title: Case T-333/00: Action brought on 3 November 2000 by Rougemarine SARL against Commission of the European Communities

text:
C 372/16              EN                     Official Journal of the European Communities                                   23.12.2000
Pleas in law and main arguments                                         The applicants claim that the Court should:
                                                                        —     annul the decisions of the Authority Empowered to
The applicants are former temporary agents working for the                    Conclude Contracts (AECC) of 16 March 2000, 3 Februa-
Commission at the Joint Research Centre (JRC) at Ispra, Italy.                ry 2000, 17 March 2000, 17 January 2000 and 16 March
                                                                              2000 not to accept the applicants’ candidature for the
                                                                              posts advertised in vacancy notices COM/R/5526/00 of
By the contested decisions, the Commission informed the                       24 February 2000, COM/R/5889/99 of 21 December
applicants that their applications for the two vacant posts had               1999, COM/R/5520/00 of 24 February 2000,
not been taken into consideration.                                            COM/R/5863/99 of 26 November 1999 and
                                                                              COM/R/5521/00 of 24 February 2000, or, in the alterna-
                                                                              tive, to annul those vacancy notices and, in so far as
The applicants criticise the Commission for having given                      necessary, annul the decision of the AECC of 25 July
priority to applications from officials, which were examined                  2000 rejecting the applicants’ complaints;
and compared on their own, without those of temporary
agents, including the candidatures of the applicants, being             —      order the defendant to pay one euro by way of damages
examined at the same time. By failing to consider the
                                                                              for the damage suffered as a result of that decision, such
comparative merits of all the candidatures, the Commission
                                                                              sum being set ex aequo et bono and provisionally;
infringed Articles 4, 7, 27, 29 and 45 of the Staff Regulations
and Article 12 of the Conditions of Employment of other
servants and breached the principle of non-discrimination.              —     order the defendant to pay the whole of the costs.
Moreover, the applicants claim that the contested decisions are
                                                                        Pleas in law and main arguments
devoid of any formal statement of reasons. Furthermore, they
were not taken in the interest of the service and are not
compatible with the new policy of the Commission vis-à-vis              The pleas in law and main arguments are similar to those
research staff. Finally, the applicants take the view that the          relied on in Case T-330/00 Cocchi and Heinz v Commission.
contested decisions are acts of mismanagement and are
contrary to the duty of the administration to have regard for
the welfare of officials.
                                                                        Action brought on 3 November 2000 by Rougemarine
                                                                        SARL against Commission of the European Communities
                                                                                (Case T-333/00)
Action brought on 26 October 2000 by Laurence Bories
and 4 others against Commission of the European Com-
                            munities                                                            (2000/C 372/33)
                         (Case T-331/00)                                                  (Language of the case: French)
                                                                        An action against the Commission of the European Communi-
                         (2000/C 372/32)
                                                                        ties was brought before the Court of First Instance of the
                                                                        European Communities on 3 November 2000 by Rougemarine
                                                                        SARL, whose registered office is at Paris, represented by
                                                                        Thierry Levy, of the Paris Bar.
                  (Language of the case: French)
                                                                        The applicant claims that the Court should:
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
                                                                        —     annul in its entirety the decision of the Commission of
European Communities on 26 October 2000 by Laurence
                                                                              the European Communities of 5 September 2000;
Bories and Philippe Chemin, Laura Copes, Emanuele Mondini
and Helen Preissler, residing in Italy, represented by Georges
Vandersanden and Laure Levi, of the Brussels Bar.                       —     annul Council Decision 95/563/EC of 10 July 1995;
 ---pagebreak--- 23.12.2000             EN                     Official Journal of the European Communities                                      C 372/17
—     order the Commission to pay FRF 1 604 735 241                      Action brought on 7 November 2000 by Carmelo Morello
      (EUR 24 463 867) by way of damages for the harm                      against the Commission of the European Communities
      suffered by Rougemarine as a result of such discrimi-
      nation;
                                                                                (Case T-338/00)
—     order the Commission to pay the costs.                                                     (2000/C 372/34)
                                                                                (Language of the case: French)
Pleas in law and main arguments
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
The applicant in the present case is an audiovisual production           European Communities on 7 November 2000 by Carmelo
undertaking belonging to the RCS in Paris whose managing                 Morello, residing in Brussels, represented by Jacques Sambon
director and majority shareholder is a Tunisian national.                and Pierre Paul Van Gehuchten, of the Brussels Bar.
                                                                         The applicant claims that the Court should:
The action seeks the annulment of the decision of the
Commission of 5 September 2000 which refused the applicant               —     annul the Commission’s decision appointing another
the financial support which it had requested in the context of                 official to post COM/113/99 IV/F/2 ‘Motor vehicles
the MEDIA II programme, the objective of which is, among                       and other means of transport’, corresponding to a
others, to encourage the development and distribution of                       grade A5/A4 post of Head of Unit;
European audiovisual works pursuant to Council Decision
95/563/EC of 10 July 1995 on the implementation of a
programme encouraging the development and distribution of                —     annul the Commission’s decision rejecting the application
European audiovisual works (Media II — Development and                         of the applicant for that post;
distribution) (1996-2000). (1)
                                                                         —     award the sum of 120 000 euro, subject to increase or
                                                                               decrease during the course of the proceedings, by way of
In support of its claims, the applicant undertaking states, first,             compensation for the non-material damage suffered by
that the contested decision, which is based on the fourth                      the applicant as a result of the irregular or incomplete
paragraph of Article 3 of Council Decision 95/563/EC, cited                    information gathered by the defendant in relation to the
above, is unlawful, in that it discriminates between European                  applicant’s personal file and the state of uncertainty and
audiovisual production undertakings on the basis of the                        worry in which he has been placed with regard to his
nationality of its managing directors, which is contrary to                    future career;
Article 12 of the EC Treaty. In fact, according to the fourth
paragraph of Article 3, the businesses benefitting from the              —     award the sum of 25 000 euro, subject to increase or
programme must be in the possession and continue to be in                      decrease during the course of the proceedings, by way of
the possession, whether directly, or by majority participation,                compensation for the material damage suffered by the
of the Member States and/or of nationals from Member States.                   applicant as a result of his having been rejected as a
That provision is also contrary to the principle of equality, as               candidate for the post to be filled and of his having thus
laid down in the case-law of the Court of Justice. The applicant               lost an opportunity of promotion;
considers, in that respect, that the differentiation criterion used
is not objectively justified.
                                                                         —     order the Commission to pay all the costs.
Additionally, the applicant undertaking requests, on the basis
of Article 241 of the Treaty, that Council Decision 95/563/EC            Pleas in law and main arguments
be declared unlawful.
                                                                         The pleas in law and main arguments are similar to those in
                                                                         Cases T-135/00 and T-136/00 Morello v Commission (1).
(1) OJ 1995 L 321, p. 25.
                                                                         (1) OJ C 211, 22.7.2000, pp. 23 and 24.


title: Case T-209/13: Action brought on 12 April 2013 — Olive Line International v OHIM (OLIVE LINE)

text:
               22.6.2013

               EN

               Official Journal of the European Union

               C 178/11

         Action brought on 12 April 2013 — Olive Line International v OHIM (OLIVE LINE)
   (Case T-209/13)
   2013/C 178/21
   Language of the case: Spanish

      Parties

      Applicant: Olive Line International, SL (Madrid, Spain) (represented by: M. Aznar Alonso, lawyer)

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

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 31 January 2013 in Case R 1447/2012-1;

               —

               order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: Figurative mark representing a green quadrangular bottle including the words ‘OLIVE LINE’ for goods in Class 29 — International registration no 1 088 753 designating the European Community

      Decision of the Examiner: Application rejected

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 7(1)(b) of Regulation No 207/2009


title: Case F-80/09: Judgment of the Civil Service Tribunal (First Chamber) of 14 December 2010 — Lenz v Commission (Civil service — Officials — Social security — Reimbursement of the costs of treatment provided by a Heilpraktiker — Principle of non-discrimination)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/61

         Judgment of the Civil Service Tribunal (First Chamber) of 14 December 2010 — Lenz v Commission
   (Case F-80/09) (1)

   (Civil service - Officials - Social security - Reimbursement of the costs of treatment provided by a ‘Heilpraktiker’ - Principle of non-discrimination)
   2011/C 30/117
   Language of the case: German

      Parties

      Applicant: Erika Lenz (Osnabrük, Germany) (represented by: initally, V. Lenz and J. Römer, lawyers, and subsequently, V. Lenz, J. Römer and P. Birden, lawyers)

      Defendant: European Commission (represented by: J. Currall and B. Eggers, agents)

      Re:

   Application for annulment of the Commission’s decision of 4 May 2009 not to reimburse the costs of medical treatment provided by a ‘Heilpraktiker’.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the action of Mrs Lenz.

               2.

               Orders Mrs Lenz to pay the costs.

      (1)  OJ C 282, 21.11.2009, p. 66.


title: Case C-60/04: Actionbrought on 12 February 2004 by the Italian Republicagainst the Commission of the European Communities

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 106/19

         Action brought on 12 February 2004 by the Italian Republic against the Commission of the European Communities
   (Case C-60/04)
   (2004/C 106/34)
   An action against the Commission of the European Communities was brought before the Court of Justice of the European Communities on 12 February 2004 by the Italian Republic represented by I.M. Braguglia, avvocato, acting as Agent, and A. Cingolo, Avvocato dello Stato.
   The applicant claims that the Court should:

               —

               Annul Commission Decision No C(2003) 3971 final. of 26 November 2003 which establishes indicative allocations between the Member States of the commitment appropriations under Community initiatives for the period 1994-1999, notified by Letter No SG(2003)D233063 of the Secretary-General of the Commission of 26 November 2003 to the Italian Permanent Representation to the European Union;

               —

               Annul all annexes and supporting documents;

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments:
   I –   Incorrect legal basis

               I A –

               Incorrect legal basis: lack of competence and in any event absence of the preconditions for the application of Article 12 of Regulation (EEC) No 2052/88 (1) during the preceding programme;

               I B1 –

               Incorrect legal basis: complete lack of competence to amend the indicative allocations at the date of the new decision;

               I B2 –

               Incorrect legal basis: total failure to identify the correct procedure.

         II –   Inadequate and contradictory statement of reasons for the contested decision: general

               II A –

               Inadequate and contradictory statement of reasons as regards the choice of committee procedure for adoption of the contested decision;

               II B –

               Inadequate and contradictory statement of reasons in the contested decision as regards the method for calculating the new indicative allocation;

               II C –

               Inadequate and contradictory statement of reasons as regards the difference between the reference tables annexed to the new and old decisions;

               II D –

               Inadequate and contradictory statement of reasons as regards the reference date for assessing the extent to which the Community initiative programme (CIP) 1994-1999 has been implemented.

      (1)  OJ 1988 L 185 of 15.7.1988, p. 9.


title: Case C-57/99 P: Appeal brought on 19 February 1999 by Karola Gluiber against the order made on 21 December 1998 by the First Chamber of the Court of First Instance of the European Communities in Case T-122/98 Karola Gluiber versus Council of the European Union and Commission of the European Communities

text:
15.5.1999             EN                     Official Journal of the European Communities                                         C 136/7
Appeal brought on 19 February 1999 by Karola Gluiber                    Pleas in law and main arguments
against the order made on 21 December 1998 by the First
Chamber of the Court of First Instance of the European                  — The Court of First Instance wrongly declared that the
Communities in Case T-122/98 Karola Gluiber versus                          claim, based on Article 173 of the EC Treaty and Article
Council of the European Union and Commission of the                         215 of the EC Treaty in conjunction with Article 5 of the
                    European Communities                                    Treaty on European Union, was inadmissible on the
                                                                            ground that the contested acts fell within the competence
                                                                            of a Member State. In the case of a community based on
                        (Case C-57/99 P)                                    law, such as the European Union, it is inappropriate to
                                                                            draw a distinction between acts of a Member State and acts
                                                                            of the Community. Directives constitute legal acts which
                        (1999/C 136/10)                                     impose on the Member States a duty to transpose the
                                                                            objectives fixed by the Commission or the Council. In the
An appeal against the order made on 21 December 1998 by                     event of failure properly to transpose a directive, it is
the first Chamber of the Court of First Instance of the European            incumbent upon the Court of Justice to intervene with a
Communities in Case T-122/98 Karola Gluiber versus Council                  view to rectifying the situation.
of the European Union and Commission of the European                    — Breach of the principle of the right to a fair hearing: the
Communities was brought before the Court of Justice of the                  contested order was made without the application having
European Communties on 19 February 1999 by Karola                           been notified to the defendant. In addition, that order
Gluiber, represented by Dieter Rogalla, Rechtsanwalt, with an               was made without any oral procedure taking place in
address for service in Luxembourg at the Chambers of Messrs                 accordance with Article 55 of the Rules of Procedure.
Decker & Braun, Avenue Marie-Thérèse, L-2013 Luxembourg.
The appellant claims that the Court should:
— set aside the order made by the Court of First Instance of            Reference for a preliminary ruling by the Finanzgericht
    the European Communities on 21 December 1998 in Case                Bremen by order of 2 February 1999 in the case of
    T-122/98;                                                                     D. Wandel GmbH v Hauptzollamt Bremen
— declare null and void the individual measures which                                            (Case C-66/99)
    unlawfully discriminate against the appellant on the
    ground of her sex;                                                                          (1999/C 136/11)
                                                                        Reference has been made to the Court of Justice of the
— order the respondent to retract and terminate, in accord-             European Communities by order of 2 February 1999 from the
    ance with the rules laid down by the Treaty on European             Second Chamber of the Finanzgericht Bremen (Finance Court,
    Union, the discriminatory measures taken against the                Bremen), which was received at the Court Registry on 25 Feb-
    appellant by the Federal Republic of Germany, as a Member           ruary 1999, for a preliminary ruling in the case of D. Wandel
    State of the Community, and by its federal organs;                  GmbH v Hauptzollamt Bremen on the following questions:
— order the respondent to pay to the appellant the total sum            1. Is Article 201(1)(a), in conjunction with Article 201(2),
    of DEM 18 700,32, being the expense incurred by the                     of the Council Regulation (EEC) of 12 October 1992
    appellant in the proceedings brought by her to no avail                 establishing the Community Customs Code (OJ L 302,
    before the German courts;                                               19.10.1992, p. 1) (‘the Customs Code’) to be construed as
                                                                            meaning that a customs debt on importation is incurred
                                                                            once a customs declaration for the release of non-
— order the respondent to pay the costs of the present                      Community goods into free circulation satisfying the
    proceedings;                                                            requirements of Article 62 of the Customs Code has
                                                                            been accepted by the competent customs office and that
— alternatively, stay the proceedings pursuant to Article                   acceptance is evidenced by the attachment of a customs
    82a(1)(b) of the Rules of Procedure of the Court of Justice             registration stamp?
    pending receipt of a preliminary ruling by the European
    Court of Human Rights concerning the finding that the               2. If Question 1 is answered in the affirmative:
    incomplete transposition into German law of Council                     Is Article 75 of the Customs Code to be construed as
    Directive 76/207/EEC infringes                                          meaning that the customs office which has accepted such
                                                                            a customs declaration is entitled to treat the declaration as
    (a) Article 6 of the European Convention on Human                       invalid or to invalidate it without a request by the declarant
         Rights (‘ECHR’);                                                   to that end, with the result that a customs debt incurred
                                                                            under Article 201(1)(a) of the Customs Code is deemed
                                                                            not to have been incurred or is extinguished under the first
    (b) article 11 of the ECHR;                                             indent of Article 233(c) of the Customs Code, if the
                                                                            declared goods cannot be released to the declarant because
    (c) article 14 of the ECHR; and                                         they were removed, before the customs examination
                                                                            ordered was carried out, from their prescribed place of
                                                                            storage and from the area for which the customs office is
    (d) article 50 of the ECHR.                                             responsible?


title: Case C-390/15: Judgment of the Court (Grand Chamber) of 7 March 2017 (request for a preliminary ruling from the Trybunał Konstytucyjny w Warszawie — Poland) — proceedings brought by the Rzecznik Praw Obywatelskich (RPO) (Reference for a preliminary ruling — Taxation — Value added tax (VAT) — Directive 2006/112/EC — Point 6 of Annex III — Validity — Procedure — Amendment of a proposal for a Council directive after the Parliament has given an opinion — No fresh consultation of the Parliament — Article 98(2) — Validity — Reduced rate of VAT precluded from being applied to the supply of digital books electronically — Principle of equal treatment — Comparability of two situations — Supply of digital books electronically and on all physical means of support)

text:
               8.5.2017

               EN

               Official Journal of the European Union

               C 144/5

         Judgment of the Court (Grand Chamber) of 7 March 2017 (request for a preliminary ruling from the Trybunał Konstytucyjny w Warszawie — Poland) — proceedings brought by the Rzecznik Praw Obywatelskich (RPO)
   (Case C-390/15) (1)

   ((Reference for a preliminary ruling - Taxation - Value added tax (VAT) - Directive 2006/112/EC - Point 6 of Annex III - Validity - Procedure - Amendment of a proposal for a Council directive after the Parliament has given an opinion - No fresh consultation of the Parliament - Article 98(2) - Validity - Reduced rate of VAT precluded from being applied to the supply of digital books electronically - Principle of equal treatment - Comparability of two situations - Supply of digital books electronically and on all physical means of support))
   (2017/C 144/06)
   Language of the case: Polish

      Referring court

   Trybunał Konstytucyjny w Warszawie

      Parties to the main proceedings

      Applicant: Rzecznik Praw Obywatelskich (RPO)

      Other parties: Marszałek Sejmu Rzeczypospolitej Polskiej, Prokurator Generalny

      Operative part of the judgment

   Examination of the questions referred for a preliminary ruling has disclosed no factor of such a kind as to affect the validity of point 6 of Annex III to Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax, as amended by Council Directive 2009/47/EC of 5 May 2009, or of Article 98(2) of that directive, read in conjunction with point 6 of Annex III thereto.

      (1)  OJ C 346, 19.10.2015.


title: Judgment of the Court (Second Chamber) of  10 January 2006  in Case C-222/04: Reference for a preliminary ruling from the Corte suprema di cassazione in Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA, Fondazione Cassa di Risparmio di San Miniato, Cassa di Risparmio di San Miniato SpA (State aid — Articles 87 EC and 88 EC — Banks — Banking foundations — Meaning of  undertaking  — Relief from direct tax on dividends received by banking foundations — Categorisation as State aid — Compatibility with the common market — Commission Decision 2003/146/EC — Determination of validity — Inadmissibility — Articles 12 EC, 43 EC and 56 EC — Principle of non-discrimination — Freedom of establishment — Free movement of capital)

text:
               25.2.2006

               EN

               Official Journal of the European Union

               C 48/6

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 10 January 2006
   in Case C-222/04: Reference for a preliminary ruling from the Corte suprema di cassazione in Ministero dell'Economia e delle Finanze v Cassa di Risparmio di Firenze SpA, Fondazione Cassa di Risparmio di San Miniato, Cassa di Risparmio di San Miniato SpA (1)

   (State aid - Articles 87 EC and 88 EC - Banks - Banking foundations - Meaning of ‘undertaking’ - Relief from direct tax on dividends received by banking foundations - Categorisation as State aid - Compatibility with the common market - Commission Decision 2003/146/EC - Determination of validity - Inadmissibility - Articles 12 EC, 43 EC and 56 EC - Principle of non-discrimination - Freedom of establishment - Free movement of capital)
   (2006/C 48/11)
   Language of the case: Italian
   In Case C-222/04: reference for a preliminary ruling under Article 234 EC from the Corte suprema di cassazione (Italy), made by decision of 23 March 2004, received at the Court on 28 May 2004, in the proceedings between Ministero dell'Economia e delle Finanze and Cassa di Risparmio di Firenze SpA, Fondazione Cassa di Risparmio di San Miniato, Cassa di Risparmio di San Miniato SpA — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, C. Gulmann (Rapporteur), R. Schintgen, R. Silva de Lapuerta and G. Arestis, Judges; F.G. Jacobs, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 10 January 2006, in which it ruled:

               1.

               A legal person such as that in question in the main proceedings can, after an examination which it is for the national court to conduct, on account of the regime applicable to the period concerned, be treated as an ‘undertaking’ within the meaning of Article 87(1) EC, and, as such, subject at that period to the Community rules relating to State aid.

               2.

               An exemption from retention on dividends such as that in question in the main proceedings can, after an examination which it is for the national court to conduct, be categorised as State aid within the meaning of Article 87(1) EC.

      (1)  OJ C 190 of 24.07.2004.


Important legal notice

|

E2000P0005

Request for an Advisory Opinion from the EFTA Court by Verwaltungsbeschwerdeinstanz des Fürstentums Liechtenstein (Administrative Court for the Principality of Liechtenstein) by decision of that court of 13 June 2000 in the case of Dr Josef Mangold (Case E-5/00)

Official Journal C 049 , 15/02/2001 P. 0008 - 0008

Request for an Advisory Opinion from the EFTA Court by Verwaltungsbeschwerdeinstanz des Fürstentums Liechtenstein (/Administrative Court for the Principality of Liechtenstein) by decision of that court of 13 June 2000 in the case of Dr Josef Mangold(Case E-5/00)(2001/C 49/12)A request has been made to the EFTA Court by decision of 13 June 2000 of Verwaltungsbeschwerdeinstanz des Fürstentums Liechtenstein (/Administrative Court for the Principality of Liechtenstein), which was received at the Court Registry on 21 June 2000, for an Advisory Opinion in the case of Dr Josef Mangold, on the following question:Is the single practice rule applying without exception to all dentists under Liechtenstein national law, and in particular Article 23(1) of the Regulation of 8 November 1988 on the medical professions which provides: "A dentist may pursue his profession in a self-employed capacity, as a sole practitioner or jointly with others, only if he holds a licence authorising him to carry on his profession on a self-employed basis and only if he himself works in the pratice concerned. A dentist may not operate more than one practice, whether as a sole practitioner or jointly with other doctors" compatible with the EEA and/or with the Agreement on the European Economic Area (EEA Agreement) of 2 May 1992?


title: Case T-177/13: Judgment of the General Court of 15 December 2016 — TestBioTech and Others v Commission (Environment — Genetically modified products — Genetically modified soybean MON 87701 x MON 89788 — Request for internal review of the decision on marketing authorisation dismissed as unfounded — Obligation to state reasons — Manifest error of assessment)

text:
               6.2.2017

               EN

               Official Journal of the European Union

               C 38/24

         Judgment of the General Court of 15 December 2016 — TestBioTech and Others v Commission
   (Case T-177/13) (1)

   ((Environment - Genetically modified products - Genetically modified soybean MON 87701 x MON 89788 - Request for internal review of the decision on marketing authorisation dismissed as unfounded - Obligation to state reasons - Manifest error of assessment))
   (2017/C 038/31)
   Language of the case: English

      Parties

      Applicants: TestBioTech eV (Munich, Germany), European Network of Scientists for Social and Environmental Responsibility eV (Braunschweig, Germany), Sambucus eV (Vahlde, Germany) (represented by: K. Smith, QC, and J. Stevenson, Barrister)

      Defendant: European Commission (represented initially by C. Cattabriga and P. Oliver, and subsequently by P. Cattabriga and L. Flynn and, lastly, by C. Cattabriga, L. Flynn and C. Valero, acting as Agents)

      Interveners in support of the defendant: United Kingdom of Great Britain and Northern Ireland (represented initially by E. Jenkinson and L. Christie, and subsequently by L. Christie and, lastly, by S. Brandon, acting as Agents, and by J. Holmes, Barrister), European Food Safety Authority (EFSA) (represented by D. Detken and S. Gabbi, acting as Agents) and Monsanto Europe (Antwerp, Belgium) and Monsanto Company (Wilmington, United States) (represented by: M. Pittie, lawyer)

      Re:

   Application pursuant to Article 263 TFEU for annulment of the decision of the European Commission of 8 January 2013, concerning the review of Commission Implementing Decision 2012/347/EU of 28 June 2012 authorising the placing on the market of products containing, consisting of, or produced from genetically modified soybean MON 87701 x MON 89788 (MON-877Ø1-2 x MON-89788-1), pursuant to Regulation (EC) No 1829/2003 of the European Parliament and of the Council (OJ 2012 L 171, p. 13).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders TestBioTech eV, European Network of Scientists for Social and Environmental Responsibility eV and Sambucus eV to bear their own costs and to pay those incurred by the European Commission;

               3.

               Orders the United Kingdom of Great Britain and Northern Ireland, the European Food Safety Authority (EFSA) and Monsanto Europe and Monsanto Company to bear their own costs.

      (1)  OJ C 178, 22.6.2013.


title: Case C-262/00: Reference for a preliminary ruling by the Hessisches Finanzgericht by order of that court of 21 February 2000 in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion Koblenz

text:
C 273/6                 EN                      Official Journal of the European Communities                                          23.9.2000
Case C-418/97                                                                    set out in Article 1(a) of Directive 75/442, as amended by
                                                                                Directive 91/156, that is to say the discarding of the substance
                                                                                in question or the intention or requirement to discard it, regard
1.  It may not be inferred from the mere fact that a substance such              being had to the aim of the directive and the need to ensure that
    as LUWA-bottoms undergoes an operation listed in Annex IIB                   its effectiveness is not undermined.
    to Council Directive 75/442/EEC of 15 July 1975 on waste,
    as amended by Council Directive 91/156/EEC of 18 March                       For the purpose of determining whether the use of a substance
    1991, that that substance has been discarded so as to enable it              such as wood chips as fuel is to be regarded as constituting
    to be regarded as waste for the purposes of that directive.                  discarding, it is irrelevant that that substance may be recovered
                                                                                in an environmentally responsible manner for use as fuel
                                                                                without substantial treatment.
2.  For the purpose of determining whether the use of a substance
                                                                                The fact that that use as fuel is a common method of recovering
    such as LUWA-bottoms as a fuel is to be regarded as
                                                                                waste and the fact that that substance is commonly regarded as
    constituting discarding, it is irrelevant that that substance may
                                                                                waste may be taken as evidence that the holder has discarded
    be recovered in an environmentally responsible manner for use
                                                                                that substance or intends or is required to discard it within the
    as fuel without substantial treatment.
                                                                                meaning of Article 1(a) of Directive 75/442, as amended by
                                                                                Directive 91/156. However, whether it is in fact waste within
                                                                                the meaning of that directive must be determined in the light of
    The fact that that use as fuel is a common method of recovering              all the circumstances, regard being had to the aim of the
    waste and the fact that that substance is commonly regarded as               directive and the need to ensure that its effectiveness is not
    waste may be taken as evidence that the holder has discarded                 undermined.
    that substance or intends or is required to discard it within the
    meaning of Article 1(a) of Directive 75/442, as amended by
    Directive 91/156. However, whether it is in fact waste within          (1) OJ C 41 of 7.2.1998. OJ C 55 of 20.2.1998.
    the meaning of the directive must be determined in the light of
    all the circumstances, regard being had to the aim of the
    directive and the need to ensure that its effectiveness is not
    undermined.
    The fact that a substance used as fuel is the residue of the
    manufacturing process of another substance, that no use for            Reference for a preliminary ruling by the Hessisches
    that substance other than disposal can be envisaged, that the          Finanzgericht by order of that court of 21 February
    composition of the substance is not suitable for the use made of       2000 in the case of Lohmann GmbH & Co. KG v
    it or that special environmental precautions must be taken when                           Oberfinanzdirektion Koblenz
    it is used may be regarded as evidence that the holder has
    discarded that substance or intends or is required to discard it
    within the meaning of Article 1(a) of that directive. However,                                     (Case C-262/00)
    whether it is in fact waste within the meaning of the directive
    must be determined in the light of all the circumstances, regard                                   (2000/C 273/10)
    being had to the aim of the directive and the need to ensure that
    its effectiveness is not undermined.
                                                                           Reference has been made to the Court of Justice of the
                                                                           European Communities by order of the Hessisches Finanzge-
                                                                           richt (Finance Court, Hessen) of 21 February 2000, received at
Case C-419/97                                                              the Court Registry on 28 June 2000, for a preliminary ruling
                                                                           in the case of Lohmann GmbH & Co. KG v Oberfinanzdirektion
                                                                           Koblenz (Principal Revenue Office, Koblenz) on the following
                                                                           questions:
1.  It may not be inferred from the mere fact that a substance such
    as wood chips undergoes an operation listed in Annex IIB to            1.    Does the description ‘orthopaedic appliances’ within the
    Directive 75/442, as amended by Directive 91/156, that that                  meaning of CN Code No 9021 cover an elbow bracelet,
    substance has been discarded so as to enable it to be regarded               called epX Elbow Basic, and an elbow support, called epX
    as waste for the purposes of the directive.                                  Elbow Dynamic, made of 1 mm-thick three-layer material
                                                                                in a single colour, with a synthetic central layer enclosed
                                                                                between two elastic membranes; tubular in shape and
2.  The fact that a substance is the result of a recovery operation              manufactured by sewing together, with a length of 8 cm
    within the meaning of Annex IIB to that directive is only one                (elbow bracelet) and 22 cm (elbow support, the latter
    of the factors which must be taken into consideration for the                being also anatomically sewn), each being pulled over the
    purpose of determining whether that substance is still waste,                lower arm below the elbow and worn as a sleeve, with an
    and does not as such permit a definitive conclusion to be drawn              integrated insert, over which is passed a circular strap
    in that regard. Whether it is waste must be determined in the                with an elastic and a non-elastic part and a Velcro
    light of all the circumstances, by comparison with the definition            fastening?
 ---pagebreak--- 23.9.2000              EN                   Official Journal of the European Communities                                       C 273/7
2.    Does the term ‘solely’, used in Note 1(b) to CN Chapter               ‘recipients’. They could not therefore be aware, on the
      90 and in Note 2(b) to CN Chapters 61 and 62 allow the                basis of the decision of 5 August 1997 opening the
      elasticity of the material to be regarded as the sole                 inquiry procedure, that they would one day be regarded
      relevant criterion even if the supportive function is                 in a Commission decision as ‘recipients’ of aid which
      strengthened by other factors (in this case the insert)?              certainly never flowed to them directly.
3.    If Question 2 is answered in the affirmative:
      Is General Rule A.3(b) in the General rules for the
      interpretation of the combined nomenclature suitable for
      determining the question when the supportive function            Compatibility with the common market of
      of the other factors, not made of elastic material, is           the aid granted to System Microelectronic
      predominant, or what other criteria should be used to            Innovation GmbH i.GV (SMI) and Silicium
      determine the question?                                          Microelectronic Integration GmbH (SiMI)
                                                                       —    Breach of essential procedural requirements (errors in
                                                                            ascertaining the facts, defective statement of reasons):
                                                                            findings that Synergy Semiconductor Corporation (Syn-
                                                                            ergy) was to take over, and did take over, management
Action brought on 11 July 2000 by the Federal Republic                      and control of Halbleiterelektronik Frankfurt/Oder GmbH
of Germany against the Commission of the European                           (HEG), later renamed SMI, cannot be found at all in the
                          Communities                                       contested decision, since the Commission incorrectly
                                                                            assumed that the acquisition of 49 % of the shares
                        (Case C-277/00)                                     excluded acquisition of control.
                        (2000/C 273/11)
                                                                            The Commission failed to find that the loan by the Land
An action against the Commission of the European Communi-                   of Brandenburg to SMI is based on the privatisation
ties was brought before the Court of Justice of the European                agreement and is to be regarded as part of the consider-
Communities on 11 July 2000 by the Federal Republic of                      ation from the public authorities on the occasion of
Germany, represented by Wolf-Dieter Plessing, Ministerialrat in             privatisation.
the Federal Ministry of Financial Affairs, 108 Graurheindorfer
Straße, D-53117 Bonn, and Dr Michael Schütte, Rechtsanwalt,
of Bruckhaus Westrick Heller Löber, 99-101 Rue de la Loi,
B-1040 Brussels.                                                            The decision is also vitiated by considerable defects in the
                                                                            reasoning. In particular there are no reasons at all for the
The applicant claims that the Court should:                                 Commission’s failure to take account of the statutory
                                                                            exception in Article 87(2)(c) EC. There are no findings
1.    Annul Commission Decision C(2000) 1063 fin. of                        whatever as regards the effects of possible aid on the
      11 April 2000 on aid to System Microelectronic Inno-                  relevant market. The Commission incorrectly assumes
      vation GmbH of Frankfurt an der Oder;                                 only that there is a ‘semiconductor market’. However,
                                                                            SMI operated only in a very restricted market for
2.    Order the Commission to pay the costs.                                customer-specific and application-specific circuits.
Pleas in law and main arguments
                                                                       —    Breach of Article 87(1) EC: the decision infringes substan-
                                                                            tive law, in so far as it declares the financial measures
Procedural errors                                                           of the Treuhandanstalt and its successor BvS to be
                                                                            incompatible with the common market. The Commission
—     Breach of the principle of the right to a hearing and of              incorrectly considered that the Treuhand scheme, that is,
      the procedural rule in Article 88(2) EC in so far as the              an existing aid scheme, did not apply to the payments by
      Federal Republic of Germany is required to recover aid of             the Treuhandanstalt of DEM 64,8 million, because it
      DEM 140.1 million also from Silicium Microelectronic                  obviously made a wrong assessment of the privatisation.
      Integration GmbH (SiMI), Microelectronic Design and                   In fact Synergy, by acquiring its holding in SMI, took over
      Development GmbH (MD&D) and other unnamed under-                      management of the undertaking and comprehensive
      takings: at no time was an inquiry procedure carried out              rights of control over the company. In addition, the
      against aid in favour of those undertakings. The inquiry              agreements also include all the other elements of a typical
      procedure which led up to the contested decision was at               privatisation agreement, such as a jobs guarantee, know-
      no time extended by the Commission to the other                       how transfer, surplus earnings transfer, excess profit
      undertakings described in the contested decision as                   transfer and an environmental contamination clause.


title: Case F-51/14: Judgment of the Civil Service Tribunal (Third Chamber) of 18 March 2015 — Ribeiro Sinde Monteiro v EEAS (Civil service — EEAS staff — Official — Promotion — Articles 43 and 45(1) of the Staff Regulations — Consideration of comparative merits of all officials eligible for promotion — Officials proposed by the EEAS services and officials not proposed — Taking into account staff reports — Purely literal assessments)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/45

         Judgment of the Civil Service Tribunal (Third Chamber) of 18 March 2015 — Ribeiro Sinde Monteiro v EEAS
   (Case F-51/14) (1)

   ((Civil service - EEAS staff - Official - Promotion - Articles 43 and 45(1) of the Staff Regulations - Consideration of comparative merits of all officials eligible for promotion - Officials proposed by the EEAS services and officials not proposed - Taking into account staff reports - Purely literal assessments))
   (2015/C 146/61)
   Language of the case: French

      Parties

      Applicant: Manuel Jaime Ribeiro Sinde Monteiro (Brussles, Belgium) (represented by: initially D. de Abreu Caldas, M. de Abreu Caldas and J.-N. Louis, lawyers, and subsequently J.-N. Louis, lawyer)

      Defendant: European External Action Service (EEAS) (represented by: S. Marquardt and M. Silva, Agents)

      Re:

   Application for annulment of the decision not to promote the applicant to Grade AST 3 in the 2013 promotion exercise and seeking damages for the non-material loss allegedly suffered.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the appointing authority of the European External Action Services of 9 October 2013 fixing the list of officials promoted in the 2013 promotion exercise in so far as the name of Mr Riberio Sinde Monteiro is not included on that list.

               2.

               There is no need to rule on the application as to the remainder.

               3.

               Orders the European External Action Service to bear its own costs and to pay the costs the costs incurred by Mr Ribeiro Sinde Monteiro.

      (1)  OJ C 292, 1.9.2014, p. 62.


title: Case C-322/02: Reference for a preliminary ruling by the Sozialgericht Augsburg by order of that Court of 7 March 2002 in the proceedings between Eva-Maria Weller and Deutsche Angestellten-Krankenkasse

text:
C 289/10               EN                   Official Journal of the European Communities                                  23.11.2002
3.  Are Article 141 EC and Article 1 of Directive 75/117/                             ment, it would be possible to schedule working
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                            time (potential working time), if the length of
    of the Framework Agreement on part-time work to be                                prior notice of a job placement should be less
    construed as meaning that it constitutes objectively                              than
    unjustified unequal treatment if, in the case of part-
    timers, on the assumption that the vast majority of them                          (a)   14 days or
    are women (approximately 90 % women and 10 % men),
    an employer expressly rules out an agreement on the                               (b) a reasonable amount of time?
    positioning and amount of working time, whereas in the
    case of full-time workers, on the assumption that women
    are not in that same majority, both the amount and, to
    some extent, the allocation of working time are already
    laid down by statute or collective agreement?
                                                                       Reference for a preliminary ruling by the Bundesfinanz-
                                                                       hof by order of that Court of 4 July 2002 in the
4.  Are Article 141 EC and Article 1 of Directive 75/117/              proceedings between Finanzamt Rendsburg and Detlev
    EEC and Article 5 of Directive 76/207/EEC and Clause 4                                          Harbs
    together with Clause 1(b) (facilitation of the development
    of part-time work) of the Framework Agreement on part-                                    (Case C-321/02)
    time work to be construed as meaning that in order to
    compensate for objectively unjustified unequal treatment                                  (2002/C 289/16)
    it is necessary and permissible
                                                                       Reference has been made to the Court of Justice of the
    A      with regard to the amount of working time, to               European Communities by order of the Bundesfinanzhof
           presume a definite amount and, if so, to presume            (Federal Finance Court) of 4 July 2002, received at the Court
                                                                       Registry on 13 September 2002, for a preliminary ruling in
                                                                       the proceedings between Finanzamt Rendsburg and Detlev
           1.   normal working time, or                                Harbs on the following question:
                                                                       Where the owner of a farm:
           2.   the maximum length of weekly working time
                actually worked, unless the employer can prove         —    gives up part of his farm (the entire dairy cow operation)
                that this was due to unusually high demand for              and leases the property necessary for that operation to
                work at that particular time, or                            another farmer;
                                                                       —    and continues to farm on a not insignificant scale after
           3.   the demand ascertained at the date of con-                  granting the lease,
                clusion of the contract of employment, or
                                                                       may he treat the turnover from the lease — like the rest of his
                                                                       turnover — under the flat-rate scheme for farmers (Article 25
           4.   average weekly working time, and                       of Directive 77/388/EEC), or is the turnover from the lease
                                                                       taxable under the general rules?
    B      with regard to the positioning of working time, in
           order to compensate for the extra burden on the
           worker caused by flexibility and for the benefit
           afforded to the employer, to award the worker
                                                                       Reference for a preliminary ruling by the Sozialgericht
                                                                       Augsburg by order of that Court of 7 March 2002 in the
           1.   a ‘reasonable’ supplement on the hourly wage,          proceedings between Eva-Maria Weller and Deutsche
                determined in the light of the individual cir-                         Angestellten-Krankenkasse
                cumstances in question, or
                                                                                (Case C-322/02)
           2.   a minimum supplement equal to that paid to                                    (2002/C 289/17)
                full-time workers who work more than normal
                working hours (eight hours a day or forty
                hours a week), or                                      Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Sozialgericht Augsburg
                                                                       (Social Court, Augsburg) of 7 March 2002, received at the
           3.   irrespective of the amount of time worked,             Court Registry on 16 September 2002, for a preliminary ruling
                compensation for time not remunerated as               in the proceedings between Eva-Maria Weller and Deutsche
                working time during which, under the agree-            Angestellten-Krankenkasse on the following questions:
 ---pagebreak--- 23.11.2002              EN                    Official Journal of the European Communities                                       C 289/11
1.     Do Paragraphs 16 and 18 of the Sozialgesetzbuch (Code             group with turbine and generator adapted for low heads’,
       of Social Law) relating to statutory sickness insurance           which was terminated by Commission under Article 8. The
       (‘SGB V’), which in this country make reimbursement of            contract is governed by French law and the parties have agreed
       the costs of dental treatment carried out by a dentist in         to submit any disputes to the Court of Justice of the European
       another Member State subject to authorisation based on            Communities.
       the merits of the case by the insured person’s social
       security institution, infringe Articles 59 and 60 of the
       EC Treaty, even where the national statutory sickness
       insurance scheme is based on the benefit-in-kind principle
       (and not, as in Case C-158/96 Kohll v Union des caisses
       de maladie (1), on the cost-reimbursement principle)?
2.     If, depending on the answer to Question 1, the defendant          Appeal brought on 18 September 2002 (faxed on 12 Sep-
       were to be required, for reasons connected with Com-              tember 2002) by SAT.1 SatellitenFernsehen GmbH
       munity law, to reimburse the costs of the dental treatment        against the judgment delivered on 2 July 2002 by the
       (in this case provided in the Republic of Austria), is the        Second Chamber of the Court of First Instance of the
       amount of the claim for reimbursement governed by the             European Communities in Case T-323/00 between SAT.1
       costs actually incurred or is that amount restricted to the       SatellitenFernsehen GmbH and the Office for Harmonis-
       rates applicable under the national sickness insurance                              ation of the Internal Market
       scheme (in this case that of the Federal Republic of
       Germany)?
                                                                                (Case C-329/02 P)
( 1) European Court Reports 1998, page I-01931.                                                   (2002/C 289/19)
                                                                         An appeal against the judgment delivered on 2 July 2002 by
                                                                         the Second Chamber of the Court of First Instance of the
                                                                         European Communities in Case T-323/00 between SAT.1
                                                                         SatellitenFernsehen GmbH and the Office for Harmonisation
Action brought on 16 September 2002 by the Com-
                                                                         of the Internal Market (Trademarks and Designs) was brought
mission of the European Communities against Hydrowatt
                                                                         before the Court of Justice of the European Communities on
                       SARL (‘Hydrowatt’)
                                                                         18 September 2002 (faxed on 12 September 2002) by
                                                                         SAT.1 SatellitenFernsehen GmbH, represented by Reinhard
                          (Case C-323/02)                                Schneider, Rechtsanwalt, Büsing, Müffelmann and Theye,
                                                                         Marktstraße 3, D-28195 Bremen, with an address for service
                          (2002/C 289/18)                                in Luxembourg.
                                                                         The appellant claims that the Court should:
An action against Hydrowatt Sarl (‘Hydrowatt’) was brought
before the Court of Justice of the European Communities on               1.    set aside the contested judgment ( 1), in so far as it
16 September 2002 by the Commission of the European                            dismissed the action (2) as formulated in the form of order
Communities, represented by H. Støvlbæk, acting as Agent and                   sought;
E. Cabau, lawyer, with an address for service in Luxembourg.
                                                                         2.    order the Office to pay the costs.
The Commission of the European Communities claims that
the Court should order Hydrowatt to:
                                                                         Pleas in law and main arguments
—      pay to the Commission the principal sum of
       25 109 euros, together with default interest of
       23 422,91 euros, making a total of 48 531,91 euros;               —     Infringement of Article 7(1)(b) of Council Regulation
                                                                               No 40/94 on the Community trade mark (‘the Regu-
—      pay the Commission’s costs in these proceedings.                        lation’): the Court erred in law in finding that
                                                                               Article 7(1)(b) of the Regulation also pursues the general
                                                                               interest objective of allowing signs covered by that
                                                                               provision to be used freely by everyone. There is,
Pleas in law and main arguments                                                however, no evident reason to assume that indications
                                                                               which are merely not suitable for distinguishing goods or
                                                                               services according to their origin must be available for
The action seeks reimbursement of the part of a subsidy                        free use. In the present case it was therefore necessary for
awarded under a contract for the completion of a project ‘New                  the Court to examine whether the compound sign ‘SAT.2’


title: Judgment of the Court (Fifth Chamber) of 11 September 2003 in Case C-211/01: Commission of the European Communities v Council of the European Union (EC/Bulgaria and EC/Hungary Agreements — Carriage of goods by road and combined transport — Taxation — Legal basis — Articles 71 EC and 93 EC)

text:
C 264/10                  EN                           Official Journal of the European Union                                              1.11.2003
and J.N. Cunha Rodrigues, Judges; F.G. Jacobs, Advocate                        lishing certain conditions for the carriage of goods by road
General; M.-F. Contet, Principal Administrator, for the Regis-                 and the promotion of combined transport (OJ 2001 L 108,
trar, has given a judgment on 11 September 2003, in which it                   p. 27), but only in so far as they are based on Article 93 EC
has ruled:                                                                     and without altering their effects, which should be maintained,
                                                                               the Court (Fifth Chamber), composed of: M. Wathelet (Rappor-
Articles 81, 82 and 85 EC and Council Directive 92/12/EEC of                   teur), President of the Chamber, C.W.A. Timmermans,
25 February 1992 on the general arrangements for products subject              D.A.O. Edward, A. La Pergola and S. von Bahr, Judges; S. Alber,
to excise duty and on the holding, movement and monitoring of                  Advocate General; H.A. Rühl, Principal Administrator, for the
such products, as amended by Council Directive 96/99/EC of                     Registrar, has given a judgment on 11 September 2003, in
30 December 1996, must be interpreted as meaning that they do                  which it:
not preclude a national rule providing for the levy of surcharges on
the price of electricity such as those at issue in the main proceedings        1.    Annuls Council Decision 2001/265/EC of 19 March 2001
when the electricity is used in an electro-chemical process and that                 concerning the conclusion of the agreement between the
Council Recommendation 81/924/EEC of 27 October 1981 on                              European Community and the Republic of Bulgaria establishing
electricity tariff structures in the Community is not capable of                     certain conditions for the carriage of goods by road and the
preventing a Member State from levying such surcharges.                              promotion of combined transport and 2001/266/EC of
                                                                                19 March 2001 concerning the conclusion of the agreement
                                                                                between the European Community and the Republic of Hungary
(1) OJ C 200 of 14.7.2001.                                                           establishing certain conditions for the carriage of goods by road
                                                                                and the promotion of combined transport;
                                                                               2.    Declares that the effects of the decisions are to be maintained
                                                                                until the measures necessary to implement the present judgment
                                                                                have been adopted;
                                                                               3.    Orders the Council of the European Union to pay the costs;
                   JUDGMENT OF THE COURT
                                                                               4.    Orders the Federal Republic of Germany and the Grand Duchy
                            (Fifth Chamber)                                          of Luxembourg to bear their own costs.
                        of 11 September 2003                                   (1) OJ C 212 of 28.7.2001.
in Case C-211/01: Commission of the European Communi-
            ties v Council of the European Union (1)
(EC/Bulgaria and EC/Hungary Agreements — Carriage of                                            JUDGMENT OF THE COURT
goods by road and combined transport — Taxation — Legal
                basis — Articles 71 EC and 93 EC)                                                     of 9 September 2003
                            (2003/C 264/16)                                    in Case C-236/01 (Reference for a preliminary ruling
                                                                               from the Tribunale amministrativo regionale del Lazio):
                                                                               Monsanto Agricoltura Italia SpA and Others v Presidenza
                      (Language of the case: French)                                       del Consiglio dei Ministri and Others (1)
(Provisional translation; the definitive translation will be published         (Regulation (EC) No 258/97 — Novel foods — Placing on
                     in the European Court Reports)                            the market — Safety assessment — Simplified procedure —
                                                                               Substantial equivalence to existing foods — Foods produced
                                                                               from genetically modified maize — Presence of residues of
                                                                               transgenic protein — Measure by a Member State tempor-
In Case C-211/01, Commission of the European Communities                       arily restricting or suspending the trade in or use of a novel
(Agent: initially by M. Wolfcarius, subsequently by W. Wils) v                                         food in its territory)
Council of the European Union (Agents: A. Lopes Sabino and
E. Karlsson) supported by Federal Republic of Germany                                                    (2003/C 264/17)
(Agents: W.-D. Plessing and M. Lumma) and by Grand Duchy
of Luxembourg (Agents: J. Falts and N. Mackel): Application
                                                                                (Language of the case: Italian)
for the annulment of Council Decisions 2001/265/EC of
19 March 2001 concerning the conclusion of the agreement
between the European Community and the Republic of                             (Provisional translation; the definitive translation will be published
Bulgaria establishing certain conditions for the carriage of                                      in the European Court Reports)
goods by road and the promotion of combined transport (OJ
2001 L 108, p. 4), and 2001/266/EC of 19 March 2001
concerning the conclusion of the agreement between the                         In Case C-236/01: Reference to the Court under Article 234
European Community and the Republic of Hungary estab-                          EC by the Tribunale amministrativo regionale del Lazio (Italy)


title: Case T-403/13: Action brought on 2 August 2013 — APRAM v European Commission

text:
               14.12.2013

               EN

               Official Journal of the European Union

               C 367/28

         Action brought on 2 August 2013 — APRAM v European Commission
   (Case T-403/13)
   2013/C 367/52
   Language of the case: Portuguese

      Parties

      Applicant: APRAM — Administração dos Portos da Região Autónoma da Madeira, SA (Funchal, Portugal) (represented by: M. Gorjão-Henriques, lawyer)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul Articles 1 and 2 of Commission Decision C(2013) 1870 final, of 27 March 2013, which reduces the contribution from the Cohesion Fund to the project ‘Development of Port infrastructures of the Autonomous Region of Madeira — Port of Caniçal’, Madeira, Portugal;

               —

               declare that Regulation (EC) No 16/2003 (1) is not applicable in the present case, in particular Article 7 thereof, since it infringes essential procedural requirements and Regulation (EC) No 1164/94 (2) or, in any event, general principles of European Union law;

               —

               declare that the European Commission is required to pay the outstanding balance;

               —

               in the alternative:

                           (a)

                           declare that the limitation period has expired in respect of the procedure for recovering sums already paid and the right to retain the outstanding balance;

                           (b)

                           declare that the European Commission is required to reduce the correction it made in relation to irregularities which could determine non-payment of the full outstanding balance and the recovery in full of payments made after 3 June 2003 but invoiced between June 2002 and February 2003;

               —

               in any event, order the European Commission to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicant relies on six pleas in law.
   1.   First plea in law: infringement of rules on the eligibility of expenditure

   The contested decision infringes legal rules implementing the Treaty, in particular in so far they concern the eligibility of expenditure for financing by European funds, namely Article 11 of Regulation (EC) No 1164/94 and Article 7 of Regulation (EC) No 16/2003. In that regard, the parties disagree on the question whether payments made after and during the beginning of the eligibility period, though invoiced prior to that period, constitute expenditure which is eligible for European financing.
   2.   Second plea in law: Regulation (EC) No 16/2003 is unlawful, since it infringes essential procedural requirements and a higher-ranking rule of law

   The decision is also unlawful because it is based on Regulation No 16/2003, which is unlawful since it was not adopted by the College of Commissioners in accordance with the authorisation procedure or the written procedure, or any other simplified procedure in accordance with the Rules of Procedure of the Commission, (3) nor did it comply with Article 18 of those Rules of Procedure, and in so far as the Commission failed to interpret Article 7 of Regulation No 16/2003 in conformity with Regulation (EC) No 1164/94.
   3.   Third plea in law: infringement of the principle of subsidiarity

   The principle of subsidiarity requires the establishment of national rules concerning the eligibility of expenditure, since economic, social and territorial cohesion is an area in which jurisdiction is shared between the European Union and the Member States and, for this reason, it is necessary to observe that principle. However, Regulation No 16/2003 infringes that principle to the extent that it not only fails to invoke the principle, but also fails to justify the need for the system that it establishes having regard to that principle.
   4.   Fourth plea in law: infringement of the principles of legitimate expectations and legal certainty and the obligation on administrative bodies to observe their own acts

   The European Commission has consistently interpreted the legislative rule at issue in the way defended in the present case by APRAM.
   That interpretation came from authorised European Commission sources, which was communicated to the Portuguese Republic, as well as other Member States, and the content thereof was clearly such that the Portuguese Republic could legitimately expect that the invoices received prior to, and paid after, receipt by the European Commission of the request for full payment were eligible. This was also the view of the competent national authorities. This is how APRAM created the legitimate expectation that that expenditure was effectively eligible.
   The interpretation which the Commission now defends manifestly infringes the principle of legal certainty in that it imposes a substantial financial burden on APRAM, even though that interpretation was neither certain nor foreseeable.
   5.   Fifth plea in law: infringement of the principle of proportionality

   Although it is true that, in accordance with Article H of Annex II to Regulation (EC) No 1164/94, the European Commission is empowered to make financial corrections as its deems necessary, and which may imply full or partial annulment of the aid granted, it must also observe the principle of proportionality, taking account of the circumstances of the individual case, such as the type of irregularity and the possible financial impact of potential deficiencies in the management or monitoring systems, so as not to opt for a disproportionate response. In that regard, it is incomprehensible why it was regarded necessary to cancel all of the aid granted, since corrections at a rate of 100 % apply only when the deficiencies in the management and monitoring systems are so significant, or the irregularity found is so serious, as to constitute a complete disregard of European Union law rendering all of the payments improper. When that is not the case, those authorities propose corrections limited to 5 %, 2 % or even 0 %.
   Difficulties in interpreting the rule at issue are a decisive attenuating circumstance which should always be taken into account by the Commission. In the light of the circumstances described, less restrictive means exist — such as the application of a reduced rate or even no correction at all — to achieve the desired objective. Accordingly, even if the Commission decides to apply a correction to the assistance granted — which is not the case — that correction should in no case exceed 5 % and should in fact be less or even zero.
   6.   Sixth plea in law: the limitation period has expired

   In any event, the limitation period in relation to requiring the recovery of expenditure predating 3 June 2003 has already expired, given that the last invoice was dated 28 February 2008, namely three months and two days before the date at issue. In accordance with Regulation (EC) No 2988/95 (4) of 18 December 1995, the limitation period for proceedings is four years as from the time when the irregularity was committed.

      (1)  Commission Regulation (EC) No 16/2003 of 6 January 2003 laying down special detailed rules for implementing Council Regulation (EC) No 1164/94 as regards eligibility of expenditure in the context of measures part-financed by the Cohesion Fund (OJ 2003 L 2, p. 7).

      (2)  Council Regulation (EC) No 1164/94 of 16 May 1994 establishing a Cohesion Fund (OJ 1994 L 130, p. 1).

      (3)  OJ 2000 L 308, p. 26.

      (4)  Council Regulation (EC, Euratom) No 2988/95 of 18 December 1995 on the protection of the European Communities financial interests (OJ 1995 L 312, p. 1).


title: Case C-171/05 P: Appeal brought on 15 April 2005 by L. Piau against the judgment delivered on 26 January 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-193/02 between L. Piau and the Commission of the European Communities, supported by the Fédération Internationale de Football Association (FIFA)

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/5

         Appeal brought on 15 April 2005 by L. Piau against the judgment delivered on 26 January 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-193/02 between L. Piau and the Commission of the European Communities, supported by the Fédération Internationale de Football Association (FIFA)
   (Case C-171/05 P)
   (2005/C 155/10)
   Language of the case: French
   An appeal against the judgment delivered on 26 January 2005 by the Court of First Instance of the European Communities (Fourth Chamber) in Case T-193/02 between L. Piau and the Commission of the European Communities, supported by the Fédération Internationale de Football Association (FIFA), was brought before the Court of Justice of the European Communities on 26 January 2005 by L. Piau, represented by M. Fauconnet, avocat.
   The applicant claims that the Court should:

               1.

               set aside the judgment of the Court of First Instance in Case T-193/02;

               2.

               annul the decision of the European Commission of 15 April 2002;

               3.

               give final judgment in the matter itself, by application of the first paragraph of Article 61 of the Statute of the Court of Justice, since the state of the proceedings so permits;

               4.

               order FIFA to pay the costs of Case T-193/02 and of this appeal.

         Pleas in law and main arguments

               1.

               Infringement of the applicant's rights
               The Court of First Instance, by failing of its own motion to raise the question of the breach of Article 253 EC by the Commission, which failed to give reasons for its rejection of the applicant's complaint under Article 49 EC, failed to have regard to the powers attributed to it. Furthermore, the Court of First Instance infringed Article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms because it failed to take into account some of the pleas advanced by the applicant.

               2.

               Infringement of Article 81 EC
               In the absence of factual evidence regarding the necessary regulation of the profession and evidence showing the economic or technical progress of FIFA's regulation of players' agents, the decision of the Court of First Instance is without a legal basis. The Court of First Instance erred in law in holding that there was no Community interest in pursuing the complaint, although the judgment had no legal basis and Article 81 EC had been infringed.

               3.

               Infringement of Article 82 EC
               In the absence of enquiries by the Commission into the dominant position of FIFA and into possible abuse thereof, the Court of First Instance could not assume the role of the Commission, after having established the existence of that dominant position, and find that there was no abuse, erring in law and thus infringing Article 82 EC.

               4.

               Contradictory and insufficient reasoning of the Court of First Instance amounting to a lack of reasoning as to the continuation of anti-competitive effects.

               5.

               Error in law as to the equivalence of the ‘FIFA diplomas’.

               6.

               Infringement of the general principle of legal certainty.

               7.

               Error in law as regards the task and powers of the Commission.

               8.

               Infringement of Article 39 EC.

               9.

               Infringement of Article 49 EC.

               10.

               Error in law as regards the definition of Community interest.


title: Case T-204/09: Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (OLYMP) (Community trade mark — Opposition proceedings — Application for the Community figurative mark OLYMP — Earlier national figurative mark OLIMPO — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               25.6.2011

               EN

               Official Journal of the European Union

               C 186/21

         Judgment of the General Court of 5 May 2011 — Olymp Bezner v OHIM — Bellido (OLYMP)
   (Case T-204/09) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark OLYMP - Earlier national figurative mark OLIMPO - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2011/C 186/38
   Language of the case: English

      Parties

      Applicant: Olymp Bezner GmbH & Co. KG (Bietigheim-Bissingen, Germany) (represented by: M. Eck and J. Dönch, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Crespo Carrillo, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM: Miguel Bellido, SA (Manzanares, Spain)

      Re:

   ACTION brought against the decision of the Second Board of Appeal of OHIM of 5 March 2009 (Case R 598/2008-2) relating to opposition proceedings between Miguel Bellido SA and Olymp Bezner GmbH & Co. KG

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Olymp Bezner GmbH & Co. KG to pay the costs.

      (1)  OJ C 167, 18.7.2009.


title: Case C-343/99: Action brought on 16 September 1999 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
4.12.1999            EN                    Official Journal of the European Communities                                      C 352/23
Reference for a preliminary ruling by the Landesgericht               3. Order the Commission to pay default interest in respect of
Korneuburg by order of 1 September 1999 in the case of                    the full amount blocked by the contested decision with
   NEW YORKER S.H.K Jeans GmbH v SIMPEX-1000ST                            effect from 16 August 1999, or earlier in the case of an
                                                                          admissible application, until the date on which the judg-
                                                                          ment of the Court is complied with;
                       (Case C-342/99)
                       (1999/C 352/35)                                4. Order the Commission to pay the costs of the proceedings.
Reference has been made to the Court of Justice of the
European Communities by order of 1 September 1999 from
the Landesgericht Korneuburg (Regional Court, Korneuburg)
(Republic of Austria), which was received at the Court Registry
on 14 September 1999, for a preliminary ruling in the case of         Pleas in law and main arguments
NEW YORKER S.H.K. Jeans GmbH v SIMPEX-1000ST on the
following question:
                                                                      — Lack of competence: the contested decision was not
On a proper construction of Article 1 thereof, is Council                 adopted by the Commission in compliance with the
Regulation (EC) No 3295/94 of 22 December 1994 laying                     principle of collective responsibility. Nor is it clear that
down measures to prohibit the release for free circulation,               the contested decision was adopted on behalf of the
export, re-export or entry for a suspensive procedure of                  Commission. No decision on the basis of which the head
counterfeit and pirated goods (Official Journal of the European           of division in question was empowered to take such a
Communities No L 341 of 30.12.1994) also applicable to                    decision was ever published and the Netherlands Govern-
situations in which goods of the type specified therein are, in           ment is not otherwise aware of any decision whereby the
the course of transit between two States not belonging to                 head of division in question was authorised to decide to
the European Community, temporarily detained by customs                   suspend payment of the first advance. The person who
authorities in a Member State on the basis of that regulation,            signed the contested decision was therefore not authorised
at the request of a holder of rights who claims that his rights           to take that decision.
have been infringed and whose undertaking has its registered
office in a Member State of the European Community?
                                                                          Even were the Commission to establish that F.H. was
                                                                          authorised and if it could be assumed that the contested
                                                                          decision was based on this authorisation, the contested
                                                                          decision goes beyond the limits which the case-law imposes
                                                                          on authorisation. The contested decision cannot be regard-
                                                                          ed as being a managerial and administrative measure which
                                                                          it is necessary should be adopted in order to ensure the
                                                                          proper functioning of both the Commission and its services
                                                                          at administrative level.
Action brought on 16 September 1999 by the Kingdom of
the Netherlands against the Commission of the European
                        Communities
                                                                      — Breach of Council Regulation (EEC) No 4253/88 of
                       (Case C-343/99)                                    19 December 1988 laying down provisions for
                                                                          implementing Regulation (EEC) No 2052/88 as regards
                                                                          coordination of the activities of the different Structural
                       (1999/C 352/36)                                    Funds between themselves and with the operations of the
                                                                          European Investment Bank and the other existing financial
                                                                          instruments (1):
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 16 September 1999 by the Kingdom of the
Netherlands, represented by Marc Fierstra and Jantine van                 — Breach of Article 21 of Regulation No 4253/88: when
Bakel, Assistant Legal Advisers in the Ministry of Foreign                     taking a decision on the amount to be paid as an
Affairs, The Hague, acting as Agents.                                          advance, the Commission has only those powers which
                                                                               relate to the assessment of whether the application is
                                                                               admissible. In particular, a power to order suspension
The applicant claims that the Court should:                                    such as that in the contested decision cannot be derived
                                                                               from Article 24 of Regulation No 4253/88. The auth-
                                                                               orisation provided for under Article 24 of Regulation
1. Declare that the application is admissible;                                 No 4253/88 relates to specific operations and does not
                                                                               provide for the possibility of suspending payment of
2. Annul the Commission decision notified to the Nether-                       the first advance in respect of all operations or
     lands Government by letter of 16 July 1999;                               measures to be implemented in a Member State.
 ---pagebreak--- C 352/24               EN                   Official Journal of the European Communities                                      4.12.1999
    — Breach of Article 24 of Regulation No 4253/88: failure           European Communities in Case T-158/95 brought by Eridania
        to comply with the procedural requirements governing           Zuccherifici Nazionali SpA and Others against Council of the
        application of this authorisation. The contested               European Union, supported by the Commission, was brought
        decision was not preceded by an examination, let alone         before the Court of Justice of the European Communities on
        a suitable examination, of the measures in respect of          22 September 1999 by Eridania Zuccherifici Nazionali SpA,
        which payment of the first advance was sought. While           established in Genoa, ISI — Industria Saccarifera Italiana
        the contested decision does refer to the Control Report        Agroindustriale SpA, established in Padua, Sadam Zuccherifici,
        on the regions of Rijnmond and Gelderland drawn up             a division of SECI — Società Esercizi Commerciali Industriali
        by DG V/G/3, that Control Report does not have any             SpA, established in Bologna, Sadam Castiglionese SpA, estab-
        connection with the operations in respect of which             lished in Bologna, Sadam Abruzzo SpA, established in Bologna,
        payment of the advance is being sought. In the first           Zuccherificio del Molise SpA, established in Termoli and SFIR
        place, the report concerns operations in the past,             — Società Fondiaria Industriale Romagnolo SpA, established
        and, second, it relates to fewer regions than do the           in Cesena, incorporating, following a merger, Ponteco Zuccheri
        operations in respect of which the first advance was           SpA, also established in Cesena, all represented by Bernard
        sought by letter of 16 March 1999. In addition, the            O’Connor, Solicitor of the High Court of Ireland, and Ivano
        Control Report relates to operations designed to               Vigliotti, of the Genoa Bar, with an address for service in
        achieve objective 3, whereas the contested decision            Luxembourg at the Chambers of Arsène Kronshagen, 22 Rue
        relates not only to operations designed to achieve             Marie Adélaide, L-2128 Luxembourg.
        objective 3 but also to operations undertaken to attain
        objectives 1, 2 and 5b, as well as the Community
        Employment initiative.                                         The appellant claims that the Court should:
— Infringement of the principle of proportionality: the con-           (1) annul the decision of the Court of First Instance declaring
    tested decision goes beyond what is necessary for the                  inadmissible the applicants’ application for annulment
    protection of the Community’s financial interests. The                 of Regulation No 1534/95 (1) and Article 4 thereof in
    burdens which the contested decision imposes on pro-                   particular, for annulment of Regulation No 1101/95 (2) (in
    moters who were not the subject of the inspections and in              so far as, in Article 1(13) thereof, it replaces Article 46 of
    respect of whom the Control Report finds that closer                   Regulation No 1785/81 (3), and thereby prevents the Italian
    investigation is necessary in order to be able to determine            State from granting adjustment aid to Italian sugar pro-
    whether the practices criticised do in fact concern them               ducers for the costs of storage in Italy arising from high
    are out of all reasonable proportion.                                  interest rates), and for a declaration that Regulation
                                                                           No 1785/81, and Article 8 thereof in particular, is
— Infringement of the principle of adversarial proceedings.                unlawful;
— Breach of Article 253 EC (inadequate statement of reasons).          (2) annul the decision of the Court of First Instance ordering
                                                                           the applicants to bear the costs incurred by the Council;
(1) OJ 1988 L 374, p. 1.
                                                                       (3) refer the case back to the Court of First Instance for
                                                                           judgment in the application made in Case T-158/95
                                                                           for annulment of Regulation No 1534/95 and Article 4
                                                                           thereof in particular, for annulment of Regulation
                                                                           No 1101/95 (in so far as, in Article 1(13) thereof, it
                                                                           replaces Article 46 of Regulation No 1785/81, and thereby
                                                                           prevents the Italian State from granting adjustment aid to
                                                                           Italian sugar producers for the costs of storage in Italy
                                                                           arising from high interest rates), and for a declaration that
Appeal brought on 22 September 1999 by Eridania Zuc-                       Regulation No 1785/81, and Article 8 thereof in particular,
cherifici Nazionali SpA, ISI — Industria Saccarifera Itali-                is unlawful;
ana Agroindustriale SpA, Sadam Zuccherifici, a division
of SECI — Società Esercizi Commerciali Industriali SpA,                (4) if the Court of Justice considers that it can give final
Sadam Castiglionese SpA, Sadam Abruzzo SpA, Zuccheri-                      judgment on the merits of Case T-158/95 pursuant to
ficio del Molise SpA and SFIR — Società Fondiaria                          Article 54 of the EC Statute of the Court of Justice, allow
Industriale Romagnolo SpA against the judgment deliver-                    the specific written and oral pleadings on those matters;
ed on 8 July 1999 by the First Chamber of the Court of
First Instance of the European Communities in Case
T-158/95 brought by Eridania Zuccherifici Nazionali SpA                (5) order the Council to bear the costs of the case.
    and Others against Council of the European Union
                        (Case C-351/99 P)                              Pleas in law and principal arguments
                         (1999/C 352/37)                               The appellants contest the judgment:
An appeal against the judgment delivered on 8 July 1999 by             — insofar as it is held that the application for annulment of
the First Chamber of the Court of First Instance of the                    Article 1(13) of Regulation No 1101/95 is inadmissible;