the Council of 23 April 2009 on the legal protection of computer programs (Codified version) (Text with EEA relevance), OJ L 111, p. 16

      (3)  OJ L 167, p. 10


title: Reference for a preliminary ruling by the Arrondissementsrechtbank, The Hague in the Case of Parfums Christian Dior SA against Tuk Consultancy BV (Case C-300/98)

text:
26.9.98               EN                  Official Journal of the European Communities                                           C 299/25
    condition not provided for by the definitive list                consequences set out therein take effect even in the
    contained in those provisions,                                   absence of any corresponding provision of national law?
                                                                     (1) OJ L 336, 23.12.1994, p. 213.
Ð breach of the principle that no one is bound to do the
    impossible', in that it held their failure to discharge an
    impossible burden of proof to be decisive,
Ð breach of Article 5(2) of Council Regulation (EEC)
    No 1697/79 and Article 220 of Regulation (EEC)
    No 2913/92, in that it interpreted those provisions as           Reference for a preliminary ruling from the Bundessozial-
    meaning that the customs authorities did not commit              gericht (Federal Social Court) by order of that Court of
    an error' when the undue payment was consistent                 13 May 1998 in the Case of Manfred Sehrer v. Bundes-
    with the declaration made by the exporter, and                   knappschaft (Federal Pension Fund for Miners),
    therefore there was an induced' error,                          intervener: Landesversicherungsanstalt für das Saarland
                                                                           (Regional Insurance Institution for the Saarland)
                                                                                (Case C-302/98)
Ð breach of the principle of protection of legitimate
    expectations. The Court of First Instance upheld the                                        (98/C 299/39)
    unusual concept of commercial risk' to be borne by
    all traders, although well aware that it is possible for
    the customs authorities to alter their findings,                 Reference has been made to the Court of Justice of the
                                                                     European Communities by an order of the Bundessozialge-
                                                                     richt (Eighth Chamber) of 13 May 1998, which was
Ð infringement of Articles 30 and 36 of the Treaty, in
                                                                     received at the Court Registry on 3 August 1998, for a
    that, by declaring that a customs' risk existed, it
                                                                     preliminary ruling in the Case of Manfred Sehrer v. Bun-
    upheld the need for a disguised restriction on trade
                                                                     desknappschaft, intervener: Landesversicherungsanstalt für
    between Member States,
                                                                     das Saarland on the following question.
Ð breach of the principle ne bis in idem and of Article 5
                                                                     Do Articles 6 and 48 to 51 of the Treaty establishing the
    of Council Regulation (EEC) No 1697/79 and
                                                                     European Community and Article 3 of Council Regulation
    Article 220 of Regulation (EEC) No 2913/92, in that
                                                                     (EEC) No 1408/71 (1), on the application of social security
    it did not annul the Decision, or even the part of the
                                                                     schemes to employed persons, to self-employed persons
    Decision authorising recovery of duties relating to a
                                                                     and to members of their families moving within the
    customs slip which had already been paid by CPL
                                                                     Community, preclude national rules under which the
    Imperial 2 SpA.
                                                                     whole of a supplementary French pension paid on the
                                                                     basis of a collective agreement is subject to contributions
(1) OJ L 197, 3.8.1979, p. 1.                                        by the pensioner both to the French sickness insurance
(2) OJ L 302, 19.10.1992, p. 1.                                      scheme and to the German sickness insurance scheme?
                                                                     (1) Official Journal, English Special Edition, First Series II, p. 416.
Reference for a preliminary ruling by the Arrondissements-
rechtbank, The Hague in the Case of Parfums Christian
            Dior SA against Tuk Consultancy BV
                                                                     Reference for a preliminary ruling by the Sala de lo Social
                       (Case C-300/98)                               del Tribunal Superior de Justicia de la Comunidad Valen-
                         (98/C 299/38)                               ciana by order of that court of 10 July 1998 in the Case
                                                                     of SIMAP (Sindicato de MeÂdicos de Sanidad de Asistencia
                                                                     PuÂblica) against the Conselleria de Sanidad y Consumo de
                                                                                la Generalitat Valenciana
Reference has been made to the Court of Justice of the
European Communities by judgment of the Arrondisse-                                           (Case C-303/98)
mentsrechtbank (District Court), The Hague, of 25 June
                                                                                (98/C 299/40)
1998, received at the Court Registry on 29 July 1998, for
a preliminary ruling in the Case of Parfums Christian Dior
SA against Tuk Consultancy BV on the following question.
                                                                     Reference has been made to the Court of Justice of the
                                                                     European Communities by order of the Sala de lo Social
Is Article 50(6) of the Agreement on trade-related aspects           del Tribunal Superior de Justicia de la Comunidad Valen-
of intellectual property rights (1) to be interpreted as             ciana (Chamber for Labour Matters of the High Court of
having direct effect in the sense that the legal                     Justice of the Valencia Community) of 10 July 1998,


title: Judgment of the Court of 28 January 2015 in Case E-13/14 — EFTA Surveillance Authority v Iceland (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services)

text:
               18.6.2015

               EN

               Official Journal of the European Union

               C 201/7

         JUDGMENT OF THE COURT
   of 28 January 2015
   in Case E-13/14
   EFTA Surveillance Authority v Iceland
   (Failure by a Contracting Party to fulfil its obligations — Failure to implement — Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services)
   (2015/C 201/07)
   In Case E-13/14, EFTA Surveillance Authority v Iceland — APPLICATION for a declaration that by failing to adopt, and/or to notify the EFTA Surveillance Authority forthwith of, the measures necessary to implement the Act referred to at point 21c of Annex XVIII to the EEA Agreement (Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services), as adapted to the EEA Agreement by way of Protocol 1 thereto and by Joint Committee Decision No 147/2009 of 4 December 2009, within the time prescribed, Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement, the Court, composed of Carl Baudenbacher, President, Per Christiansen and Páll Hreinsson (Judge-Rapporteur), Judges, gave judgment on 28 January 2015, the operative part of which is as follows:
   The Court hereby:

               1.

               Declares that by failing, within the time prescribed, to adopt the measures necessary to implement the Act referred to at point 21c of Annex XVIII to the EEA Agreement (Council Directive 2004/113/EC of 13 December 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services), as adapted to the EEA Agreement by way of Protocol l thereto and by Joint Committee Decision No 147/2009 of 4 December 2009, Iceland has failed to fulfil its obligations under the Act and under Article 7 of the EEA Agreement.

               2.

               Orders Iceland to bear the costs of these proceedings.


title: Judgment of the Court (Grand Chamber) of  15 November 2005  in Case C-320/03: Commission of the European Communities v Republic of Austria (Failure by a Member State to fulfil its obligations — Articles 28 EC to 30 EC — Free movement of goods — Articles 1 and 3 of Regulation (EEC) No 881/92 — Articles 1 and 6 of Regulation (EEC) No 3118/93 — Transport — Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods — Air quality — Protection of health and the environment — Proportionality principle)

text:
               11.2.2006

               EN

               Official Journal of the European Union

               C 36/4

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 15 November 2005
   in Case C-320/03: Commission of the European Communities v Republic of Austria (1)

   (Failure by a Member State to fulfil its obligations - Articles 28 EC to 30 EC - Free movement of goods - Articles 1 and 3 of Regulation (EEC) No 881/92 - Articles 1 and 6 of Regulation (EEC) No 3118/93 - Transport - Sectoral prohibition on the movement of lorries of more than 7.5 tonnes carrying certain goods - Air quality - Protection of health and the environment - Proportionality principle)
   (2006/C 36/07)
   Language of the case: German
   In Case C-320/03, Commission of the European Communities (Agents: C. Schmidt, W. Wils and G. Braun), supported by Federal Republic of Germany (Agents: W.-D. Plessing and A. Tiemann, assisted by T. Lübbig, lawyer), Italian Republic (Agent: I.M. Braguglia, assisted by G. De Bellis, Avvocato dello Stato), Kingdom of the Netherlands, (Agent: H.G. Sevenster) v Republic of Austria (Agents: E. Riedl and H. Dossi) — Action under Article 226 EC for failure to fulfil obligations, brought on 24 July 2003 — the Court (Grand Chamber), composed of V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and K. Schiemann, Presidents of Chambers, R. Schintgen (Rapporteur), J.N. Cunha Rodrigues, R. Silva de Lapuerta, K. Lenaerts, P. Kūris, E. Juhász, G. Arestis and A. Borg Barthet, Judges; L.A. Geelhoed, Advocate General; K. Sztranc, Administrator, for the Registrar, gave a judgment on 15 November 2005, the operative part of which is as follows:

               1.

               By prohibiting lorries of over 7.5 tonnes, carrying certain goods, from driving on a section of the A 12 motorway in the Inn valley, following the adoption of the Regulation of the First Minister of the Tyrol limiting transport on the A 12 motorway in the Inn valley (sectoral prohibition on road transport) [Verordnung des Landeshauptmanns von Tirol, mit der auf der A 12 Inntalautobahn verkehrsbeschränkende Maßnahmen erlassen werden (sektorales Fahrverbot)], of 27 May 2003, the Republic of Austria has failed to fulfil its obligations under Articles 28 EC and 29 EC.

               2.

               The remainder of the application is dismissed.

               3.

               The Republic of Austria is ordered to pay the costs.

               4.

               The Federal Republic of Germany, the Italian Republic and the Kingdom of the Netherlands are ordered to bear their own costs.

      (1)  OJ C 226, 20. 9.2003.


title: Case C-16/06 P: Judgment of the Court (First Chamber) of 18 December 2008 — Les Éditions Albert René Sàrl v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Orange A/S (Appeals — Community trade mark — Regulation (EC) No 40/94 — Articles 8 and 63 — Word mark MOBILIX — Opposition by the proprietor of the Community and national word mark OBELIX — Partial rejection of the opposition — Reformatio in pejus — Counteraction theory — Modification of the subject-matter of the dispute — Documents included as an annex to the application as new evidence before the Court of First Instance)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/2

         Judgment of the Court (First Chamber) of 18 December 2008 — Les Éditions Albert René Sàrl v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Orange A/S
   (Case C-16/06 P) (1)

   (Appeals - Community trade mark - Regulation (EC) No 40/94 - Articles 8 and 63 - Word mark MOBILIX - Opposition by the proprietor of the Community and national word mark OBELIX - Partial rejection of the opposition - Reformatio in pejus - ‘Counteraction’ theory - Modification of the subject-matter of the dispute - Documents included as an annex to the application as new evidence before the Court of First Instance)
   (2009/C 44/03)
   Language of the case: English
   Parties

      Appellant: Les Éditions Albert René Sàrl (represented by: J. Pagenberg, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: G. Schneider, acting as Agent), Orange A/S (represented by: J. Balling, advokat)
   Re:
   Appeal against the judgment of the Court of First Instance (Third Chamber) of 27 October 2005 in Case T-336/03 Editions Albert René v OHIM — Orange (MOBILIX) by which that Court dismissed an action for annulment brought by the proprietor of the Community and national word mark ‘OBELIX’ in respect of certain goods and services classed inter alia in Classes 9, 16, 28, 35, 41 and 42 against Decision R 559/2002-4 of the Fourth Board of Appeal of OHIM of 14 July 2003 rejecting in part the application brought against the decision of the Opposition Division rejecting the opposition proceeding brought against the application to register the word mark MOBILIX in respect of certain goods and services classed in Classes 9, 16, 35, 37, 38 and 42
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Les Éditions Albert René Sàrl to pay the costs.

      (1)  OJ C 143, 17.6.2006.


title: Case T-414/06 P: Judgment of the Court of First Instance of 5 March 2008 — Combescot v Commisssion (Appeal — Staff cases — Officials — Inadmissibility of the action before the Civil Service Tribunal — Time-limit for bringing an action)

text:
               12.4.2008

               EN

               Official Journal of the European Union

               C 92/27

         Judgment of the Court of First Instance of 5 March 2008 — Combescot v Commisssion
   (Case T-414/06 P) (1)

   (Appeal - Staff cases - Officials - Inadmissibility of the action before the Civil Service Tribunal - Time-limit for bringing an action)
   (2008/C 92/54)
   Language of the case: Italian
   Parties

      Appellant: Philippe Combescot (Popayán, Colombia) (represented by: A. Maritati and V. Messa, lawyers)

      Other party to the proceedings: Commisssion of the European Communities (represented by: V. Joris and M. Velardo, Agents, assisted by S. Corongiu, lawyer)
   Re:
   Appeal against the judgment of the European Civil Service Tribunal (Second Chamber) of 19 October 2006 in Case F-114/05 Combescot v Commisssion, not yet published in the ECR, seeking the setting aside of that judgment.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Mr Philippe Combescot to bear his own costs and pay those incurred by the Commission.

      (1)  OJ C 42, 24.2.2007.


title: Case C-388/10 P: Appeal brought on 2 August 2010 by Félix Muñoz Arraiza against the judgment delivered on 9 June 2010 by the General Court (Fifth Chamber) in Case T-138/09 Félix Muñoz Arraiza v OHIM and Consejo Regulador de la Denominación de Origen Calificada Rioja

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/7

         Appeal brought on 2 August 2010 by Félix Muñoz Arraiza against the judgment delivered on 9 June 2010 by the General Court (Fifth Chamber) in Case T-138/09 Félix Muñoz Arraiza v OHIM and Consejo Regulador de la Denominación de Origen Calificada Rioja
   (Case C-388/10 P)
   ()
   2010/C 301/09
   Language of the case: Spanish

      Parties

      Appellant: Félix Muñoz Arraiza (represented by: J. Grimau Muñoz and J. Villamor Muguerza, abogados)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and Consejo Regulador de la Denominación de Origen Calificada Rioja

      Form of order sought

               —

               set aside the judgment of the General Court of the European Union (Fifth Chamber) of 9 June 2010 in Case T-138/09 on the ground that the opposing trade marks are wholly compatible with the Community trade mark application No 4 121 621, ‘Riojavina’;

               —

               order the defendants to pay the costs.

      Pleas in law and main arguments

               A.

               The first plea in law alleges infringement of Article 8(1)(b) of Regulation No 207/2009 (1) on the Community trade mark. The plea concerning infringement of that provision is further subdivided into two parts:

                           —

                           Distortion of the clear sense of the facts and of the list of goods and services actually designated in the trade mark application and misinterpretation of the judgment of the Court of Justice in Canon
                               (2), paragraph 23, in conjunction with the judgments of the Court of Justice of 9 December 1981 in Case 193/80 and of 15 October 1985 in Case 281/83.
                           This part of the plea alleges that the General Court restricted the list of goods actually designated in the Community trade mark application, limiting the general category ‘vinegars’ to ‘wine vinegar’, taking as its basis two arguments: the first entailing taking into account a national legislative definition of ‘vinegar’, which is indirect and in the nature of a reference, namely the Disposición Adicional Primera de la Ley española 24/2003 de la Viña y el Vino (First Additional Provision to the Law concerning grapevines and wine), instead of a direct normative definition based on Community law and confirmed by the judgments of the Court of Justice of 9 December 1981 in Case 193/80 and of 15 October 1985 in Case 281/83. In those judgments it is clearly stated that Community law interprets vinegar as a generic term and wholly dissociates it from any meaning requiring it to be derived from wine. The second argument used by the General Court to equate the category ‘vinegar’ with ‘wine vinegar’ consists in stating that wine producers usually also produce wine vinegar, which amounts to begging the question since such a statement is in turn based on the equation of the category ‘vinegar’ with ‘wine vinegar’. Furthermore, for the purpose of drawing a comparison in the context of the analysis of the likelihood of confusion, the judgments in Case 193/80 and Case 281/83 establish a connection between the generic character of vinegar and the relevant territory. The General Court, however, distorted the relevant territory when it stated that the type of vinegar most commonly produced and consumed ‘in the world’ is wine vinegar, since the territory to be considered is that of the European Union.

                           —

                           Failure to observe the procedural rules relating to the appraisal of evidence and to the burden of proof in accordance with the judgments of the Court of Justice in Case C-375/97 (3) and Joined Cases C-108/97 and C-109/97 (4).
                           This part of the plea also complains that the General Court carried out its comparison of the signs on the basis (not substantiated in the proceedings) of the reputation and/or high degree of distinctive character of the trade mark ‘Rioja’.

               B.

               The second plea in law alleges infringement, by analogy, of Article 43 of Regulation No 40/94 (5), now Article 42 of Regulation No 207/2009.

                           —

                           This complaint alleges that the General Court restricted the list of goods and services actually designated because of the declaration of the future use of the trade mark applied for, something which is possible only for trade marks which have been registered for at least five years and subject to proof of use requested by the proprietor of the mark at issue pursuant to Article 42(2) of Regulation No 207/2009.

      (1)  Council Regulation (EC) No 207/2009 of 26 February 2009 (OJ 2009 L 78, p, 1).

      (2)  Case C-39/97 Canon [1998] ECR I-5507.

      (3)  General Motors [1999] ECR I-542.

      (4)  Windsurfing Chiemsee [1999] ECR I-2779.

      (5)  OJ 1994 L 11, p. 1.


title: Case C-36/08: Judgment of the Court (Sixth Chamber) of 2 October 2008 — Commission of the European Communities v Hellenic Republic (Failure of a Member State to fulfil obligations — Directive 93/16/EEC — Specific training required to practise as a general practitioner — Incorrect transposition)

text:
               22.11.2008

               EN

               Official Journal of the European Union

               C 301/12

         Judgment of the Court (Sixth Chamber) of 2 October 2008 — Commission of the European Communities v Hellenic Republic
   (Case C-36/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 93/16/EEC - Specific training required to practise as a general practitioner - Incorrect transposition)
   (2008/C 301/23)
   Language of the case: Greek
   Parties

      Applicant: Commission of the European Communities (represented by: G. Zavvos and H. Støvlbæk, acting as Agents)

      Defendant: Hellenic Republic (represented by: E. Skandalou, acting as Agent)
   Re:
   Failure of a Member State to fulfil obligations — Infringement of Articles 30, 31 and 36 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications (OJ 1993 L 165, p. 1) — Specific training required to practise as a general practitioner
   Operative part of the judgment
   The Court:

               1.

               Declares that, by adopting and maintaining in force rules such as Article 29(d.1) and (d.2) of Law 3209/2003 which are not in compliance with Articles 30, 31 and 36 of Council Directive 93/16/EEC of 5 April 1993 to facilitate the free movement of doctors and the mutual recognition of their diplomas, certificates and other evidence of formal qualifications, as amended by Directive 2001/19/EC of the European Parliament and of the Council of 14 May 2001, the Hellenic Republic has failed to fulfil its obligations under Articles 30, 31 and 36 of that directive;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Hellenic Republic to pay the costs.

      (1)  OJ C 92, 12.4.2008.


title: Case T-37/10: Judgment of the General Court of 27 April 2012 — De Nicola v EIB (Appeal — Civil service — Staff of the EIB — Appraisal — Promotion — Appraisal and promotion in respect of 2006 — Decision of the Appeals Committee — Scope of the review — Sickness insurance — Refusal to bear medical costs — Claim for compensation)

text:
               9.6.2012

               EN

               Official Journal of the European Union

               C 165/17

         Judgment of the General Court of 27 April 2012 — De Nicola v EIB
   (Case T-37/10) (1)

   (Appeal - Civil service - Staff of the EIB - Appraisal - Promotion - Appraisal and promotion in respect of 2006 - Decision of the Appeals Committee - Scope of the review - Sickness insurance - Refusal to bear medical costs - Claim for compensation)
   2012/C 165/29
   Language of the case: Italian

      Parties

      Appellant: Carlo De Nicola (Strassen, Luxembourg) (represented by: L. Isola, lawyer)

      Other party to the proceedings: European Investment Bank (represented by: G. Nuvoli and F. Martin, acting as Agents, and A. Dal Ferro, lawyer)

      Re:

   Appeal against the judgment of the European Union Civil Service Tribunal (First Chamber) of 30 November 2009 in Case F-55/08 De Nicola v European Investment Bank, not yet published in the ECR, seeking to have that judgment set aside.

      Operative part of the judgment

   The Court:

               1.

               Sets aside the judgment of the European Union Civil Service Tribunal (First Chamber) in Case F-55/08 De Nicola v EIB [2009], not yet published in the ECR, in so far as it dismisses, firstly, Mr Carlo De Nicola’s claims seeking annulment of the decision of the Appeals Committee of the European Investment Bank (EIB); secondly, his claims seeking annulment of the decision to refuse his promotion for 2006 and all the acts connected with, consecutive and prior to that decision; and, thirdly, his claims seeking recognition of the liability of the EIB for the harassment of him which it carried out and seeking compensation for the losses alleged on that basis;

               2.

               Dismisses the remainder of the appeal;

               3.

               Refers the matter back to the Civil Service Tribunal;

               4.

               Reserves the costs.

      (1)  OJ C 80, 27.3.2010.


C 118/22                EN                     Official Journal of the European Communities                                  21.4.2001
Reference for a preliminary ruling by the French Conseil                         Removal from the register of Case C-343/99 (1)
d’État, judicial section, by judgment of that court of
29 January 2001 in the case of Malika Tennah-Durez
   against the Conseil National de l’Ordre des Médecins                                          (2001/C 118/37)
                                                                          By order of 25 July 2000 the President of the Court of Justice
                          (Case C-110/01)                                 of the European Communities has ordered the removal from
                                                                          the register of Case C-343/99: Kingdom of the Netherlands v
                                                                          Commission of the European Communities.
                          (2001/C 118/36)
                                                                          (1) OJ C 352 of 4.12.1999.
Reference has been made to the Court of Justice of the
European Communities by judgment of the French Conseil
d’État (Council of State), judicial section, of 29 January 2001,
received at the Court Registry on 9 March 2001, for a
preliminary ruling in the case of Malika Tennah-Durez against
the Conseil National de l’Ordre des Médecins (National Council
of the Medical Association) on the following questions:
1.    Are the provisions of Article 23(2) of Council Directive                   Removal from the register of Case C-157/98 (1)
      93/16/EEC of 5 April 1993 (1) relating to the period of
      medical training that a doctor who is a national of a
                                                                                (2001/C 118/38)
      Member State must have completed, comprising at least
      a six-year course or 5 500 hours of theoretical and
      practical instruction given in a university or under the            By order of 2 August 2000 the President of the Court of Justice
      supervision of a university, to be understood as meaning            of the European Communities has ordered the removal from
      training completed, in its entirety, only in a university of        the register of Case C-157/98: Kingdom of the Netherlands v
      a Member State of the Community or under the super-                 Commission of the European Communities.
      vision of such a university, or do they allow all or part of
      any training received in a third country to be taken into
      account?
                                                                          (1) OJ C 258 of 15.8.1998.
2.    Are the national authorities bound by the certificate
      provided, pursuant to Article 9(5) of the directive, by the
      competent authorities of the Member State in which the
      diploma submitted by the person concerned was awarded,
      which states that the diploma is treated as one of the
      qualifications or designations set out in Article 3, 5 or 7
      of the directive and was awarded following training in
      accordance with the provisions of Title III thereof, or may
      they make their own assessment of the said certificate                     Removal from the register of Case C-410/99 (1)
      in the light of, in particular, the minimum training
      requirements prescribed by the directive and required by
      national legislation in order, in some circumstances, to                                   (2001/C 118/39)
      consider whether, despite the terms of the certificate so
      issued, the training received by the person concerned
      meets the requirements of the directive?                            By order of 2 August 2000 the President of the Court of Justice
                                                                          of the European Communities has ordered the removal from
                                                                          the register of Case C-410/99: (reference for a preliminary
                                                                          ruling from Kantongerecht te Groningen): Kamer van
(1) Council Directive 93/16/EEC of 5 April 1993 to facilitate the free    Koophandel en Fabrieken voor Groningen v Challenger Trad-
    movement of doctors and the mutual recognition of their               ing Company Ltd.
    diplomas, certificates and other evidence of formal qualifications
    (OJ L 165, 7.7.1993, p. 1).
                                                                          (1) OJ C 20 of 22.1.2000.


title: Case C-94/08: Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain (Failure of a Member State to fulfil its obligations — Posts of ship's captain and chief mate — Nationality clause)

text:
               10.1.2009

               EN

               Official Journal of the European Union

               C 6/9

         Judgment of the Court (Sixth Chamber) of 20 November 2008 — Commission of the European Communities v Kingdom of Spain
   (Case C-94/08) (1)

   (Failure of a Member State to fulfil its obligations - Posts of ship's captain and chief mate - Nationality clause)
   (2009/C 6/15)
   Language of the case: Spain
   Parties

      Applicant: Commission of the European Communities (represented by: G. Rozet and L. Lozano Palacios, acting as Agents)

      Defendant: Kingdom of Spain (represented by: B. Plaza Cruz, Agent)
   Re:
   Failure of Member State to fulfil its obligations — Infringement of Article 39 EC — Requirement of Spanish nationality for persons occupying the posts of captain and chief mate on certain ships flying the Spanish flag — Incompatibility with Community law.
   Operative part of the judgment
   The Court:

               1.

               Declares that in requiring in its legislation Spanish nationality for persons occupying the posts of ship's captain and chief mate of all merchant ships flying the Spanish flag other than merchant ships with a gross tonnage less than 100 GT, which carry cargo or fewer than 100 passengers and operate exclusively between ports or points situated in areas in which the Kingdom of Spain has sovereignty, sovereign rights or jurisdiction, the Kingdom of Spain has failed to fulfil its obligations under Community law and, in particular, under Article 39 EC;

               2.

               Orders the Kingdom of Spain to pay the costs.

      (1)  OJ C 107, 26.4.2008.


title: Judgment of the Court of First Instance of 23 April 2002 in Case T-372/00: Mario Campolargo v Commission of the European Communities (Officials — Recruitment procedures — Application of Article 29(1) of the Staff Regulations — Recruitment of a temporary agent — Withdrawal of an administrative act)

text:
C 156/22               EN                     Official Journal of the European Communities                                         29.6.2002
    JUDGMENT OF THE COURT OF FIRST INSTANCE                                  JUDGMENT OF THE COURT OF FIRST INSTANCE
                        of 23 April 2002                                                          of 16 April 2002
in Case T-372/00: Mario Campolargo v Commission of                       in Case T-51/01: Joachim Fronia v Commission of the
                 the European Communities (1)                                              European Communities (1)
(Officials — Recruitment procedures — Application of                     (Officials — Reorganisation of the Commission’s adminis-
Article 29(1) of the Staff Regulations — Recruitment of a                trative structures — Reappointment of a former Head of
  temporary agent — Withdrawal of an administrative act)                                 Unit as an ad personam adviser)
                         (2002/C 156/41)                                                          (2002/C 156/42)
                   (Language of the case: French)                                           (Language of the case: French)
In Case T-372/00: Mario Campolargo, temporary agent at                   In Case T-51/01: Joachim Fronia, an official of the Commission
the Commission of the European Communities, residing in                  of the European Communities, residing in Overijse, Belgium,
Kraainem (Belgium), represented by C. Mourato, avocat, with              represented by J.-N. Louis and V. Peere, avocats, with an
an address for service in Luxembourg, against Commission of              address for service in Luxembourg, against Commission of the
the European Communities (Agents: J. Currall and D. Wael-                European Communities (Agent: F. Clotuche-Duvieusart) —
broeck) — application for annulment of the decision of the               application for annulment of the decisions whereunder, on the
Commission of 15 February 2000 annulling the appointment                 reorganisation of the Commission’s administrative structures,
of the applicant to the post of Head of Unit XIII.G.2 —                  the applicant was not kept on as acting head of Unit, but was
the Court of First Instance (First Chamber), composed of                 instead appointed as an ad personam adviser — the Court of
B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges;             First Instance (Second Chamber), composed of R.M. Moura
H. Jung, Registrar, gave a judgment on 23 April 2002, in                 Ramos, President, and J. Pirrung and A.W.H. Meij, Judges;
which it:                                                                J. Plingers, Administrator, for the Registrar, has given a
                                                                         judgment on 16 April 2002, in which it:
1.    annuls the decision of the Commission of 15 February 2000
      annulling the appointment of Mr Campolargo to the post of          1.    Dismisses the application;
      Head of Unit XIII.G.2.
                                                                         2.    Orders each of the parties to bear their own costs.
2.    orders the Commission to pay the costs.
(1) OJ C 45 of 10.2.2001.                                                (1) OJ C 186 of 30.6.2001.


title: Order of the Court (Second Chamber) 3 December 2001 in Case C-59/00 (Reference for a preliminary ruling from the Vestre Landsret): Bent Mousten Vestergaard v Spøttrup Boligselskab (Article 104(3) of the Rules of Procedure — Public works contracts — Contracts with a value below the threshold values laid down in Directive 93/37/EEC — Clause requiring the use of a product of a specified make, without any possibility of using a similar product — Free movement of goods)

text:
6.4.2002                 EN                         Official Journal of the European Communities                                             C 84/31
Portugal on 1 March 1986 (OJ 1986 57, p. 21) — the Court                             —     the person liable has complied with all of the provisions
(First Chamber), composed of: P. Jann (Rapporteur), President                              laid down by the rules in force as far as concerns the
of the Chamber, L. Sevón and M. Wathelet, Judges; A. Tizzano,                             declaration of the event to which the collection of the levy
Advocate General; R. Grass, Registrar, has made an order on                                in question relates.
11 October 2001, in which it has ruled:
                                                                               (1) OJ No C 122 of 29 April 2000.
1.    Article 1(2)(c) and the second subparagraph of Article 2(1) of
      Council Regulation (EEC) No 1697/79 of 24 July 1979 on
      the post-clearance recovery of import duties or export duties                                 ORDER OF THE COURT
      which have not been required of the person liable for payment
      on goods entered for a customs procedure involving the                                            (Second Chamber)
      obligation to pay such duties must be interpreted as meaning
      that entry in the accounts of the amount originally required of
                                                                                3 December 2001
      the person liable for payment is an official act which precedes
      notification regarding recovery and actual recovery and which
      does not necessarily consist in entry by the customs authority in        in Case C-59/00 (Reference for a preliminary ruling
      the accounts books, or any other medium used in their stead, of          from the Vestre Landsret): Bent Mousten Vestergaard v
      the amount in question.                                                                       Spøttrup Boligselskab (1)
                                                                               (Article 104(3) of the Rules of Procedure — Public works
                                                                               contracts — Contracts with a value below the threshold
2.    Article 2(2) of Regulation No 1697/79 must be interpreted as             values laid down in Directive 93/37/EEC — Clause requiring
      meaning that, where an initial act determining the amount of             the use of a product of a specified make, without any
      levies payable is annulled and replaced by a second act which,           possibility of using a similar product — Free movement of
      without altering the basis for recovery, fixes such levies in an                                          goods)
      amount lower than that which was initially decided, the action
      for recovery must be considered to have been set in motion by                                       (2002/C 84/51)
      the initial act.
                                                                                (Language of the case: Danish)
                                                                               (Provisional translation; the definitive translation will be published
3.    Neither Article 254 of the Act of Accession nor the provisions of                            in the European Court Reports)
      Commission Regulation (EEC) No 3771/85 of 20 December
      1985 on stocks of agricultural products in Portugal nor of
      Commission Regulation (EEC) No 579/86 of 28 February                     In Case C-59/00: Reference to the Court under Article 234 EC
      1986 laying down detailed rules relating to stocks of products           by the Vestre Landsret (Denmark) for a preliminary ruling in
      in the sugar sector in Spain and Portugal preclude the                   the proceedings pending before that court between Bent
      Portuguese Republic from requiring of traders holding surplus            Mousten Vestergaard and Spøttrup Boligselskab, on the
      stocks of sugar which they should have been able to export               interpretation of Articles 6 and 30 of the EC Treaty (now, after
      within the period prescribed for that purpose to pay the levy            amendment, Articles 12 EC and 28 EC), the Court (Second
      provided for by Article 7(1) of Regulation No 579/86.                    Chamber) composed of: N. Colneric, President of the Chamber,
                                                                               R. Schintgen and V. Skouris (Rapporteur), Judges, Advocate
                                                                               General: P. Léger, Registrar: R. Grass, after informing the
                                                                               referring court of its intention to give its decision by reasoned
4.    The customs authorities of a Member State must refrain from              order in accordance with Article 104(3) of the Rules of
      carrying out post-clearance recovery of duties pursuant to               Procedure, after inviting the parties referred to in Article 20 of
      Article 5(2) of Regulation No 1697/79 where:                             the EC Statute of the Court of Justice to submit observations,
                                                                               has made an order on 3 December 2001, in which it has ruled:
                                                                               Article 30 of the EC Treaty (now, after amendment, Article 28 EC)
      —      the duties have not been collected on account of an error         precludes a contracting authority from including in the contract
             of interpretation or application of the provisions on the         documents for a public works contract which does not exceed the
             levy in question in so far as it is the consequence of acts of    threshold laid down in Council Directive 93/37/EEC of 14 June
             the competent authorities, which excludes errors caused by        1993 concerning the coordination of procedures for the award of
             incorrect declarations by the person liable                       public works contracts a clause requiring the use in carrying out the
                                                                               contract of a product of a specified make, where that clause does not
                                                                               include the words ‘or equivalent’.
      —      the person liable acting in good faith could not reasonably       (1) OJ C 122 of 29.4.2000.
             have detected that error, despite his professional experience
             and the diligence shown by him


               20.3.2008

               EN

               Official Journal of the European Union

               C 74/65

         Request for an Advisory Opinion from the EFTA Court by Oslo tingrett dated 26 November 2007 in the Case of L'Oréal Norge AS v Smart Club Norge AS
   (Case E-10/07)
   (2008/C 74/15)
   A request has been made to the EFTA Court by a letter of 26 November 2007 from Oslo tingrett (Oslo District Court), which was received at the Court Registry on 29 November 2007, for an Advisory Opinion in the Case of L'Oréal Norge AS v Smart Club Norge AS, on the following questions:

               1.

               Is Article 7(1) of Council Directive 89/104/EEC to be understood to the effect that a trade mark proprietor has the right to prevent imports from third countries outside the EEA when such imports take place without the consent of the trade mark proprietor?

               2.

               Is Article 7(1) of Directive 89/104/EEC to be understood to the effect that international exhaustion is permitted?


title: Case T-603/11: Order of the General Court of 27 March 2014  — Ecologistas en Acción v Commission (Access to documents — Regulation (EC) No 1049/2001 — Documents relating to the carrying out of an industrial project on a site protected under Directive 92/43/EEC — Documents originating from a Member State — Opposition by the Member State — Refusal of access — Exception relating to the protection of the purpose of inspections, investigations and audits — Exception relating to the protection of court proceedings — Environmental information — Regulation (EC) No 1367/2006 — Action manifestly lacking any foundation in law)

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/24

         Order of the General Court of 27 March 2014 — Ecologistas en Acción v Commission
   (Case T-603/11) (1)

   ((Access to documents - Regulation (EC) No 1049/2001 - Documents relating to the carrying out of an industrial project on a site protected under Directive 92/43/EEC - Documents originating from a Member State - Opposition by the Member State - Refusal of access - Exception relating to the protection of the purpose of inspections, investigations and audits - Exception relating to the protection of court proceedings - Environmental information - Regulation (EC) No 1367/2006 - Action manifestly lacking any foundation in law))
   2014/C 159/33
   Language of the case: Spanish

      Parties

      Applicant: Ecologistas en Acción-CODA (Madrid, Spain) (represented by: J. Doreste Hernández, lawyer)

      Defendant: European Commission (represented by: P. Costa de Oliveira and I. Martínez del Peral, acting as Agents)

      Intervening party in support of the defendant: Kingdom of Spain (represented initially by S. Centeno Huerta, then by M. J. García-Valdecasas Dorrego, abogados del Estado)

      Re:

   Application for annulment of the Commission’s decision of 23 September 2011 refusing to grant the applicant access to certain documents concerning approval of the project to construct a port in Granadilla (Tenerife, Spain), sent by the Spanish authorities to the Commission pursuant to Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7)

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Ecologistas en Acción-CODA is ordered to bear its own costs and to pay those incurred by the European Commission.

               3.

               The Kingdom of Spain is ordered to bear its own costs.

      (1)  OJ C 25, 28.1.2012.


title: Reference for a preliminary ruling by the Pretura Circondariale di Firenze, by order of that court of 20 June 1998, in criminal proceedings against Giovanni Carra, Alessandra Colombo and Barbara Gianassi (Case C-258/98)

text:
26.9.98              EN                 Official Journal of the European Communities                                 C 299/11
Appeal brought on 9 July 1998 by NV Koninklijke KNP                    judgment should be set aside. Moreover, the Court
BT against the judgment delivered on 14 May 1998 by the                contravened general principles of law, in particular the
Court of First Instance of the European Communities in                 principle of equal treatment and the principle of
Case T-309/94 between NV Koninklijke KNP BT and the                    proportionality, Article 190 of the EC Treaty and
         Commission of the European Communities                        Article 15(6) of Council Regulation No 17 by fixing a
                     (Case C-248/98 P)                                 fine on the basis of the Commission's alternative
                                                                       method', that is to say by applying, without specifying
                       (98/C 299/19)                                   more detailed reasons, a basic rate of 7,5 % for the
                                                                       period following 1989 as well,
An appeal against the judgment delivered on 14 May
1998 by the Court of First Instance of the European                Ð infringement of the rights of defence and the
Communities in Case T-309/94 between NV Koninklijke                    requirement to state reasons. The Court of First
KNP BT and the Commission of the European                              Instance infringed general principles of law, in
Communities was brought before the Court of Justice of                 particular the principle of equal treatment and the
the European Communities on 9 July 1998 by NV                          principle of proportionality, Article 190 of the EC
Koninklijke KNP BT, represented by T. R. Ottervanger,                  Treaty and Article 15 of Regulation No 17 by fixing a
with an address for service in Luxembourg at the                       fine on a basis which included the internal turnover of
Chambers of Loeff Claeys Verbeke, 56Ð58 rue Charles                    Badische, a German subsidiary of KNP,
Martel.
The appellant claims that the Court should:                        Ð contrary to Community law (principle of equal
                                                                       treatment, principle of proportionality, Article 190 of
                                                                       the EC Treaty and, above all, Article 15 of Regulation
1. set aside the judgment of the Court of First Instance of            No 17) the Court of First Instance, when itself fixing
    14 May 1998 in Case T-309/94 (1),                                  the fine, wrongly took mid-1986 as the date on which
                                                                       the infringement commenced as regards Badische as
                                                                       well.
2. annul the Commission Decision of 13 July 1994 (IV/
    33.833) and the fine imposed on the applicant, or
                                                                   (1) OJ C 209, 4.7.1998, p. 30.
    reduce the fine, in accordance with the application
    submitted on 7 October 1994 or, alternatively, refer
    the case back to the Court of First Instance for a
    ruling on the question whether that decision should (in
    part) be declared void,
3. order the Commission to pay the costs of proceedings            Reference for a preliminary ruling by the Pretura
    before the Court of First Instance and the Court of            Circondariale di Firenze, by order of that court of 20 June
    Justice.                                                       1998, in criminal proceedings against Giovanni Carra,
                                                                            Alessandra Colombo and Barbara Gianassi
Pleas in law and main arguments adduced in support:                                       (Case C-258/98)
                                                                                (98/C 299/20)
Ð The highly defective statement of reasons for the
    decision should have been grounds for the Court of
    First Instance to annul it. In particular, the decision
                                                                   Reference has been made to the Court of Justice of the
    gives no indication whatsoever of the method used by
                                                                   European Communities by an order of the Pretura
    the Commission used to determine a fine that is
                                                                   Circondariale di Firenze (Magistrate's Court, District of
    related to the turnover of the various undertakings for
                                                                   Florence) of 20 June 1998, which was received at the
    which KNP is held responsible and to the period
                                                                   Court Registry on 15 July 1998, for a preliminary ruling
    during which and the extent to which each of them
                                                                   in criminal proceedings against Giovanni Carra,
    was involved in an infringement. By giving no, or
                                                                   Alessandra Colombo and Barbara Gianassi on the
    inadequate, reasons why the Court did not annul the
                                                                   following questions:
    decision, the Court infringed Article 190 of the EC
    Treaty,
                                                                   (a) Whether Articles 86 and 90 of the EC Treaty, as
Ð in its judgment the Court should have dealt with                       interpreted by the judgment of the Court of Justice of
    KNP's plea that the Commission wrongly imposed a                     the European Communities of 11 December 1997 (1),
    fine for the period from 1989, or (alternatively) that as            have direct effect in the sense that they require
    involvement was marginal, the Commission should                      Member States not to impose any general and
    have imposed a much reduced fine. By wholly failing                  absolute prohibition of acting as an employment
    to dealing with those particular circumstances, the                  agency and consequently require the national court to
    Court infringed Article 190 of the EC Treaty and the                 treat any activity as a private intermediary for the
 ---pagebreak--- C 299/12                EN                 Official Journal of the European Communities                                   26.9.98
      placement of employees as not being contrary to                 payment of tolls by the user constitutes a supply of
      criminal law, with the result that the relevant                 services which must be subjected to value added tax. The
      penalising provisions of national law must be                   fact that that activity is carried out by public bodies does
      disapplied.                                                     not mean that it does not fall within the scope of VAT,
                                                                      since it constitutes an economic activity for the purposes
                                                                      of Article 2 of the sixth VAT Directive and is carried out
(b) Whether Articles 86 and 90 are to be interpreted as               by taxable persons within the meaning of Article 4 of that
      meaning that a system like that deriving from the               Directive, notwithstanding the fact that those persons are
      legislative amendments made by Law No 96 of                     public bodies.
      24 June 1997 and Legislative Decree No 469 of
      23 December 1997 constitutes an abuse of a
      dominant position.
                                                                      As regards the question of own resources, the Commission
                                                                      considers that, where the Sixth VAT Directive is infringed
( ) Case C-55/96 Job Centre [1997] ECR I-7119.
 1
                                                                      and consequently the base for the calculation of own
                                                                      resources is reduced, it must claim the amount of own
                                                                      resources which is owed by reason of that infringement.
                                                                      Otherwise the remaining Member States suffer financial
                                                                      loss and the principle of equality is infringed.
Action brought on 16 July 1998 by the Commission of the               (1) OJ L 145, 13.6.1977, p. 1.
    European Communities against the Hellenic Republic                (2) OJ L 155, 7.6.1989, p. 1.
                                                                      (3) OJ L 155, 7.6.1989, p. 9.
                          (Case C-260/98)
                           (98/C 299/21)
An action against the Hellenic Republic was brought
before the Court of Justice of the European Communities
on 16 July 1998 by the Commission of the European
Communities, represented by Dimitrios Goulousis, Legal                Action brought on 21 July 1998 by the Kingdom of the
Adviser, and HeÂleÁne Michard, of its Legal Service, with an               Netherlands against Commission of the European
address for service in Luxembourg at the office of Carlos                                       Communities
Gómez de la Cruz, of its Legal Service, Wagner Centre,                                       (Case C-278/98)
Kirchberg.
                                                                                (98/C 299/22)
The Commission claims that the Court should:
                                                                      An action against the Commission of the European
1. declare that, by failing, contrary to Articles 2 and 4 of          Communities was brought before the Court of Justice of
     the sixth Council Directive 77/388/EEC (1), to subject           the European Communities on 21 July 1998 by the
     to value added tax road tolls, which constitute                  Kingdom of the Netherlands, represented by Marc Fierstra
     consideration paid by the users in return for the                and Nynke Wijmenga, Assistant Legal Advisers at the
     supply to them of a service consisting of the making             Ministry of Foreign Affairs, the Hague.
     available of motorways and other road infrastructure,
     and, in addition, by avoiding in that way payment of
     own resources and of the interest due (Council
     Regulations (EEC, Euratom) No 1552/89 (2) and (EEC,              The applicant claims that the Court should:
     Euratom) No 1553/89 (3)), the Hellenic Republic has
     failed to fulfil its obligations under the EC Treaty;
                                                                      1. annul Commission Decision 98/358/EC (1) of 6 May
2. order the Hellenic Republic to make available to the                   1998 on the clearance of accounts presented by the
     Commission the own resources which have not been                     Member States in respect of the expenditure for 1994
     paid since 1987, together with interest for late                     of the Guarantee Section of the European Agricultural
     payment;                                                             Guidance and Guarantee Fund (notified under
                                                                          document number C(1998) 1124) (1), in so far as a
                                                                          sum of NLG 16 378 716,63 concerning expenditure
3. order the Hellenic Republic to pay the costs.                          on advance payments of export refunds is excluded
                                                                          from Community financing (reference C(98) 1124
                                                                          final);
Pleas in law and main arguments adduced in support:
According to the Commission, the grant of the right to use            2. order the Commission to pay the costs of the
a motorway or other road facility in return for the                       proceedings.


title: Case C-281/17: Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Thomas Schmidt v TUIfly GmbH

text:
               24.7.2017

               EN

               Official Journal of the European Union

               C 239/37

         Request for a preliminary ruling from the Amtsgericht Hannover (Germany) lodged on 18 May 2017 — Thomas Schmidt v TUIfly GmbH
   (Case C-281/17)
   (2017/C 239/47)
   Language of the case: German

      Referring court

   Amtsgericht Hannover

      Parties to the main proceedings

      Applicant: Thomas Schmidt

      Defendant: TUIfly GmbH

      Questions referred

               1.

               Is the absence on sick leave of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? (1) In the event that the first question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               2.

               In the event that the first question is answered in the negative: is the spontaneous absence, due to unauthorised work stoppage under employment law or collective agreements (‘wildcat strike’), of a significant part of an operating air carrier’s staff for flight operation an extraordinary circumstance under Article 5(3) of Regulation (EC) No 261/2004? In the event that the second question is answered in the affirmative: how high must the rate of absence be to constitute such an extraordinary circumstance?

               3.

               In the event that the first or the second question is answered in the affirmative: must the extraordinary circumstance itself have been present at the time the flight was cancelled or is the operating air carrier entitled to devise a new flight plan pursuant to economic considerations?

               4.

               In the event that the first or the second question is answered in the affirmative: does the avoidability criterion relate to the extraordinary circumstance or, rather, to the consequences of the occurrence of the extraordinary circumstance?

      (1)  Regulation (EC) No 261/2004 of the European Parliament and of the Council of 11 February 2004 establishing common rules on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91, OJ 2004 L 46, p. 1.


title: Case C-154/14 P: Appeal brought on 2 April 2014 by SKW Stahl-Metallurgie Holding AG, SKW Stahl-Metallurgie GmbH against the judgment delivered by the General Court (Third Chamber) on 23 January 2014 in Case T-384/09 SKW Stahl-Metallurgie Holding AG, SKW Stahl-Metallurgie GmbH v European Commission

text:
               26.5.2014

               EN

               Official Journal of the European Union

               C 159/20

         Appeal brought on 2 April 2014 by SKW Stahl-Metallurgie Holding AG, SKW Stahl-Metallurgie GmbH against the judgment delivered by the General Court (Third Chamber) on 23 January 2014 in Case T-384/09 SKW Stahl-Metallurgie Holding AG, SKW Stahl-Metallurgie GmbH v European Commission
   (Case C-154/14 P)
   2014/C 159/27
   Language of the case: German

      Parties

      Appellants: SKW Stahl-Metallurgie Holding AG, SKW Stahl-Metallurgie GmbH (represented by: Dr. A. Birnstiel and Dr. S. Janka, Rechtsanwälte)

      Other parties to the proceedings: Gigaset AG, European Commission

      Form of order sought

               1.

               Set aside in its entirety the judgment under appeal in so far as the appellants’ claims were thereby dismissed, and grant in its entirety the form of order sought at first instance;

               2.

               in the alternative, set aside in part the judgment under appeal;

               3.

               in the further alternative, reduce, as the Court sees fit, the fines imposed on the appellants under Article 2(f) and (g) of the European Commission’s decision on fines of 22 July 2009;

               4.

               in the further alternative, set aside the judgment under appeal and refer the case back to the General Court;

               5.

               in respect of points 1 to 4 above, order the respondent to pay the costs.

      Pleas in law and main arguments

   The appellants raise, in essence, four grounds of appeal:

               1.

               The judgment of the General Court is wrong in law and should be set aside because it disregards the fact that the respondent infringed fundamental procedural rights of the appellants, such as the right to a fair hearing, in the proceedings relating to the fines. By upholding the respondent’s assessment the General Court also acted in breach of the principle of proportionality and of the prohibition against the anticipatory assessment of evidence.

               2.

               Further, the General Court disregards the fact that the respondent’s decision and the fines set in various joint liability arrangements represents a misapplication of Article 101 TFEU and a breach of the respondent’s obligation to state reasons pursuant to Article 296 TFEU, so that the General Court also reached a decision that is wrong in law in its application of the concept of an economic unit and as regards the scope of the legal obligation to state reasons.

               3.

               By its judgment, and in upholding the respondent’s decision, the General Court also acted in breach of the principles that penalties must be clear and that they must be appropriate to the offender and to the offence.

               4.

               Lastly, the appellants complain that the General Court erred in law in its assessment that the appellants’ supplementary submission in the proceedings was new and therefore inadmissible even though the appellants had already raised corresponding complaints in their application.


title: Reference for a preliminary ruling from the Landgericht Hamburg by order of that court of 4 October 1995 in the case of V.A.G. Händlerbeirat e.V. v. SYD-Consult (Case C-41/96)

text:
No C 108 /4              EN                   Official Journal of the European Communities                                      13 . 4 . 96
right to a fair hearing, the right of each party to be heard, the        impervious merely in theory, or impervious in theory and in
principle of the equality of both parties before the court and           practice ?
the obligation to give an adequate statement of reasons . In
any event, the Court of First Instance failed :                          (') OJ 1985 L 15 , p . 16 .
— to allow the appellants access to the data on the basis of
       which the Commission determined the basic exchange
       rates used in order to fix the weightings referred to in the      Reference for a preliminary ruling from the Tribunale Civile
       Regulations at issue and, consequently, to enable the             e Penale di Venezia by order of that court of 2 February
       appellants to submit observations in that regard ,                         1996 in the case of Immobiliare S.I.F. SpA v.
                                                                                Amministrazione delle Finanze dello Stato
— to make an accurate and impartial examination of all the
       information relevant to the cases,                                                           ( Case C-42/ 96 )
                                                                                ( 96/C 108/07
— to take into account many of the arguments adduced by
       the appellants,                                                   Reference has been made to the Court of Justice of the
                                                                         European Communities by an order of the Tribunale Civile
— to give reasons — or, at any rate, to give adequate                    e Penale di Venezia ( Civil and Criminal Court, Venice ) of
       reasons — for its own decision, which is based on                 2 February 1996 , which was received at the Court Registry
       assertions which not only disregard the points made by            on 13 February 1 996 , for a preliminary ruling in the case of
       the appellants, but are also, in more than one instance,          Immobiliare S.I. F. SpA v. Amministrazione delle Finanze
       tautologous and/or subjective .                                   dello Stato, in which the Court is requested to :
The Court of First Instance has not only failed to comply                'give a ruling on the question concerning the application of
with obligations specifically incumbent upon it, but has                 Articles 4, 7 and 10 of Council Directive 69/335/EEC of
also, by making such a ruling, enabled a factual situation to            17 July 1969 (^ concerning indirect taxes on the raising of
persist which is contrary to Community law.                              capital, as amended by Council Directive 73/80/EEC of
                                                                         9 April 1973 ( 2 ) in the case brought by the plaintiff and on
(') OJ No L 383 of 29 . 12 . 1992 , p . 1 .                              whether the application of those provisions precludes the
( 2 ) Ibid ., p . 9 .                                                    charging of any other taxation, in particular the taxes
( 3 ) Ibid ., p . 11 .                                                   charged by the Italian Registry Office, including Invim
                                                                         (Imposta communale sull'incremento di valore dei beni
                                                                         immobili — municipal tax on the increase in value of
                                                                         immovables ); if so, is the applicable rate 2 % or the reduced
                                                                         rate ?'
Reference for a preliminary ruling from the Landgericht
Hamburg by order of that court of 4 October 1995 in the                  (') OJ, English Special Edition 1969 ( II ), p . 412 .
       case of V.A.G. Hàndlerbeirat e . V. v. SYD-Consult                ( 2 ) OJ 1973 L 103 , p . 15 .
                           ( Case C-41 /96 )
                             ( 96/C 108 /06 )
                                                                         Action brought on 15 February 1996 by the Federal
Reference has been made to the Court of Justice of the                   Republic of Germany against the Commission of the
European Communities by an order of the Landgericht                                           European Communities
( Regional Court) Hamburg of 4 October 1995 , which was                                               Case C-46/96 )
received at the Court Registry on 13 February 1996 , for a
preliminary ruling in the case of V.A.G. Hàndlerbeirat e.V.                                           ( 96/C 108/08 )
v . SYD-Consult on the following question:
                                                                         An action against the Commission of the European
                                                                         Communities was brought before the Court of Justice of the
in the light of the judgment of the Court of Justice of
                                                                         European Communities on 15 February 1 996 by the Federal
 13 January 1994 in Case C-376/92 Metro SB-Grotëmàrkte
v. Cartier, is it compatible with Community law, in
                                                                         Republic of Germany, represented by Ernst Rôder,
                                                                         Ministerialrat in the Federal Ministry of Economic
particular with the principle of the unrestricted and uniform            Affairs .
application of Community law, if German national law
applies in such a way that proceedings for an injunction                 The applicant claims that the Court should :
restraining the distribution of products covered by a
selective distribution system exempted from application of               — annul Decision (K 95 ) 3319 final of the Commission of
Article 85 ( 1 ) by a block exemption of the Commission of                     29 November 1995 concerning fiscal aid in the field of
the European Communities (') may be brought against                            depreciation favouring German undertakings ( J ),
outsiders who obtain those products outside such a selective
distribution system only if — in addition to satisfying the              — order the defendant to pay the costs .
 further requirements of Paragraph 1 of the Gesetz gegen den             Pleas in law and main arguments adduced in support:
 unlauteren Wettbewerb ( Law against Unfair Competition,
UWG ) — the selective distribution system is impervious                  Infringement of the EC Treaty ( the constituent criteria
 ( liickenlos ), specific reference being made to the alternative        laid down in Article 92 ( 1 ) of the EC Treaty are not
 of the selective distribution system being required to be               fulfilled ):


title: Judgment of the Court 10 July 2001 in Case C-315/99 P: Ismeri Europa Srl v Court of Auditors of the European Communities (Appeal — MED programmes — Special Report No 1/96 of the Court of Auditors — Principle of the right to a hearing — Naming of third parties — Necessity and proportionality)

text:
C 275/2                 EN                      Official Journal of the European Communities                                          29.9.2001
—     Council Regulation (EC) No 2800/98 of 15 December                    European Communities, (Agents: J.-M. Stenier, J. Inghelram
      1998 on transitional measures to be applied under                    and P. Giusta) — the Court, composed of: G.C. Rodrı́guez
      the common agricultural policy with a view to the                    Iglesias, President, C. Gulmann, M. Wathelet and V. Skouris
      introduction of the euro (OJ 1998 L 349, p. 8) and, more             (Presidents of Chambers), D.A.O. Edward, J.-P. Puissochet
      particularly, Articles 2 and 3 thereof;                              (Rapporteur), P. Jann, L. Sevón, R. Schintgen, F. Macken
                                                                           and C.W.A. Timmermans, Judges; D. Ruiz-Jarabo Colomer,
—     Council Regulation (EC) No 2799/98 of 15 December                    Advocate General; H. von Holstein, Deputy Registrar, for the
      1998 establishing agrimonetary arrangements for the                  Registrar, has given a judgment on 10 July 2001, in which it:
      euro (OJ 1998 L 349, p. 1) and, more particularly,
      Articles 4 and 5 thereof and the annex thereto, in                   1.    Dismisses the appeal;
      particular paragraphs 1 and 2 thereof;
                                                                           2.    Orders Ismeri Europa Srl to pay the costs.
—     Commission Regulation (EC) No 2808/98 of 22 Decem-
      ber 1998 laying down detailed rules for the application
      of the agrimonetary system for the euro in agriculture (OJ           (1) OJ C 333 of 20.11.1999.
      1998 L 349, p. 36); and
—     Commission Regulation (EC) No 2813/98 of 22 Decem-
      ber 1998 laying down detailed rules for applying the
      transitional measures for the introduction of the euro to
      the common agricultural policy (OJ 1998 L 349, p. 48),
the Court (Fifth Chamber), composed of: A. La Pergola,                                      JUDGMENT OF THE COURT
President of the Chamber, M. Wathelet, D.A.O. Edward, P. Jann
(Rapporteur) and L. Sevón, Judges; F.G. Jacobs, Advocate                                             of 12 July 2001
General; H.A. Rühl, Principal Administrator, for the Registrar,
has given a judgment on 5 July 2001, in which it:                          in Case C-368/98 (reference for a preliminary ruling from
                                                                           the Cour du travail de Mons): Abdon Vanbraekel and
1.    Dismisses the application;                                           Others v Alliance nationale des mutualités chrétiennes
                                                                                (ANMC) (1)
2.    Orders the Italian Republic to pay the costs.
                                                                           (Social security — Sickness insurance — Articles 22 and 36
                                                                           of Regulation (EEC) No 1408/71 — Freedom to provide
(1) OJ C 160 of 5.6.1999.                                                  services — Article 59 of the EC Treaty (now, after amend-
                                                                           ment, Article 49 EC) — Hospital treatment costs incurred in
                                                                           another Member State — Refusal of authorisation sub-
                                                                                sequently declared unfounded)
                                                                                (2001/C 275/04)
                                                                                (Language of the case: French)
                 JUDGMENT OF THE COURT                                     (Provisional translation; the definitive translation will be published
                            10 July 2001                                                      in the European Court Reports)
in Case C-315/99 P: Ismeri Europa Srl v Court of Auditors                  In Case C-368/98: reference to the Court under Article 177 of
               of the European Communities (1)                             the EC Treaty (now Article 234 EC) from the Cour de
                                                                           travail de Mons (Higher Labour Court, Mons) Belgium for a
(Appeal — MED programmes — Special Report No 1/96 of                       preliminary ruling in the proceedings pending before that
the Court of Auditors — Principle of the right to a hearing                court between Abdon Vanbraekel and Others and Alliance
— Naming of third parties — Necessity and proportionality)                 nationale des mutualités chrétiennes (ANMC) — on the
                                                                           interpretation of Articles 22 and 36 of Council Regulation
                          (2001/C 275/03)                                  (EEC) No 1408/71 of 14 June 1971 on the application of
                                                                           social security schemes to employed persons, to self-employed
                    (Language of the case: Italian)
                                                                           persons and to members of their families moving within the
(Provisional translation; the definitive translation will be published     Community, in the version amended and updated by Council
                   in the European Court Reports)                          Regulation (EEC) No 2001/83 of 2 June 1983 (OJ 1983 L 230,
                                                                           p. 6), and of Article 59 of the EC Treaty (now, after amendment,
In Case C-315/99 P: Ismeri Europa Srl, established in Rome                 Article 49 EC) — the Court, composed of: G.C. Rodrı́guez
(Italy), represented by S. Ristuccia and G.L. Tosato, avvocati,            Iglesias, President, C. Gulmann, A. La Pergola (Rapporteur),
appeal against the judgment of the Court of First Instance of              M. Wathelet and V. Skouris (Presidents of Chambers),
the European Communities (Third Chamber) of 15 June 1999                   D.A.O. Edward, J.-P. Puissochet, P. Jann, L. Sevón, R. Schintgen
in Case T-277/97 Ismeri Europa v Court of Auditors [1999]                  and F. Macken, Judges; A. Saggio, Advocate General; H.A. Rühl,
ECR II-1825) seeking to have that judgment set aside, the                  Principal Administrator, for the Registrar, has given a judgment
other party to the proceedings being: Court of Auditors of the             on 12 July 2001, in which it has ruled: