title: ORDER OF THE COURT OF FIRST INSTANCE of 11 December 1998 in Case T-22/98: Scottish Soft Fruit Growers Ltd v. Commission of the European Communities (Common agricultural policy - Raspberries intended for processing - Flat-rate grant to producers' organisations - Recovery of sums paid - Act against which no action lies - Legal effects - Application for annulment - Inadmissibility)

text:
20.2.1999            EN                  Official Journal of the European Communities                                 C 48/25
Chamber), composed of: B. Vesterdorf, President, and J.                  ORDER OF THE COURT OF FIRST INSTANCE
Pirrung and M. Vilaras, Judges; H. Jung, Registrar, made
                                                                                of 15 December 1998
an order on 25 November 1998, the operative part of
which is as follows:                                                in   Case   T-25/98:     Henri de Compte      v. European
                                                                                Parliament (1)
1. The application is dismissed as inadmissible.                    (Officials Ð Action for annulment and compensation Ð
                                                                    Decision of the Parliament giving discharge in respect of
                                                                    the implementation of the budget for the financial year
2. The parties are to bear their own costs.                         1995 Ð Prior administrative procedure Ð Decision
                                                                    rejecting a complaint Ð Identification of the
(1) OJ C 357, 22.11.1997.                                           subject-matter and legal basis Ð Partial inadmissibility Ð
                                                                    Res judicata Ð Action manifestly and wholly unfounded
                                                                                in law)
                                                                                (1999/C 48/55)
     ORDER OF THE COURT OF FIRST INSTANCE                                          (Language of the case: French)
                    of 11 December 1998
in Case T-22/98: Scottish Soft Fruit Growers Ltd v.                 In Case T-25/98: Henri de Compte, a former official of
       Commission of the European Communities (1)                   the European Parliament, residing at Longeville-leÁs-Metz,
(Common agricultural policy Ð Raspberries intended for              represented by Henri Ferretti, of the Thionville Bar, with
processing Ð Flat-rate grant to producers' organisations            an address for service in Luxembourg at the Chambers of
Ð Recovery of sums paid Ð Act against which no action               Guy Harles, 8-10 Rue Mathias Hardt, v. European
lies Ð Legal effects Ð Application for annulment Ð                  Parliament (Agents: Evelyn Waldherr and Anders
                        Inadmissibility)                            Neergaard) Ð application, first, for annulment of
                                                                    Decision No A4-0125/97 of the European Parliament of
                        (1999/C 48/54)                              10 April 1997 giving discharge in respect of the
                                                                    implementation of the budget for the financial year 1995
                                                                    Ð Section I Ð European Parliament/Ombudsman annex
               (Language of the case: English)
                                                                    (OJ C 132, 28.4.1997, p. 148) and of the Parliament's
                                                                    decision, notified on 19 November 1997, rejecting a
In Case T-22/98: Scottish Soft Fruit Growers Ltd,                   complaint lodged by the applicant and, second, for
established at Blairgowrie, Scotland (Great Britain),               compensation for the damage suffered by the applicant by
represented by Fergus Randolph, Barrister, of the Bar of            reason of the publication of the said discharge decision
England and Wales, with an address for service in                   and as a result of a wrongful accusation concerning a loss
Luxembourg at the Chambers of Arendt and Medernach,                 of cash Ð the Court of First Instance (Fourth Chamber),
8-10 Rue Mathias Hardt v. Commission of the European                composed of: R. M. Moura Ramos, President, and V. Tiili
Communities (Agent: Xavier Lewis) Ð application for                 and P. Mengozzi, Judges; H. Jung, Registrar, made an
annulment of the decision of the Commission, expressed              order on 15 December 1998, the operative part of which
in its letter of 16 October 1997 to the Scottish Office,            is as follows:
refusing to accede to a request concerning the
interpretation and application of Council Regulation
(EEC) No 1991/92 of 13 July 1992 establishing a special             1. The application is dismissed as inadmissible, save as
scheme for raspberries intended for processing (OJ L 199,               regards the claims concerning annulment of the
18.7.1992, p. 1), and of Commission Regulation (EEC)                    accounting documents relating to the sum of BEF
No 2252/92 of 30 July 1992 laying down detailed rules                   4 136 125 and the Parliament's refusal to make
for applying that scheme (OJ L 219, 4.8.1992, p. 19) Ð                  available to the applicant all the accounting
the Court (Fifth Chamber), composed of: J. D. Cooke,                    documents explaining the reasons for which he was
President, M. R. García-Valdecasas and P. Lindh, Judges;                not issued with a final discharge.
H. Jung, Advocate-General, has given a judgment on
11 December 1998, in which it:
                                                                    2. The remainder of the application is dismissed as
1. The application is dismissed as inadmissible.                        manifestly and wholly unfounded in law.
2. The applicant shall pay its own costs and those                  3. The parties are to bear their own costs.
    incurred by the Commission.
                                                                    (1) OJ C 94, 28.3.1998.
(1) OJ C 94, 28.3.1998.


title: Case T-23/11: Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh)

text:
               12.3.2011

               EN

               Official Journal of the European Union

               C 80/22

         Action brought on 17 January 2011 — El Corte Inglés v OHIM — BA&SH (ba&sh)
   (Case T-23/11)
   2011/C 80/43
   Language in which the application was lodged: English

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: M. López Camba and J. Rivas Zurdo, lawyers)

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

      Other party to the proceedings before the Board of Appeal: BA&SH SAS (Paris, France)

      Form of order sought

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 October 2010 in case R 94/2010-2;

               —

               Order the defendant and the other party to the proceedings before the Board of Appeal to bear the costs of the proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The figurative mark ‘ba&sh’, for goods in classes 3, 14, 18 and 25 — Community trade mark application No 5679758

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

      Mark or sign cited in opposition: Spanish trade mark registration No 2211312 of the figurative mark in colour ‘BASS10’, for goods in class 3; Spanish trade mark registration No 2140717 of the figurative mark in colour ‘BASS10’, for goods in class 18; Spanish trade mark registration No 2140718 of the figurative mark in colour ‘BASS10’, for goods in class 25; Spanish trade mark registration No 2223832 of the figurative mark in colour ‘BASS10’, for goods in class 14

      Decision of the Opposition Division: Rejected the opposition in its entirety

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: The applicant considers that the contested decision infringes Articles 42(2) and 42(3) of Council Regulation (EC) No 207/2009, as the Board of Appeal wrongly concluded that no genuine use for the goods concerned was proved. The applicant also considers that the contested decision infringes Article 8(1)(b) of Council Regulation (EC) No 207/2009, as the concerned trade marks are confusingly similar and as the products designated by the contested trade mark are partially identical and partially similar to those covered by the earlier registrations.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 30 September 1998 in Case T-149/96: Confederazione Nazionale Coltivatori Diretti (Coldiretti) and Others v. Council of the European Union and Commission of the European Communities (Common agricultural policy - Animal health - Bovine spongiform encephalopathy - Action for damages - Regulation (EC) No 1357/96 - Additional premiums - Action for annulment - Trade association - Inadmissible)

text:
C 378/16              EN                 Official Journal of the European Communities                                   5.12.98
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                           represented by Roberto G. Aloisio, of the Rome Bar, and
                     of 16 October 1998                             Fabrizio Massoni, of the Brussels Bar, with an address for
                                                                    service in Luxembourg at the Chambers of Jim Penning,
in Case T-40/95: V v. Commission of the European                    31 Grand-Rue, v. Council of the European Union (Agents:
                        Communities (1)                             initially, Moyra Sims-Robertson and Marco Umberto
(Officials Ð Disciplinary procedure Ð Removal from post             Moricca, and, subsequently, Moyra Sims-Robertson and
Ð Appeal Ð Case referred back to the Court of First                 Ignacio Díez Parra) and Commission of the European
Instance Ð Verification of the facts Ð Right to a fair              Communities (Agents: Paolo Ziotti and James Macdonald
                            hearing)                                Flett) Ð Application, first, for compensation under
                                                                    Article 178 and the second paragraph of Article 215 of
                         (98/C 378/28)                              the EC Treaty for the damage allegedly suffered by the
                                                                    applicants as a result of acts and omissions of the Council
                (Language of the case: French)                      and the Commission following the outbreak of the disease
                                                                    known as bovine spongiform encephalopathy and, second,
In Case T-40/95: V, an official of the Commission of the            annulment of Council Regulation (EC) No 1357/96 of
European Communities, represented by Jean-NoeÈl Louis               8 July 1996 providing for additional payments to be made
and Thierry Demaseure, and initially by Ariane Tornel, all          in 1996 with the premiums referred to in Regulation
of the Brussels Bar, with an address for service in                 (EEC) No 805/68 on the common organisation of the
Luxembourg at the Office of Fiduciaire Myson SARL, 30               market in beef and veal and amending that regulation (OJ
Rue de Cessange, against Commission of the European                 L 175, 13.7.1996, p. 9) Ð the Court of First Instance
Communities (Agent: Ana Maria Alves Vieira) Ð                       (Fifth Chamber) composed of: J. Azizi, President, R.
application for annulment of the Commission's Decision              García-Valdecasas and M. Jaeger, Judges; B. Pastor,
of 18 January 1995 removing the applicant from his post             Principal Administrator, for the Registrar, has given a
without reduction or withdrawal of his entitlement to a             judgment on 30 September 1998, in which it:
retirement pension Ð the Court of First Instance (Fifth
Chamber), composed of: J. Azizi, President, R. García-
Valdecasas and M. Jaeger, Judges; B. Pastor,
Administrator, for the Registrar, gave a judgment on
16 October 1998, in which it:                                       1. Dismisses as inadmissible the application for
                                                                         compensation made by Confederazione Nazionale
1. Annuls the Commission's Decision of 18 January 1995                   Coltivatori Diretti (Coldiretti);
     removing the applicant from his post;
2. Orders the Commission to bear all the costs, including
     those relating to the proceedings before the Court of
                                                                    2. Dismisses as unfounded the applications for
     Justice and the interlocutory proceedings.
                                                                         compensation made by the other applicants (the
                                                                         individual farmers);
(1) OJ C 87, 8.4.1995.
                                                                    3. Rules that there is no need to give a decision on the
                                                                         application for annulment of Council Regulation (EC)
  JUDGMENT OF THE COURT OF FIRST INSTANCE                                No 1357/96 of 8 July 1996 providing for additional
                    of 30 September 1998                                 payments to be made in 1996 with the premiums
                                                                         referred to in Regulation (EEC) No 805/68 on the
in Case T-149/96: Confederazione Nazionale Coltivatori                   common organisation of the market in beef and veal
Diretti (Coldiretti) and Others v. Council of the European               and amending that regulation;
 Union and Commission of the European Communities (1)
(Common agricultural policy Ð Animal health Ð Bovine
spongiform encephalopathy Ð Action for damages Ð
Regulation (EC) No 1357/96 Ð Additional premiums Ð
Action for annulment Ð Trade association Ð                          4. Orders the applicants to pay the costs.
                          Inadmissible)
                         (98/C 378/29)
                                                                    (1) OJ C 370, 7.12.1996.
                (Language of the case: Italian)
In Case T-149/96: Confederazione Nazionale Coltivatori
Diretti (Coldiretti), established in Rome, and 110 farmers,


title: Case C-279/10: Order of the Court (Eighth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Tribunale di Verbania — Italy) — Criminal proceedings against Matteo Minesi (Article 104(3), first subparagraph, of the Rules of Procedure — Freedom of establishment — Freedom to provide services — Betting and gaming — Collection of bets on sporting events — Licensing requirement — Consequences of an infringement of European Union law in the awarding of licences — Award of 16300 additional licences — Principle of equal treatment and the obligation of transparency — Principle of legal certainty — Protection of holders of earlier licences — National legislation — Mandatory minimum distances between betting outlets — Whether permissible — Cross-border activities analogous to those engaged in under the licence — Prohibition under national legislation — Whether permissible)

text:
               26.5.2012

               EN

               Official Journal of the European Union

               C 151/10

         Order of the Court (Eighth Chamber) of 16 February 2012 (reference for a preliminary ruling from the Tribunale di Verbania — Italy) — Criminal proceedings against Matteo Minesi
   (Case C-279/10) (1)

   (Article 104(3), first subparagraph, of the Rules of Procedure - Freedom of establishment - Freedom to provide services - Betting and gaming - Collection of bets on sporting events - Licensing requirement - Consequences of an infringement of European Union law in the awarding of licences - Award of 16 300 additional licences - Principle of equal treatment and the obligation of transparency - Principle of legal certainty - Protection of holders of earlier licences - National legislation - Mandatory minimum distances between betting outlets - Whether permissible - Cross-border activities analogous to those engaged in under the licence - Prohibition under national legislation - Whether permissible)
   2012/C 151/18
   Language of the case: Italian

      Referring court

   Tribunale di Verbania

      Criminal proceedings against

   Matteo Minesi

      Re:

   Reference for a preliminary ruling — Tribunale del Riesame di Verbania — Free movement of persons — Freedom to provide services — Activity of collecting bets — Domestic legislation making the exercise of that activity conditional upon the obtaining of a public security authorisation and permit — Protection afforded to persons obtaining authorisations and permits by means of award procedures that unlawfully excluded other operators from the same sector — Whether compatible with Articles 43 EC and 49 EC

      Operative part of the order

               1.

               Articles 43 EC and 49 EC and the principles of equal treatment and effectiveness must be interpreted as precluding a Member State which, in breach of European Union law, has excluded a category of operators from the award of licences to engage in a particular economic activity and which seeks to remedy that breach by putting out to tender a significant number of new licences, from protecting the market positions acquired by the existing operators, by providing inter alia that a minimum distance must be observed between the establishments of new licence holders and those of existing operators.

               2.

               Articles 43 EC and 49 EC must be interpreted as precluding the imposition of penalties for engaging in the organised activity of collecting bets without a licence or police authorisation on persons who are linked to an operator which was excluded, in breach of European Union law, from an earlier tendering procedure, even following the new tendering procedure intended to remedy that breach of European Union law, in so far as that tendering procedure and the subsequent award of new licences have not in fact remedied the exclusion of that operator from the earlier tendering procedure.

               3.

               It follows from Articles 43 EC and 49 EC, the principle of equal treatment, the obligation of transparency and the principle of legal certainty that the conditions and detailed rules of a tendering procedure such as that at issue in the case before the referring court and, in particular, the provisions concerning the withdrawal of licences granted under that tendering procedure, such as those laid down in Article 23(2)(a) and (3) of the model contract between the Independent Authority for the Administration of State Monopolies and the successful tenderer for the licence for betting on events other than horse races, must be drawn up in a clear, precise and unequivocal manner, a matter which it is for the referring court to verify.

      (1)  OJ C 209, 31.7.2010.


title: Case T-580/11: Action brought on 8 November 2011 — McNeil v OHIM — Alkalon (NICORONO)

text:
               28.1.2012

               EN

               Official Journal of the European Union

               C 25/58

      Action brought on 8 November 2011 — McNeil v OHIM — Alkalon (NICORONO)
      (Case T-580/11)
      (2012/C 25/111)
      Language in which the application was lodged: English

         Parties

         Applicant: McNeil AB (Helsingborg, Sweden) (represented by: I. Starr, Solicitor)

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

         Other party to the proceedings before the Board of Appeal: Alkalon ApS (Copenhagen V, Denmark)

         Form of order sought

                  —

                  Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 3 August 2011 in case R 1582/2010-2;

                  —

                  Order the defendant to pay to the applicant its costs of and occasioned by this appeal.

         Pleas in law and main arguments

         Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

         Community trade mark concerned: The word mark ‘NICORONO’, for goods in classes 5, 10 and 30 — Community trade mark application No 6654529

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

         Mark or sign cited in opposition: Community trade mark registration No 2190239 of the word mark ‘NICORETTE’, for goods in classes 5, 10 and 30

         Decision of the Opposition Division: Upheld the opposition

         Decision of the Board of Appeal: Annulled the contested decision

         Pleas in law: Infringement of Articles 75, 8(1)(b) and 8(5) of Council Regulation No 207/2009, as the Board of Appeal has failed to give sufficient weight in the overall assessment to: (i) the identity of the goods concerned and the fact that this offsets a lesser degree of similarity between the marks to be compared; (ii) the fact that consumers normally perceive word marks as a whole and pay particular attention to the beginning of a mark; and (iii) the fact that the applicant’s mark ‘NICORETTE’ has enhanced distinctiveness and an extensive reputation through significant use.


title: Case C-72/07: Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain), lodged on 9 February 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios

text:
               14.4.2007

               EN

               Official Journal of the European Union

               C 82/23

         Reference for a preliminary ruling from the Tribunal Superior de Justicia de Asturias (Spain), lodged on 9 February 2007 — José Manuel Blanco Pérez and Maria del Pilar Chao Gómez v Consejería de Salud y Servicios Sanitarios
   (Case C-72/07)
   (2007/C 82/42)
   Language of the case: Spanish
   Referring court
   Tribunal Superior de Justicia de Asturias (High Court of Justice of Asturias)
   Parties to the main proceedings

      Applicant: José Manuel Blanco Pérez, Maria del Pilar Chao Gómez

      Defendant: Consejería de Salud y Servicios Sanitarios
   Questions referred

               1.

               Should Article 2 of Decree 72/2001 and the First Section of Chapter II of said Decree, pursuant to the provisions of Article 103 of Law 14/1986 (General Health) and of Article 88 of Law 25/1990 of 20 December (on medicinal products), be considered to be in breach of Article 43 of the Treaty establishing the European [Community]?

               2.

               Should Annex III of the Resolution of the Department of Health and Health Care Services of the Government of the Principality of Asturias be considered to be in breach of Article 43 of the EC Treaty?


title: Case T-259/04: Action brought on 21 June 2004 by Anne Koistinen against the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/29

         Action brought on 21 June 2004 by Anne Koistinen against the Commission of the European Communities
   (Case T-259/04)
   (2004/C 262/57)
   Language of the case: French
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 21 June 2004 by Anne Koistinen, residing in Brussels, represented by Sébastien Orlandi, Albert Coolen, Jean-Noël Louis and Etienne Marchal, lawyers, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               —

               annul the decision of the Commission not to grant her the expatriation allowance provided for by Article 4(1)(a) of Annex VII of the Staff Regulations and to establish her place of origin as Brussels;

               —

               order the defendant to pay the costs.

         Pleas in law and main arguments:
   The applicant entered the service of the Commission on 16 January 2002, as a member of the auxiliary staff. On 1 July 2003 she was appointed as a probationary official. Before entering the service of the Commission, she had worked for a private firm in Brussels from 15 January 1996 to 16 August 1998, for the same firm in Helsinki from 17 August 1998 to 2 September 1998 and from 7 September 1998 to 15 January 2002 in Brussels for ‘Finpro’, a Finnish non profit-making organisation.
   By this action the applicant contests the decision of the Commission not to grant her the expatriation allowance. She pleads a breach of Article 4(1)(a) of Annex VII of the Staff Regulations, pointing out that she did not live in Brussels or carry out her principal professional activity there for the whole of the reference period laid down by that provision, as she lived and worked in Helsinki from 17 August 1998 to 2 September 1998. In the alternative, she submits that ‘Finpro’ was part of the Finnish Permanent Representation to the European Union and that, therefore, the period during which she worked there should not be taken into account as that constituted work done for another State.


C 233/20               EN                  Official Journal of the European Communities                                    28.9.2002
        Removal from the register of Case C-289/00 ( 1)                       Removal from the register of Case C-210/01 ( 1)
                        (2002/C 233/32)                                                         (2002/C 233/35)
By order of 3 July 2002 the President of the Court of Justice of      By order of 15 July 2002 the President of the First Chamber of
the European Communities ordered the removal from the                 the Court of Justice of the European Communities ordered the
register of Case C-289/00 (Reference for a preliminary ruling         removal from the register of Case C-210/01: Commission of
by the Corte d’appello di Genova): Fincantieri — Cantieri             the European Communities v Italian Republic.
Navali Italiani SpA and Finmeccanica SpA v Federico Bianchi
and Others.
                                                                      (1 ) OJ C 212 of 28.7.2001.
( 1) OJ C 285 of 7.10.2000.
                                                                              Removal from the register of Case C-458/01 ( 1)
        Removal from the register of Case   C-352/00 ( 1)
                                                                                (2002/C 233/36)
                        (2002/C 233/33)
                                                                      By order of 19 June 2002 the President of the Court of Justice
By order of 2 July 2002 the President of the Court of Justice of      of the European Communities ordered the removal from the
the European Communities ordered the removal from the                 register of Case C-458/01: Commission of the European
register of Case C-352/00: Italian Republic v Council of the          Communities v Italian Republic.
European Union.
                                                                      (1 ) OJ C 84 of 6.4.2002.
( 1) OJ C 355 of 9.12.2000.
                                                                              Removal from the register of Case C-50/02 (1)
        Removal from the register of Case C-86/01 (1)
                        (2002/C 233/34)                                                         (2002/C 233/37)
By order of 2 July 2002 the President of the Court of Justice of      By order of 11 July 2002 the President of the Court of Justice
the European Communities ordered the removal from the                 of the European Communities ordered the removal from
register of Case C-86/01: Commission of the European Com-             the register of Case C-50/02: Commission of the European
munities v Republic of Austria.                                       Communities v Italian Republic.
( 1) OJ C 118 of 21.4.2001.                                           (1 ) OJ C 84 of 6.4.2002.


title: Order of the Court of First Instance of 13 December 2002 in Case T-112/02: Gustaaf Van Dyck v Commission of the European Communities (Officials — Classification of grade upon recruitment — Application for reclassification — New fact — Meaning)

text:
8.3.2003                EN                           Official Journal of the European Union                                          C 55/25
— Schneider-Legrand) — the Court of First Instance (First                    (1) Annuls Commission Decision C (2002) 360 final of 30 Janu-
Chamber), composed of B. Vesterdorf, President, N.J. Forwood                       ary 2002 ordering the separation of undertakings (Case
and H. Legal, Judges; B. Pastor, Deputy Registrar, for the                         COMP/M.2283 — Schneider — Legrand);
Registrar, has given a judgment on 22 October 2002, in which
it:                                                                          (2) Orders the Commission to bear its own costs and to pay the
                                                                                costs incurred by the applicant, including the costs of the
1.     Annuls Commission Decision C(2001)3014 final of 10 Octo-                    interlocutory proceedings in Case T-77/02 R;
       ber 2001 declaring a concentration to be incompatible with the
       common market and the EEA Agreement (Case COMP/                       (3) Orders Legrand SA, the Comité Central d’Entreprise de la SA
       M.2283 — Schneider-Legrand);                                                Legrand and the Comité Européen du Groupe Legrand to bear
                                                                                their own costs.
2.     Orders the Commission to bear its own costs and, in addition,
       to pay those incurred by Schneider Electric SA;
                                                                             (1 ) OJ C 118 of 18.5.2002.
3.     Orders the Comité Central d’Entreprise de SA Legrand and the
       Comité Européeen du Groupe Legrand to bear their own costs;
4.     Orders the French Republic to bear its own costs.
( 1) OJ C 56 of 2.3.2002.
                                                                                ORDER OF THE COURT OF FIRST INSTANCE
                                                                                of 13 December 2002
     JUDGMENT OF THE COURT OF FIRST INSTANCE                                 in Case T-112/02: Gustaaf Van Dyck v Commission of the
                                                                                European Communities (1)
                        of 22 October 2002
                                                                             (Officials — Classification of grade upon recruitment —
in Case T-77/02: Schneider Electric SA v Commission of                          Application for reclassification — New fact — Meaning)
                  the European Communities (1)
                                                                                (2003/C 55/72)
(Competition — Regulation No 4064/89 — Decision
ordering separation of undertakings — Article 8(4) of
Regulation No 4064/89 — Illegality of the decision declaring                                     (Language of the case: Dutch)
a concentration incompatible with the common market —
           Ensuing illegality of the divestiture decision)
                           (2003/C 55/71)                                    In Case T-112/02, Gustaaf Van Dyck, an official of the
                                                                             Commission of the European Communities, resident in
                                                                             Wuustwezel (Belgium), represented by M.E. Storme and
                     (Language of the case: French)                          A. Gobien, avocats, against the Commission of the
                                                                             European Communities (agents: F. Clotuche-Duvieusart and
                                                                             H.M.H. Speyart), seeking to set aside the Commission’s refusal
                                                                             to accede to the applicant’s request for reclassification, the
In Case T-77/02: Schneider Electric SA, established in Rueil-                Court of First Instance (First Chamber), composed of
Malmaison (France), represented by A. Winckler and É. de La                  B. Vesterdorf, President, and R.M. Moura Ramos and H. Legal,
Serre, lawyers, against Commission of the European Com-                      Judges; Registrar: H. Jung, made an order on 13 December
munities (Agents: P. Oliver, P. Hellström and F. Lelièvre),                  2002 in which it:
supported by Legrand SA, established in Limoges (France),
represented by H. Calvet, lawyer, Comité central d’entreprise
de la SA Legrand, Comité européen du Groupe Legrand,                         (1) Dismissed the application as inadmissible.
established in Limoges, represented by H. Masse-Dessen,
lawyer — application for annulment of Commission Decision                    (2) Ordered the parties to bear their own costs.
C (2002) 360 final of 30 January 2002, ordering a separation
of undertakings (Case COMP/M.2282 — Schneider-Legrand)
— the Court of First Instance (First Chamber), composed of                   (1 ) OJ 2002 C 131, p. 26.
B. Vesterdorf, President, N.J. Forwood and H. Legal, Judges;
B. Pastor, Deputy Registrar, for the Registrar, has given a
judgment on 22 October 2002, in which it:


title: Case C-500/06: Reference for a preliminary ruling from the Giudice di Pace di Genova (Italy) lodged on 11 December 2006 — Corporación Dermoestética SA v To Me Group Advertising Media

text:
               24.2.2007

               EN

               Official Journal of the European Union

               C 42/10

         Reference for a preliminary ruling from the Giudice di Pace di Genova (Italy) lodged on 11 December 2006 — Corporación Dermoestética SA v To Me Group Advertising Media
   (Case C-500/06)
   (2007/C 42/17)
   Language of the case: Italian
   Referring court
   Giudice di Pace di Genova
   Parties to the main proceedings

      Applicant: Corporación Dermoestética SA

      Defendant: To Me Group Advertising Media SRL
   Questions referred

               1.

               Is it incompatible with Article 49 of the EC Treaty for national legislation, such as that under Articles 4, 5 and 9a of Law No 175 of 1992 and Ministerial Decree No 657 of 16 September 1994, and/or administrative practices to prohibit the broadcasting on national television of advertisements for medical and surgical treatments carried out in private health care establishments duly authorised for that purpose, even though that same advertising is permitted on local television networks, and, at the same time, to impose, in relation to the broadcasting of those advertisements, a ceiling on expenditure of 5 per cent of declared income for the preceding year?

               2.

               Is it incompatible with Article 43 of the EC Treaty for national legislation, such as that under Articles 4, 5 and 9a of Law No 175 of 1992 and Ministerial Decree No 657 of 16 September 1994, and/or administrative practices to prohibit the broadcasting on national television of advertisements for medical and surgical treatments carried out in private health care establishments duly authorised for that purpose, even though that same advertising is permitted on local television networks, and, at the same time, to require, in relation to the broadcasting of those advertisements, prior authorisation from each individual municipality and the opinion of the provincial professional association, and to impose a ceiling on expenditure of 5 per cent of declared income for the previous year?

               3.

               Is it contrary to Articles 43 and/or 49 of the EC Treaty for the broadcasting of advertisements which provide information on medical and surgical treatments of an aesthetic nature in private health care establishments, duly authorised for that purpose, to be made subject to additional prior authorisation by the local authorities and/or professional associations?

               4.

               By adopting a code of conduct which lays down limits on the advertising of the health care professions and by construing the legislation in force concerning the advertising of medical services in a manner which considerably restricts the right of doctors to advertise their own activities, both measures being binding on all doctors, have the National Federation of Associations of Doctors, Surgeons and Dentists (FNOMCeO) and the associations of group practices restricted competition beyond what is permitted under the relevant national legislation and in breach of Article 81(1) EC?

               5.

               In any event, is the interpretative practice adopted by the FNOMCeO incompatible with Articles 3(g), 4, 98, 10, 81 and, possibly, Article 86 of the EC Treaty in so far as the practice is permitted by a national law which requires the appropriate provincial associations to verify the transparency and accuracy of advertisements by doctors without indicating the criteria and procedures to be applied in exercising that authority?


title: Case T-322/01: Action brought on 20 December 2001 by Roquette Frères S.A. against the Commission of the European Communities

text:
16.3.2002               EN                      Official Journal of the European Communities                                     C 68/13
Pleas in law and main arguments                                            on 17 December 2001 by Omar Mohamed Othman, represent-
                                                                           ed by Ms Fiona Lindsley of Birnberg Peirce & Partners, London
                                                                           (United Kingdom)
The applicant has since 1993 been the sole owner of Glucona
B.V., a company producing sodium gluconate. Glucona had
previously been a joint venture between the applicant and its              The applicant claims that the Court should:
then partner. Glucona was involved in a cartel concerning the
sale of sodium gluconate. The contested decision orders the                —     Annul Council Regulation 467/2001 and Commission
applicant to pay a fine in that regard.                                          Regulation 2062/2001.
In support of its claim, the applicant pleads, primarily,
failure to comply with essential procedural requirements. In
                                                                           Pleas in law and main arguments
particular, it asserts that its rights of defence have been violated
and that an insufficient statement of reasons was given. Thus,
the applicant was not given an opportunity to comment on                   The applicant in the present case, a citizen of Jordan and
the statements made about the applicant by another party                   lawfully residing in the United Kingdom, challenges Council
involved in the investigation.
                                                                           Regulation (EC) No 467/2001 and Regulation (EC)
                                                                           No 2062/2001 of 19 October 2001, amending, for the third
                                                                           time, Council Regulation (EC) No 467/2001 prohibiting
The applicant further pleads infringement of Article 81(1) EC
                                                                           the export of certain goods and services to Afghanistan,
and Article 15(2) of Regulation No 17/62 (1). According to the
                                                                           strengthening the flight ban and extending the freeze of funds
applicant, the conduct of Glucona during the period from
                                                                           and other financial resources in respect of the Taliban of
1987 and 1993 cannot be attributed to it. During that period
                                                                           Afghanistan and repealing Regulation (EC) No 337/2000 (1).
the applicant’s partner in Glucona was responsible for sales
                                                                           The applicant is named in Regulation (EC) 2062/2001.
policy and the applicant itself had no information whatever in
that regard. It was not until 1993, when the applicant obtained
total control over Glucona, that it was made aware of the
                                                                           According to the applicant, the Council and the Commission
cartel and was thus placed in a position of responsibility
                                                                           have misused their powers conferred by Article 60 and 301
therefor.
                                                                           EC Treaty in adopting the Regulations in question. Further-
                                                                           more, the applicant contends that the Regulations violate his
                                                                           human rights, specifically Articles 3 and 8 of the European
Lastly, the applicant pleads violation of the principle of
                                                                           Convention on Human Rights. Finally, the applicant claims
proportionality, inasmuch as the Commission failed to take
                                                                           that the measures are disproportionate and in violation of the
account of the purely passive role played by the applicant in
                                                                           principle of subsidiarity.
the cartel until 1993.
                                                                           (1) OJ L 277, of 20.10.2001, p. 25.
(1) Regulation No 17: First Regulation implementing Articles 85
    and 86 of the Treaty (OJ, English Special Edition 1959-1962,
    p. 87).
                                                                           Action brought on 20 December 2001 by Roquette
                                                                           Frères S.A. against the Commission of the European
Action brought on 17 December 2001 by Omar Mohamed                                                   Communities
Othman against the Council of the European Union and
       the Commission of the European Communities
                                                                                (Case T-322/01)
                          (Case T-318/01)
                                                                                (2002/C 68/25)
                           (2002/C 68/24)
                                                                                (Language of the case: French)
                   (Language of the case: English)
                                                                           An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
An action against the Council of the European Union and the                European Communities on 20 December 2001 by Roquette
Commission of the European Communities was brought                         Frères S.A., established at Lestrem (France), represented by
before the Court of First Instance of the European Communities             Antoine Choffel and Olivier Prost, lawyers.
 ---pagebreak--- C 68/14                EN                     Official Journal of the European Communities                                       16.3.2002
The applicant claims that the Court should:                                    —     assessed the role played by Roquette in the cartel
                                                                                without taking account of part played by he appli-
                                                                                cant in restraining its implementation;
—     annul Article 1 of the contested decision in so far as it
      considers — in the case of Roquette — that the infringe-
      ment lasted from February 1987 to June 1995;                             —     minimised the nevertheless decisive nature of the
                                                                                information supplied by Roquette to prove the
                                                                                existence of the cartel and to explain the way in
—     annul Article 3 of the contested decision in so far as it                      which it worked;
      imposes a fine of 10,8 million euros on Roquette Frères;
                                                                         —     violation of the principle ne bis in idem, inasmuch as the
—     in the exercise of its unlimited jurisdiction, reduce the                Commission failed to take account of the fact that
      amount of the fine imposed on Roquette Frères;                           Roquette had already been fined $ 2 500 000 by the US
                                                                               authorities on account of a breach concerning the same
                                                                               subject-matter as that giving rise to the contested decision.
—     order the Commission to pay the costs.
Pleas in law and main arguments
                                                                         Action brought on 11 December 2001 by Axions S.A.
By a decision adopted on 2 October 2001, the European Union              and Christian Belce against the Office for Harmonisation
imposed on the applicant company a fine of 10,8 million euros                 in the Internal Market (Trade Marks and Designs)
for having participated, together with other producers of
sodium gluconate, in an agreement and/or concerted practice
covering the entire European Economic Area whereby they                                           (Case T-324/01)
shared out sales quotas between them, fixed the price of the
product concerned and colluded as to the attribution of
                                                                                (2002/C 68/26)
contracts concluded with customers.
                                                                                (Language of the case: German)
By the present action, the applicant is contesting solely the
level of the fine imposed. In support of its claims, it pleads:
                                                                         An action against the Office for Harmonisation in the Internal
—     infringement of Article 15 of Regulation No 17 and                 Market (Trade Marks and Designs) was brought before the
      violation of the principles of equality and proportionality,       Court of First Instance of the European Communities on
      inasmuch as the Commission failed adequately to assess             11 December 2001 by Axions S.A., of Geneva (Switzerland),
      either the seriousness or the duration of the breach. More         and Christian Belce, of Veyrier (Switzerland), represented by
      particularly, according to the applicant, the defendant            C. Eckhartt, lawyer.
      included, in the turnover figure used to calculate the basic
      amount of the fine, the sales volumes relating to another
      product (stock-solutions) which never formed the subject-          The applicant claims that the Court should:
      matter of the breach. In addition, the Commission fixed
      the date of the breach as June 1995, whereas the leader            —     annul the decision adopted on 26 September 2001 by
      of the cartel in the Commission’s eyes itself confirmed                  the Third Board of Appeal of the Office for Harmonisation
      that Roquette had decided to cease providing statistics                  in the Internal Market (Trade Marks and Designs) in Case
      from 1994 onwards and various items of evidence arising                  No R 599/2001-3;
      from the Commission’s investigations and from the
      cooperation provided by the various undertakings
                                                                         —     order the defendant Office to pay the costs.
      showed that Roquette had left the cartel in 1994;
—     misapplication by the Commission of its guidelines for
      calculating fines, as regards mitigating factors, and of its       Pleas in law and main arguments
      communication concerning the non-imposition of fines
      or the reduction of the amount thereof in cartel cases. The
      applicant asserts in that connection that the defendant:
                                                                         The trade mark con-            a three-dimensional mark rep-
      —     assessed the supposed effects of the cartel without          cerned:                        resenting a cigar, brown in colour
            taking account of the information and evidence
            provided by the applicant, which show the limited            Goods or services:             goods in Class 30 (chocolate,
            effect which the cartel had on the market for the                                           chocolate goods, bakery wares
            product in question;                                                                        and confectionery)


title: Case T-402/02: Action brought on 27 December 2002 by August Storck KG against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
C 55/36               EN                         Official Journal of the European Union                                           8.3.2003
After finding an error in the wording of multiple-choice                 Pleas in law:                  —     Infringement               of
question number 35 of test (b), the jury decided to cancel that                                               Article 7(1)(b) of Regulation
question.                                                                                (EC) No 40/94 (1);
                                                                                —     Infringement of Article 7(3)
In support of her claims, the applicant alleges a manifest error                                              of Regulation (EC) No 40/
of assessment in the marking of questions number 21 in test                                                   94.
(a) and number 9 in test (c). She also alleges misuse of powers
in the present case.
                                                                         (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                              Community trade mark (OJ 1993 L 11, p. 1).
Action brought on 27 December 2002 by August Storck
KG against the Office for Harmonisation in the Internal
              Market (Trade Marks and Designs)                           Action brought on 27 December 2002 by August Storck
                                                                         KG against the Office for Harmonisation in the Internal
                        (Case T-396/02)                                                Market (Trade Marks and Designs)
                         (2003/C 55/89)                                                            (Case T-402/02)
                  (Language of the case: German)                                                    (2003/C 55/90)
                                                                                (Language of the case: German)
An action against the Office for Harmonisation in the Internal
Market (Trade Marks and Designs) was brought before the
Court of First Instance of the European Communities on
27 December 2002 by August Storck KG, Berlin, represented                An action against the Office for Harmonisation in the Internal
by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-              Market (Trade Marks and Designs) was brought before the
te, with an address for service in Luxembourg.                           Court of First Instance of the European Communities on
                                                                         27 December 2002 by August Storck KG, Berlin, represented
                                                                         by H. Wrage-Molkenthin, T. Reher and A. Heise, Rechtsanwäl-
The applicant claims that the Court should:                              te, with an address for service in Luxembourg.
—     set aside the decision of the Fourth Board of Appeal of
      the Office for Harmonisation in the Internal Market of             The applicant claims that the Court should:
      14 October 2002 in Case R 187/2001-4;
                                                                         —     set aside the decision of the Second Board of Appeal of
—     order the Office to pay the costs.                                       the Office for Harmonisation in the Internal Market of
                                                                               18 October 2002 in Case R 256/2001-2;
                                                                         —     order the Office to pay the costs.
Pleas in law and main arguments
Trade mark for which          A three-dimensional mark in the
Community registration        form of a caramel sweet of a               Pleas in law and main arguments
sought:                       light brown colour — Application
                              No 784314
                                                                         Trade mark for which           The pictorial mark consisting of
Goods or services:            Goods of Class 30 (confectionery)          Community registration         the illustration of a wrapped sweet
                                                                         sought:                        — Application No 784454
Decision       challenged     Refusal of registration by the
before the Board of           examiner                                   Goods or services:             Goods of Class 30 (sweets)
Appeal:
                                                                         Decision        challenged     Refusal of registration by the
Decision of the Board of      Dismissal of the complaint                 before the Board of            examiner
Appeal:                                                                  Appeal:
 ---pagebreak--- 8.3.2003               EN                         Official Journal of the European Union                                          C 55/37
Decision of the Board of       Dismissal of the complaint                 conducting several sets of civil proceedings before Austrian
Appeal:                                                                   courts against the Bank für Arbeit und Wirtschaft AG. He
                                                                          submits that, in order to conduct these proceedings success-
Pleas in law:                  —     Infringement               of        fully, in particular in order to underpin the claims made with
                                     Article 7(1)(b) of Regulation        the argument that the Bank’s incorrect conduct was part of a
                                     (EC) No 40/94 (1);                   systematic anti-competitive concerted practice over a number
                                                                          of years between the Austrian banks, it has sought authoris-
                               —     Infringement of Article 7(3)         ation to inspect the administrative records concerning the
                                     of Regulation (EC) No 40/            Commission’s competition proceedings against Austrian
                                     94;                                  banks. In the contested decision the Commission rejected the
                               —     Infringement of Article 74(1)        applicant’s application.
                                     of Regulation (EC) No 40/
                                     94;
                               —     Infringement of Article 73 of        The applicant claims that the contested decision runs counter
                                     Regulation (EC) No 40/94;            to the fundamental right of Union citizens granted under
                                                                          Article 255(1) and (2) EC and Article 42 of the EU Charter of
                               —     Infringement of the right to         Fundamental Rights to access to public documents. Further-
                                     a proper hearing.                    more, the decision conflicts with the provisions of Regulation
                                                                          (EC) No 1049/2001 (1). A once-for-all exclusion of the entirety
( 1) Council Regulation (EC) No 40/94 of 20 December 1993 on the          of the administrative records from the right to access to the
     Community trade mark (OJ 1993 L 11, p. 1).                           documents would, in the absence of closer examination of the
                                                                          individual documents for the purpose of determining whether
                                                                          or not they are suitable for publication, not be in accordance
                                                                          with the provisions of that regulation or the case-law of the
                                                                          Community judicature.
Action brought on 7 January 2003 by the Verein für
Konsumenteninformation (VKI) against the Commission                       The applicant goes on to claim that the exceptional circum-
                of the European Communities                               stances mentioned in the third indent of Article 4(2) of
                                                                          Regulation No 1049/2001 do not justify refusal of access to
                           (Case T-2/03)                                  the documents because the relevant inspection activities by
                                                                          the Commission have already been concluded. Nor are the
                          (2003/C 55/91)                                  requirements for application of the exception concerning
                                                                          protection of commercial interests satisfied since the Com-
                   (Language of the case: German)                         mission has not submitted in what manner banks’ commercial
                                                                          interests might specifically be jeopardised. Prevention of the
                                                                          making of justified claims by consumers who have suffered
                                                                          loss is not a commercial interest worthy of protection within
An action against the Commission of the European Communi-                 the meaning of Regulation No 1049/2001. Nor does the
ties was brought before the Court of First Instance of the                protection of court proceedings preclude the grant of access
European Communities on 7 January 2003 by the Verein für                  to inspect documents. Furthermore, protection of the private
Konsumenteninformation (Association for Consumer Infor-                   domain and of the individual’s integrity can readily be secured
mation — VKI), represented by A. Klausner, Lawyer.                        by ensuring the anonymity of records.
The applicant claims that the Court should:
—     annul Commission Decision (2002) 330472 of                          In addition, the applicant claims that there is an overriding
      18 December 2002 by which the applicant was entirely                public interest in inspection by the applicant of the Com-
      refused access to inspect the Commission’s records con-             mission’s records since collective enforcement of claims for
      cerning the competition proceedings against Austrian                compensation by consumers who have suffered loss is con-
      banks (COMP/36.571 ‘Lombard Club: Cartel’)                          ducive to both enforcement of EC competition law and the
                                                                          collective interests of consumers in the Community.
—     order the Commission to pay the costs.
Pleas and main arguments                                                  (1 ) Regulation (EC) No 1049/2001 of the European Parliament and
                                                                               of the Council of 30 May 2001 regarding public access to
                                                                               European Parliament, Council and Commission documents.
The applicant is a consumer organisation constituted under
the Austrian law on associations which in order to safeguard
the collective interests of consumers has special powers in
connection with civil proceedings. Currently, the applicant is


title: JUDGMENT OF THE COURT of 4 April 1995 in Case C-348/93: Commission of the European Communities v. Italian Republic (Failure of a Member State to fulfil its obligations - State aid incompatible with the common market - Recovery - Public holding company)

text:
3 . 6 . 95            EN J               Official Journal of the European Communities                                     No C 137/ 1
                                                                 I
                                                          (Information)
                                             COURT OF JUSTICE
                                                       COURT OF JUSTICE
               JUDGMENT OF THE COURT                                the Court does not have jurisdiction to give a preliminary
                      of 28 March 1995                              ruling on the question submitted by the Court of Appeal.
in Case C-346/93 ( reference for a preliminary ruling from
                                                                    (') OJ No C 231 , 27 . 8 . 1993 .
the Court of Appeal ): Kleinwort Benson Ltd v. City of              ( 2 ) OJ No L 299 , 31 . 12 . 1992 , p . 32 .
                  Glasgow District Council ( ] )                    (') OJ No L 304 , 30 . 10 . 1978 , p. 1 and — text of Convention as
(Brussels Convention — National legislation modelled on it                amended — p. 77 .
— Interpretation — Question submitted for a preliminary
          ruling — Lack of jurisdiction of the Court)
                         ( 95/C 137/01 )
                                                                                JUDGMENT OF THE COURT
                                                                                of 4 April 1995
                (Language of the case: English)                     in Case      C-348/93 : Commission of the                European
                                                                                Communities v. Italian Republic ( ! )
                                                                    (Failure of a Member State to fulfil its obligations — State
                                                                    aid incompatible with the common market — Recovery —
In Case C-346/93 : reference to the Court under the Protocol                            Public holding company)
of 3 June 1971 on the interpretation by the Court of Justice                                   ( 95/C 137/02 )
of the Convention of 27 September 1968 on jurisdiction and
the enforcement of judgments in civil and commercial
matters by the Court of Appeal for a preliminary ruling in                          (Language of the case: Italian)
the proceedings pending before that court between
Kleinwort Benson Ltd and City of Glasgow District Council           (Provisional translation; the definitive translation will be
— on the interpretation of Article 5 ( 1 ) and ( 3 ) of the                   published in the European Court Reports)
abovementioned Convention of 27 September 1968 ( 2 ), as
amended by the Convention of 9 October 1978 on the                  In Case C-348/93 : Commission of the European
Accession of the Kingdom of Denmark, Ireland and the                Communities (Agents : Antonino Abate and Vittorio Di
United Kingdom of Great Britain and Northern Ireland ( 3 )          Bucci ) v. Italian Republic ( Agent: Luigi Ferrari Bravo ) —
— the Court, composed of G. C. Rodriguez Iglesias,                  application for a declaration that, by failing to abolish and
President, F. A. Schockweiler ( Rapporteur ), P.J. G. Kapteyn       recover within the prescribed period the aid improperly paid
and C. Gulmann, Presidents of Chambers , G. F. Mancini,             to the Alfa Romeo Group in the amount of Lit 615,1
C. N. Kakouris , J. C. Moitinho de Almeida , J. L. Murray,          thousand million plus default interest calculated from
D. A. O. Edward, J.-P. Puissochet and G. Hirsch, Judges; G.         September 1991 to the date of payment of the amount in
Tesauro, Advocate-General ; H. von Holstein, Deputy                 question, and/or by failing to notify the Commission of the
Registrar, for the Registrar, gave a judgment on 28 March           measures adopted to that end, the Italian Republic has failed
 1995 , the operative part of which is as follows :                 to fulfil its obligations under Commission Decision
 ---pagebreak---  No C 137/2              EN                  Official Journal of the European Communities                                       3 . 6 . 95
  89/661 /EEC of 31 May 1989 concerning aid provided by                  1 . declares that, by failing to abolish and recover within the
 the Italian Government to Alfa Romeo, an undertaking in                      prescribed period the aid paid to the ENI-Lanerossi
 the motor vehicle sector (2 ) — the Court, composed of G. C.                 Group (now SNAM SpA) in the amount of Lit 260,4
 Rodriguez Iglesias, President, F. A. Schockweiler                            thousand million, the Italian Republic has failed to fulfil
  ( Rapporteur) ( President of Chamber ), G. F. Mancini, J. C.                its obligations under Commission Decision 89/43/EEC
 Moitinho de Almeida, J. L. Murray, D. A. O. Edward and                       of 26 July 1988 on aids granted by the Italian
J. -P. Puissochet, Judges; F. G. Jacobs, Advocate-General; L.                 Government to ENI-Lanerossi;
 Hewlett, Administrator, for the Registrar, has given a
 judgment on 4 April 1995 , in which it:
                                                                        2 . dismisses the remainder of the application;
  1 . declares that, by failing to abolish and recover within the
       prescribed period the aid improperly paid to the Alfa            3 . orders the Italian Republic to pay the costs.
       Romeo Group in the amount of Lit 615,1 thousand
       million plus default interest calculated from                    (') OJ No C 222 , 18 . 8 . 1993 .
       30 September 1989 to the date of payment of the                  ( 2 ) OJ No L 16 , 20 . 1 . 1989 , p . 52 .
       amount in question, the Italian Republic has failed to
       fulfil its obligations under Commission Decision
       89/661 /EEC of 31 May 1989 concerning aid provided
       by the Italian Government to Alfa Romeo, an
       undertaking in the motor vehicle sector;
 2 . dismisses the remainder of the application;                                        JUDGMENT OF THE COURT
                                                                                of 5 April 1995
 3 . orders the Italian Republic to pay the costs.                      in Case C-103/94 (reference for a preliminary ruling from
                                                                        the Tribunal des Affaires de Sécurité Sociale, Nanterre
 (') OJ No C 231 , 27 . 8 . 1993 .                                      (France)): Zoulika Krid v. Caisse Nationale d'Assurance
 ( 2 ) OJ No L 394, 30 . 12 . 1989 , p . 9 .                                   Vieillesse des Travailleurs Salariés ( CNAVTS ) i})
                                                                        (EEC-Algeria Cooperation Agreement — Article 39 (1) —
                                                                        Direct effect — Principle ofnon-discrimination — Scope —
                                                                         Widow of Algerian worker who had been employed in a
                                                                        Member State — Supplementary allowance from the
                                                                                National Solidarity Fund)
                 JUDGMENT OF THE COURT
                                                                                ( 95/C 137/04 )
                          of 4 April 1995
in Case C-350/93 : Commission of the European
               Communities v. Italian Republic ( J )                                     (Language of the case: French)
 (Failure of a Member State to fulfil its obligations — State
aid incompatible with the common market — Recovery —                    (Provisional translation; the definitive translation will be
                     Public holding company)                                       published in the European Court Reports)
                           ( 95/C 137/03 )
                                                                       In Case C-103/94 : reference to the Court under Article 177
                  (Language of the case: Italian)                      of the EC Treaty from the Tribunal des Affaires de Securite
                                                                       Sociale ( Social Security Court), Nanterre ( France ) for a
(Provisional translation; the definitive translation will be           preliminary ruling in the proceedings pending before that
                                                                       court      between    Zoulika       Krid     and Caisse Nationale
           published in the European Court Reports)
                                                                       d'Assurance Vieillesse des Travailleurs Salaries ( CNAVTS )
                                                                       — on the interpretation of Article 39 ( 1 ) of the Cooperation
In Case C-350/93 : Commission of the European                          Agreement between the European Economic Community
Communities (Agents : Antonino Abate and Vittorio di                   and the People's Democratic Republic of Algeria, signed in
Bucci ) v. Italian Republic (Agent: Luigi Ferrari Bravo ) —            Algiers on 26 April 1976 and approved on behalf of the
application for a declaration that, by failing to abolish and          Community by Council Regulation ( EEC ) No 2210/78 of
recover within the prescribed period the aid paid to the               26 September 1978 (2 ) — the Court, composed of G. C.
ENI-Lanerossi Group ( now SNAM SpA ) in the amount of                  Rodriguez Iglesias, President, F. A. Schockweiler
Lit 260,4 thousand million, the Italian Republic has failed to         ( Rapporteur ) and C. Gulmann ( Presidents of Chambers ),
fulfil its obligations under Commission Decision 89/43/EEC             G. F. Mancini, C. N. Kakouris, J. C. Moitinho de Almeida,
of 26 July 1988 on aids granted by the Italian Government              J. L Murray, D. A. O. Edward, J.-P. Puissochet, G. Hirsch
to ENI-Lanerossi ( 2 ) — the Court, composed of G. C.                  and L. Sevon, Judges; G. Tesauro, Advocate-General; L.
Rodriguez Iglesias, President, F. A. Schockweiler                      Hewlett, Administrator, for the Registrar, has given a
( Rapporteur ) ( President of Chamber ), G. F. Mancini, J. C.          judgment on 5 April 1995 , in which it:
Moitinho de Almeida , J. L. Murray, D. A. O. Edward and
J.-P. Puissochet, Judges; F. G. Jacobs, Advocate-General; L.
Hewlett, Administrator, for the Registrar, has given a                 Article 39 (1 ) of the Cooperation Agreement between the
judgment on 4 April 1995 , in which it:                                European Economic Community and the People 's


title: Case T-414/08: Action brought on 29 September 2008 — AKKA/LAA v Commission

text:
               6.12.2008

               EN

               Official Journal of the European Union

               C 313/39

         Action brought on 29 September 2008 — AKKA/LAA v Commission
   (Case T-414/08)
   (2008/C 313/71)
   Language of the case: English
   Parties

      Applicant: Autortiesību un komunicēšanās konsultāciju aģentūra/Latvijas Autoru apvienība (AKKA/LAA) (Riga, Latvia) (represented by: M. Favart, lawyer)

      Defendant: Commission of the European Communities
   Form of order sought

               —

               Annul Article 3 of the Commission Decision of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38698 — CISAC); and

               —

               Order the Commission to pay the costs.

         Pleas in law and main arguments
   By means of the present application, the applicant seeks, pursuant to Article 230 EC, the annulment of Article 3 of Commission Decision C(2008) 3435 of 16 July 2008 relating to a proceeding under Article 81 EC and Article 53 EEA (Case COMP/C2/38698 — CISAC) alleging that 24 of CISAC's (1) EEA based societies, including the applicant, engaged in a concerted practice ‘by coordinating the territorial delineations of the reciprocal representation mandates granted to one another in a way which limits a licence to the domestic territory of each collecting society’.
   The main pleas and arguments are similar or identical to those raised in Case T-413/08.

      (1)  Refers to the International Confederation of Societies of Authors and Composers (‘CISAC’).


title: JUDGMENT OF THE COURT of 22 April 1997 in Case C-310/95 (reference for a preliminary ruling from the Tariefcommissie): Road Air BV v. Inspecteur der Invoerrechten en Accijnzen (Association of overseas countries and territories - Import into the Community of goods originating in a non-member country but in free circulation in an overseas country or territory - Article 227 (3) of the EC Treaty - Part Four of the EC Treaty (Articles 131 to 136a) - Council Decisions 86/283/EEC, 91/110/EEC and 91/482/EEC)

text:
No C 199/6             1 EN 1                 Official Journal of the European Communities                                   28 . 6 . 97
                 JUDGMENT OF THE COURT                                                  JUDGMENT OF THE COURT
                            of 22 April 1997                                                      of 22 April 1997
in Case C-3 10/95 (reference for a preliminary ruling from               in Case C-395/95 P: Geotronics SA v. Commission of the
the Tariefcommissie ): Road Air BV v. Inspecteur der
                                                                                European Communities (')
                  Invoerrechten en Accijnzen (')
(Association of overseas countries and territories —                     (Phare Programme — Restricted invitation to tender —
Import into the Community of goods originating in a non                  Action for annulment — Admissibility — EEA Agreement
member country but in free circulation in an overseas                    — Product origin — Discrimination — Action for
country or territory — Article 227 (3) of the EC Treaty —                                              damages)
Part Four of the EC Treaty (Articles 131 to 136a) —
Council Decisions 86/283/EEC, 91/110/EEC and 91/482/                                                ( 97/C 199/ 10 )
                                   EEC)
                              ( 97/C 199/09 )
                                                                                (Language of the case: English)
                  (Language of. the case: Dutch)
    (Provisional translation; the definitive translation will be         In Case C-395/95 P: Geotronics SA, a company
            published in the European Court Reports)                     incorporated under the laws of France, having its
                                                                         registered office at Lognes ( France ), represented by
                                                                         Tommy Pettersson, of the Swedish Bar, with an address
In Case C-3 10/95 : reference to the Court under Article 177             for service in Luxembourg at the Chambers of Arendt &
of the EC Treaty from the Tariefcommissie                                Medernach, 8-10 Rue Mathias Hardt — appeal against
 ( Administrative Court for Customs and Excise )                         the judgment of the Court of First Instance of 26 October
 ( Netherlands ) for a preliminary ruling in the proceedings              1995 in Case T-185/94 Geotronics v. Commission [ 1995 ]
pending before that court between Road Air BV and                        ECR 11-2795 , seeking to have that judgment set aside, the
Inspecteur der Invoerrechten en Accijnzen — on the                       other party to the proceedings being: Commission of the
 interpretation of the provisions of Part Four of the EEC                European Communities ( Agent: John Forman ) — the
Treaty and on the validity and interpretation of Council                 Court, composed of: G. C. Rodriguez Iglesias, President,
Decision 86/283/EEC of 30 June 1986 on the association                   J. C. Moitinho de Almeida, J. L. Murray and L. Sevón,
 of the overseas countries and territories with the European              ( Presidents of Chambers ), C. N. Kakouris, P. J. G.
 Economic Community ( OJ No L 175 , 1 . 7. 1986, p. 1 ,                  Kapteyn, C. Gulmann, G. Hirsch, P. Jann, H. Ragnemalm
 hereinafter 'the Fifth Decision') and Council Decision 91 /              and M. Wathelet ( Rapporteur), Judges; G. Tesauro,
  110/EEC of 27 February 1991 extending the validity of                  Advocate-General ; H. von Holstein, Deputy Registrar, for
 Council Decision 86/283/EEC ( OJ No L 58 , 5 . 3 . 1991 ,               the Registrar, has given a judgment on 22 April 1997, in
 p. 27) — the Court, composed of: G. C. Rodriguez                        which it:
 Iglesias, President, G. F. Mancini, J. C. Moitinho de
 Almeida , J. L. Murray and L. Sevón ( Presidents of
 Chambers ), C. N. Kakouris, P. J. G. Kapteyn, C. Gulmann ,
 D. A. O. Edward ( Rapporteur ), J. -P. Puissochet, G.                    1 . sets aside the judgment of the Court of First Instance
 Hirsch, P. Jann, H. Ragnemalm, M. Wathelet and R.                             of 26 October 1995 in Case T-185/94 Geotronics v.
 Schintgen, Judges; D. Ruiz-Jarabo Colomer, Advocate                           Commission in so far as it dismissed the application
 General; H. A. Rühl, Principal Administrator, for the                         for annulment of the Commission 's letter of 10 March
 Registrar, has given a judgment on 22 April 1997, in                          1 994 as inadmissible;
 which it has ruled :
 Part Four of the EC Treaty, and more particularly                        2 . dismisses the remainder of the appeal;
 Articles 132 (1 ), 133 (1 ) and 134, must be interpreted as
 meaning that on 25 June 1991 customs duties could be
  levied on imports into the Community of goods
  originating in non-member countries which were in free                  3 . dismisses the application for annulment;
  circulation in a country forming part of the overseas
  countries and territories, to the extent to which, in
  accordance with Article 101 of Council Decision 91 /482/
  EEC of 25 July 1991 on the association of the overseas                  4.   orders Geotronics SA to bear all the costs incurred
  countries and territories with the European Economic                         both in the proceedings before the Court of First
  Community, the duties paid in the overseas country or                        Instance and in those before the Court of Justice.
  territory in question were lower than the duties applicable
  in the Community.
                                                                           O OJ No C 64 , 2 . 3 . 1996 .
  ( ] ) OJ No C 299 , 11 . 11 . 1995 .


title: Case C-287/01: Action brought on 19 July 2001 by the Commission of the European Communities against the French Republic

text:
1.9.2001               EN                     Official Journal of the European Communities                                         C 245/19
—     Order the French Government to pay the costs.                      2001 by the Commission of the European Communities,
                                                                         represented by P. Nemitz and B. Mongin, acting as Agents.
Pleas in law and main arguments                                          The applicant claims that the Court should:
                                                                         —     Declare that, by failing to adopt and bring into force
Article 32 of Directive 98/10/EC provides that Member States                   within the prescribed period the laws, regulations and
are to bring into force within the prescribed period the laws,                 administrative provisions necessary to comply with
regulations and administrative provisions necessary to comply                  Directive 97/51/EC (1), the French Republic has failed to
with this Directive by 30 June 1998 and forthwith inform the                   fulfil its obligations under Article 3 of that directive and
Commission thereof.                                                            Article 249 EC; and
                                                                         —     Order the French Government to pay the costs.
There is no question but that the French authorities must
adopt the provisions necessary to comply with Article 6(3)
and (4) and Articles 10, 21 and 26 of the directive.                     Pleas in law and main arguments
                                                                         Article 3 of Directive 97/51/EC provides that Member States
(1) Directive 98/10/EC of the European Parliament and of the Council     are to bring into force within the prescribed period the laws,
    of 26 February 1998 on the application of open network               regulations and administrative provisions necessary to comply
    provision (ONP) to voice telephony and on universal service for      with this Directive by 31 December 1997 and forthwith
    telecommunications in a competitive environment (OJ 1998             inform the Commission thereof.
    L 101, p. 24).
                                                                         There is no question but that the French authorities must adopt
                                                                         the provisions necessary to comply with first subparagraph of
                                                                         the second indent in Article 4 and Articles 6(1) and (3)(a) and
                                                                         10(4) of Council Directive 92/44/EEC of 5 June 1992 on the
                                                                         application of open network provision to leased lines (2), as
Action brought on 19 July 2001 by the Commission of                      amended by Directive 97/51/EC.
 the European Communities against the French Republic
                                                                         The Commission has not yet been informed of any measures
                         (Case C-287/01)                                 adopted to that effect by the French authorities.
                        (2001/C 245/33)                                  (1) Directive 97/51/EC of the European Parliament and of the Council
                                                                             of 6 October 1997 amending Council Directives 90/387/EEC and
                                                                             92/44/EEC for the purpose of adaptation to a competitive
An action against French Republic was brought before the                     environment in telecommunications (OJ 1997 L 295, p. 23).
Court of Justice of the European Communities on 19 July                  (2) OJ L 165, 19.6.1992, p. 27.


title: Case C-421/01: Reference for a preliminary ruling by the Bundesvergabeamt (Austria) by order of 25 September 2001 in the case of Traunfellner GmbH v Österreichische Autobahnen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)

text:
C 3/16                EN                    Official Journal of the European Communities                                       5.1.2002
2.   If the answer to Question 1(a) is in the affirmative:             3.    Is the material outlay (in particular in regard to costs) in
                                                                             which clients who have hitherto been supplied with the
                                                                             product of the undertaking having a dominant market
     (a)   Must the question concerning the similarity between               position would be involved if they were in future to go
           the trade mark and the sign in such a case be                     over to purchasing the product of a competing undertak-
           assessed on the basis of a criterion other than that              ing which does not make use of the data bank protected
           of (direct or indirect) confusion as to origin, and if            by copyright relevant to the question of abusive conduct
           so, according to what criterion?                                  by an undertaking with a dominant position on the
                                                                             market?
     (b) If the sign alleged to be an infringement in such a
           case is viewed purely as an embellishment by the
           relevant section of the public, what importance must
           be attached to that circumstance in connection with
           the question concerning the similarity between the
           trade mark and the sign?
                                                                       Reference for a preliminary ruling by the Bundesverga-
                                                                       beamt (Austria) by order of 25 September 2001 in the
                                                                       case of Traunfellner GmbH v Österreichische Autobah-
                                                                          nen- und Schnellstrassen-Finanzierungs-AG (ÖSAG)
Reference for a preliminary ruling by the Landgericht
Frankfurt am Main by order of that court of 12 July 2001                                       (Case C-421/01)
in the case of IMS Health GmbH & Co. OHG v NDC
                      Health GmbH & Co
                                                                                (2002/C 3/24)
                        (Case C-418/01)
                          (2002/C 3/23)
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of 25 September 2001 by
                                                                       the Bundesvergabeamt (Austrian Federal Procurement Office),
                                                                       which was received at the Court Registry on 24 October 2001,
Reference has been made to the Court of Justice of the                 for a preliminary ruling in the case of Traunfellner GmbH v
European Communities by order of the Landgericht Frankfurt             Österreichische Autobahnen- und Schnellstrassen-Finan-
am Main (Regional Court) of 12 July 2001, which was received           zierungs-AG (ÖSAG) on the following questions:
at the Court Registry on 22 October 2001, for a preliminary
ruling in the case of IMS Health GmbH & Co. OHG v NDC
Health GmbH & Co on the following questions:                           Question 1
                                                                       Is an alternative tender that consists in proposing an asphalt
1.   Is Article 82 EC to be interpreted as meaning that there is       surface instead of overlaying the carriageway with concrete as
     abusive conduct by an undertaking with a dominant                 specified in the tender document a ‘variant’ within the meaning
     position on the market where it refuses to grant a licence        of the first paragraph of Article 19 of Directive 93/37/EEC (1)?
     agreement for the use of a data bank protected by
     copyright to an undertaking which seeks access to the
     same geographical and actual market if the participants           Question 2
     on the other side of the market, that is to say potential
     clients, reject any product which does not make use of
     the data bank protected by copyright because their set-up         Can a criterion established in national legislation to determine
     relies on products manufactured on the basis of that data         the admissibility of the acceptance of a ‘variant’ within the
     bank?                                                             meaning of the first paragraph of Article 19 of Directive
                                                                       93/37/EEC, whereby ‘the performance of qualitatively equiva-
                                                                       lent work is ensured’ by the variant, properly be regarded as a
2.   Is the extent to which an undertaking with a dominant             ‘minimum specification’ required and stated by the contracting
     position on the market has involved persons from the              authority in accordance with the first and second paragraphs
     other side of the market in the development of the data           of Article 19 of Directive 93/37/EEC, if the tender document
     bank protected by copyright relevant to the question of           refers only to the national provision and does not specify the
     abusive conduct by that undertaking?                              comparative parameters to be used to assess ‘equivalence’?
 ---pagebreak--- 5.1.2002              EN                   Official Journal of the European Communities                                          C 3/17
Question 3                                                            1.    On a proper construction of the second subparagraph of
                                                                            Chapter I(2) in Annex A to Council Directive
Does Article 30(1) and (2) of Directive 93/37/EEC in conjunc-               85/73/EEC (1) as amended and consolidated by Council
tion with the principles of transparency and equal treatment                Directive 96/43/EC (2), is an establishment which is
prohibit a contracting authority from making the acceptance                 situated in the same building as a cutting plant but whose
of an alternative tender, which differs from a tender con-                  operator is a natural or legal person other than the
forming to the tender document in that it proposes a different              operator of the cutting plant also to be regarded as the
technical quality, conditional on a positive assessment based               ‘establishment where the meat is obtained’?
on a criterion in national legislation requiring that ‘the
performance of qualitatively equivalent work is ensured’ if the
tender document refers only to the national provision and             2.    Which criteria are relevant to the fee-levying authority’s
does not specify the comparative parameters to be used to                   decision regarding the extent to which it grants a
assess ‘equivalence’?                                                       reduction of the fees of up to 55 % as provided for in the
                                                                            second subparagraph of Chapter I(2) in Annex A to the
Question 4a                                                                 abovementioned directive?
If the answer to Question 3 is in the affirmative, may a
                                                                            In that regard, may in particular the fact that staff need
contracting authority conclude a tendering procedure like that
                                                                            less time to carry out the controls or inspections also be
described in Question 3 by awarding the contract?
                                                                            taken into consideration where the fees in respect of such
Question 4b                                                                 controls and inspections are determined by the addition
                                                                            of a standard amount pursuant to the first subparagraph
If the answers to Questions 3 and 4a are in the affirmative,                under (a) of Chapter I(2) in Annex A to the abovemen-
must a contracting authority conducting a tendering procedure               tioned directive?
as described in Question 3 reject variants proposed by
tenderers without examining their contents, at any rate if it               Moreover, if Question 1 is answered in the affirmative,
has not defined contract award criteria for assessing the                   when reducing the fee, may account nevertheless be taken
technical differences between the variant and the tender                    of the fact that the establishments situated in one building
document?                                                                   are attributable to operators regarded in law as distinct,
                                                                            and may this in principle lead to a situation where in
Question 5                                                                  such cases less of a reduction is granted than in cases
If the answers to Questions 3 and 4a are in the affirmative and             where the slaughterhouse and cutting plant are not only
the answer to Question 4b is in the negative, must a contracting            situated in the same building but are also operated by the
authority conducting a tendering procedure as described in                  same natural or legal person?
Question 3 accept a variant whose technical differences from
the tender document it is unable to assess on the basis of
contract award criteria owing to the absence of appropriate           (1) OJ L 32 of 5.2.1985, p. 14.
statements in the tender document if this variant is the              (2) OJ L 162 of 1.7.1996, p. 1.
cheapest tender and contract award criteria have not otherwise
been defined?
(1) OJ L 199, p. 54.
                                                                      Reference for a preliminary ruling by the Bundesverga-
                                                                      beamt (Austria) by order of 25 October 2001 in the case
Reference for a preliminary ruling by the Verwaltungsge-              of CS Communications & Systems Austria GmbH v
richt Neustadt an der Weinstrasse by order of that court                          Allgemeine Unfallversicherungsanstalt
of 30 July 2001 in the case of Emil Färber GmbH & Co. v
                  Stadt Neustadt/Weinstrasse
                                                                                (Case C-424/01)
                        (Case C-423/01)
                                                                                (2002/C 3/26)
                         (2002/C 3/25)
Reference has been made to the Court of Justice of the                Reference has been made to the Court of Justice of the
European Communities by order of the Verwaltungsgericht               European Communities by order of 25 October 2001 by
(Administrative Court) Neustadt an der Weinstrasse of 30 July         the Bundesvergabeamt (Austrian Federal Procurement Office),
2001, which was received at the Court Registry on 26 October          which was received at the Court Registry on 26 October 2001,
2001, for a preliminary ruling in the case of Emil Färber             for a preliminary ruling in the case of CS Communications &
GmbH & Co. v Stadt Neustadt/Weinstrasse on the following              Systems Austria GmbH v Allgemeine Unfallversicherungsan-
questions:                                                            stalt on the following questions: