title: Case C-148/10: Reference for a preliminary ruling from the Hof van Beroep te Brussel, lodged on 29 March 2010 — Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie

text:
               19.6.2010

               EN

               Official Journal of the European Union

               C 161/20

      Reference for a preliminary ruling from the Hof van Beroep te Brussel, lodged on 29 March 2010 — Express Line NV v Belgisch Instituut voor Postdiensten en Telecommunicatie
      (Case C-148/10)
      (2010/C 161/29)
      Language of the case: Dutch

         Referring court

      Hof van Beroep te Brussel

         Parties to the main proceedings

         Appellant: Express Line NV

         Respondent: Belgisch Instituut voor Postdiensten en Telecommunicatie

         Questions referred

                  1.

                  Must the provisions of Directive 97/67/EC (1) of [15] December 1997 on common rules for the development of the internal market of Community postal services and the improvement of quality of service, as amended by Directive 2002/39/EC, (2) and in particular, but not exclusively, Article 19 thereof, in view of the amendments introduced by Directive 2008/6/EC (3) and which must be transposed into national law by 31 December 2010 at the latest, be understood and interpreted as precluding Member States from imposing a mandatory external complaints scheme on providers of non-universal postal services on the ground that:

                              (i)

                              as regards the applicable complaints procedures for the protection of the users of postal services, the Directive provides for full harmonisation; or on the ground that:

                              (ii)

                              that obligation was imposed by Directive 2002/39/EC only on the universal service provider and, since Directive 2008/6/EC, on all universal service providers, even though, according to the wording of the [third] subparagraph of Article 19(1) of [Directive 97/67/EC, as amended by] Directive 2008/6/EC, Member States may only encourage, but may not impose, the development of independent schemes for the resolution of disputes between the providers of postal services, other than universal postal services, and end-users?

                  2.

                  If the answer to the first question is that the Postal Directive does not, as such, preclude Member States from imposing on the providers of non-universal postal services a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, must the principles relating to the free movement of services (Article 49 et seq. EC; now Article 56 et seq. TFEU) be interpreted in such a way that restrictions on the free movement of services, introduced by a Member State on grounds of compelling reasons in the general interest relating to consumer protection, whereby the providers of non-universal postal services are made subject to a mandatory external complaints scheme as envisaged by the first subparagraph of Article 19(2) for the providers of universal postal services, can be considered compatible with the TFEU even if, in the application of the complaints scheme concerned, no distinction is made between the complaints of consumers and those of other end-users, although the vast majority of the users of those services (in the present case, express and courier services) are professional users?

         (1)  Directive of the European Parliament and of the Council on common rules for the development of the internal market of Community postal services and the improvement of quality of service (OJ 1998 L 15, p. 14).

         (2)  Directive of the European Parliament and of the Council of 10 June 2002 amending Directive 97/67/EC with regard to the further opening to competition of Community postal services (OJ 2002 L 176, p. 21).

         (3)  Directive of the European Parliament and of the Council of 20 February 2008 amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services (OJ 2008 L 52, p. 3).


title: Case T-383/10: Judgment of the General Court of 17 April 2013 — Continental Bulldog Club Deutschland v OHIM (CONTINENTAL) (Community trade mark — Application for Community word mark CONTINENTAL — Absolute ground for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009)

text:
               1.6.2013

               EN

               Official Journal of the European Union

               C 156/38

         Judgment of the General Court of 17 April 2013 — Continental Bulldog Club Deutschland v OHIM (CONTINENTAL)
   (Case T-383/10) (1)

   (Community trade mark - Application for Community word mark CONTINENTAL - Absolute ground for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009)
   2013/C 156/68
   Language of the case: German

      Parties

      Applicant: Continental Bulldog Club Deutschland eV (Berlin, Germany) (represented: initially by S. Vollmer, and subsequently by U. Rühl, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented: initially by S. Schäffner, and subsequently by D. Walicka, Agents)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 23 June 2010 (R 300/2010-1), concerning an application for registration of the word mark CONTINENTAL as a Community trade mark

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Continental Bulldog Club Deutschland eV to pay the costs.

      (1)  OJ C 301, 6.11.2010.


title: Case T-457/17: Action brought on 19 July 2017 — Medisana v EUIPO (happy life)

text:
               11.9.2017

               EN

               Official Journal of the European Union

               C 300/37

         Action brought on 19 July 2017 — Medisana v EUIPO (happy life)
   (Case T-457/17)
   (2017/C 300/46)
   Language of the case: German

      Parties

      Applicant: Medisana AG (Neuss, Germany) (represented by: J. Bühling and D. Graetsch, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘happy life’ — Application for registration No 15 164 023

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 3 May 2017 in Case R 1965/2016-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order EUIPO to pay the costs.

      Plea in law

               —

               Infringement of Article 7(1)(b) and 7(2) of Regulation No 207/2009.


title: Case C-148/05: Action brought on 1 April 2005 by Commission of the European Communities against Ireland

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/2

         Action brought on 1 April 2005 by Commission of the European Communities against Ireland
   (Case C-148/05)
   (2005/C 155/04)
   Language of the case: English
   An action against Ireland was brought before the Court of Justice of the European Communities on 1 April 2005 by the Commission of the European Communities, represented by Barry Doherty and Donatella Recchia, acting as Agents, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that Ireland, by failing

                           a)

                           in accordance with Article 4 of Council Directive 79/923/EEC (1), to designate all shellfish waters requiring designation,

                           b)

                           in accordance with Article 3 of the same directive, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4,

                           c)

                           in accordance with Article 5 of the same directive, to take all necessary measures to establish pollution reduction programmes for waters which should have been designated pursuant to Article 4 but were not designated,

                     has failed to comply with its obligations under those Articles of the said Directive;
               and

               2.

               order Ireland to pay the costs.

         Pleas in law and main arguments
   The Commission maintains that Ireland has breached Council Directive 79/923/EEC on the quality required of shellfish waters by failing:

               a)

               in accordance with Article 4 of the directive, to designate all shellfish waters requiring designation;

               b)

               in accordance with Article 3 of the directive, to set all the required values in respect of shellfish waters designated or requiring designation pursuant to Article 4; and

               c)

               in accordance with Article 5 of the directive, to take all necessary measures to establish pollution reduction programmes for waters requiring designation pursuant to Article 4.

      (1)  Council Directive 79/923/EEC of 30 October 1979 on the quality required of shellfish waters, OJ L 281, 10.11.1979, p. 47.


title: Case C-445/07 P: Appeal brought on 28 September 2007 by the Commission of the European Communities against the judgment delivered on 18 July 2007 in Case T-189/02 Ente per le Ville Vesuviane v Commission of the European Communities

text:
               8.12.2007

               EN

               Official Journal of the European Union

               C 297/25

         Appeal brought on 28 September 2007 by the Commission of the European Communities against the judgment delivered on 18 July 2007 in Case T-189/02 Ente per le Ville Vesuviane v Commission of the European Communities
   (Case C-445/07 P)
   (2007/C 297/40)
   Language of the case: Italian
   Parties

      Appellant: Commission of the European Communities (represented by: L. Flynn, Agent, assisted by A. Dal Ferro, avvocato)

      Other party to the proceedings: Ente per le Ville Vesuviane
   Form of order sought

               —

               set aside the judgment delivered on 18 July 2007 in Case T-189/02 in so far as it declares that the action for annulment brought by the Ente per le Ville Vesuviane is admissible;

               —

               declare that the action for annulment brought by the Ente per le Ville Vesuviane against Commission Decision D(2002) 810111 is inadmissible;

               —

               order the Ente per le Ville Vesuviane to pay the costs of the present proceedings and of the proceedings at first instance.

         Pleas in law and main arguments
   The Commission considers its own challenge against the judgment of the Court of First Instance admissible since, although it won the case at first instance as to the substance, it was unsuccessful regarding the plea of inadmissibility against the Ente per le Ville Vesuviane.
   According to the applicant, the judgment under appeal is defective because it infringes Community law, in so far as it declared the action brought by the Ente per le Ville Vesuviane admissible, taking the view that the latter was directly concerned as provided for in the fourth paragraph of Article 230 EC. The applicant argues that according to current Community law, where, as in the present case, there is an act addressed to a Member State which is given discretion as to whether the effects of the act will have repercussions on the applicant, the decision in question cannot be considered to be of direct concern to the latter, irrespective of whether or not the applicant was a ‘beneficiary’ of Community funds.


title: Case C-675/13 P: Appeal brought on 16 December 2013 by Zoo Sport Ltd against the judgment of the General Court (First Chamber) delivered on 16 October 2013 in Case T-455/12: Zoo Sport Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and intervener before the General Court K-2 Corp.

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/2

         Appeal brought on 16 December 2013 by Zoo Sport Ltd against the judgment of the General Court (First Chamber) delivered on 16 October 2013 in Case T-455/12: Zoo Sport Ltd v Office for Harmonisation in the Internal Market (Trade Marks and Designs) and intervener before the General Court K-2 Corp.
   (Case C-675/13 P)
   2014/C 303/02
   Language of the case: English

      Parties

      Appellant: Zoo Sport Ltd (represented by: I. Rungg, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs) and K-2 Corp.
   By order of 15 July 2014 the Court of Justice (Sixth Chamber) held that the appeal was inadmissible.


title: Case T-461/04: Action brought on 1 December 2004 by Imagination Technologies Ltd against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)

text:
               5.3.2005

               EN

               Official Journal of the European Union

               C 57/26

         Action brought on 1 December 2004 by Imagination Technologies Ltd against the Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case T-461/04)
   (2005/C 57/44)
   Language of the case: English
   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 1 December 2004 by Imagination Technologies Ltd, established in Hertfordshire (United Kingdom), represented by M. Edenborough, Barrister, and P. Brownlow and N. Jenkins, Solicitors.
   The applicant claims that the Court should:

               —

               annul the decision of the second Board of Appeal No 108/2004-2;

               —

               annul the decision of the Examination Division dated 12 September 2003;

               —

               remit the Community trade mark application No 2 396 075 to the Office, or alternatively to the Board of Appeal, for further examination;

               —

               order the Office to pay to the applicant the costs incurred by the applicant in connection with this appeal and the appeal before the Board of Appeal and the prosecution before the Examination Division.

         Pleas in law and main arguments

               Community trade mark concerned:

               The word mark ‘PURE DIGITAL’ for goods and services in classes 9 and 38 (Electric and electronic apparatus for use with multi-media entertaining systems, video apparatus, computer hardware, provision of telecommunications access to computer databases and the internet, …) — application No 2 396 075

               Decision of the examiner:

               Refusal of the application.

               Decision of the Board of Appeal:

               Dismissal of the appeal.

               Pleas in law:

               Violation of Articles 7(1)(b) and 7(1)(c) of Council Regulation No 40/94.


title: Case C-563/08: Order of the Court (Seventh Chamber) of 6 October 2010 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 2 de Granada-Spain) — Carlos Sáez Snchez, Patricia Rueda Vargas v Junta de Andalucía, Manual Jalón Morente and Others (First subparagraph of Article 104(3) of the Rules of Procedure — Article 49 TFEU — Freedom of establishment — Public health — Pharmacies — Proximity — Provision of medicinal products to the public — Operating licence — Territorial distribution of pharmacies — Establishment of limits based on population density — Minimum distance between pharmacies keywords)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/10

         Order of the Court (Seventh Chamber) of 6 October 2010 (reference for a preliminary ruling from the Juzgado de lo Contencioso-Administrativo No 2 de Granada-Spain) — Carlos Sáez Snchez, Patricia Rueda Vargas v Junta de Andalucía, Manual Jalón Morente and Others
   (Case C-563/08) (1)

   (First subparagraph of Article 104(3) of the Rules of Procedure - Article 49 TFEU - Freedom of establishment - Public health - Pharmacies - Proximity - Provision of medicinal products to the public - Operating licence - Territorial distribution of pharmacies - Establishment of limits based on population density - Minimum distance between pharmacies keywords)
   2011/C 30/16
   Language of the case: Spanish

      Referring court

   Juzgado de lo Contencioso-Administrativo No 2 de Granada-Spain

      Parties to the main proceedings

      Applicants: Carlos Sáez Sánchez, Patricia Rueda Vargas

      Defendants: Junta de Andalucía, Manual Jalón Morente and Others

      Re:

   Reference for a preliminary ruling — Juzgado de lo Contencioso-Administrativo No 2 de Granada — Interpretation of Article 43 EC — Legislation laying down the conditions for the opening of new pharmacies — Limits according to the number of inhabitants and the need to maintain a minimum distance between the pharmacies

      Operative part of the order

   Article 49 TFEU must be interpreted as not precluding, in principle, national legislation, such as that at issue in the cases before the referring court, which imposes restrictions on the issue of licences for the opening of new pharmacies, by providing that:

               —

               in each pharmaceutical area, a single pharmacy may be opened, as a general rule, per unit of 2800 inhabitants;

               —

               a supplementary pharmacy may not be opened until that threshold has been exceeded, that pharmacy being established for the fraction above 2000 inhabitants; and

               —

               each pharmacy must be a minimum distance away from existing pharmacies, that distance being, as a general rule, 250 metres.

         Nevertheless, Article 49 TFEU precludes such national legislation in so far as the basic ‘2800 inhabitants’ and ‘250 metres’ rules prevent, in any geographical area which has special demographic features, the establishment of a sufficient number of pharmacies to ensure adequate pharmaceutical services, that being a matter for the national court to ascertain.

      (1)  OJ C 69, 21.03.2009.


title: Case C-507/07: Judgment of the Court (Sixth Chamber) of 3 June 2008 — Commission of the European Communities v French Republic (Failure of a Member State to fulfil obligations — Regulation (EC) No 6/2002 — Industrial and commercial property — Community designs — Article 80(2) — Failure to communicate the list of courts)

text:
               19.7.2008

               EN

               Official Journal of the European Union

               C 183/6

         Judgment of the Court (Sixth Chamber) of 3 June 2008 — Commission of the European Communities v French Republic
   (Case C-507/07) (1)

   (Failure of a Member State to fulfil obligations - Regulation (EC) No 6/2002 - Industrial and commercial property - Community designs - Article 80(2) - Failure to communicate the list of courts)
   (2008/C 183/09)
   Language of the case: French
   Parties

      Applicant: Commission of the European Communities (represented by: H. Krämer, Agent)

      Defendant: French Republic (represented by: G. de Bergues and A. Hare, Agents)
   Re:
   Failure of a Member State to fulfil obligations — Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs (OJ 2002 L 3, p. 1) — Failure to communicate the list, provided for in Article 80(2) of the regulation referred to above, of Community design courts, indicating their names and their territorial jurisdiction.
   Operative part of the judgment

               1.

               By not communicating to the Commission of the European Communities the list of Community design courts, the French Republic has failed to fulfil its obligations under Article 80(2) of Council Regulation (EC) No 6/2002 of 12 December 2001 on Community designs;

               2.

               The French Republic is ordered to pay the costs.

      (1)  OJ C 8, 12.1.2008.


title: Case C-240/11 P: Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/18

         Appeal brought on 19 May 2011 by World Wide Tobacco España, S.A. against the judgment of the General Court (Fourth Chamber) delivered on 8 March 2011 in Case T-37/05 World Wide Tobacco España v Commission
   (Case C-240/11 P)
   2011/C 211/35
   Language of the case: Spanish

      Parties

      Appellant: World Wide Tobacco España, S.A. (represented by: M. Odriozola and A Vide, Abogados)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               set aside in part the judgment of the General Court in Case T-37/05;

               —

               reduce the fine imposed on the appellant;

               —

               order the Commission to pay the costs of the proceedings at first instance and on appeal.

      Pleas in law and main arguments

   First, the appellant submits that the Commission infringed the principle of equal treatment by applying a more stringent factor for deterrence on World Wide Tobacco España S.A. (WWTE) than on other undertakings engaged in processing tobacco. The Commission applied a factor for deterrence to WWTE on the ground that it belonged to a multi-national group having considerable economic and financial power. The fact that WWTE may have acted — which is not the case — under the decisive influence of its parent companies was considered solely as a supplementary factor.
   Second, in the alternative, the appellant submits that the Court of Justice must recalculate the multiplier in so far as it may find any of the parent companies not to be responsible for the conduct of WWTE. The General Court should not have rejected WWTE’s arguments on the ground that it had not included in its application the arguments of its parent companies, given that it is for the parent companies to refute the imputation of liability, not the subsidiary. In any event, the judgments delivered and to be delivered in the actions of the parent companies, including the judgment in Case T-24/05, have the effect of res judicata as between persons which are jointly and severally liable.
   Third, the General Court should not have declared inadmissible on grounds of lack of clarity the appellant’s argument that the Commission had imposed a fine which, as the parent companies were not liable, failed to observe the ceiling of 10 % of turnover. The reasons are the same as those referred to in the preceding paragraph: only the parent companies have the capacity to refute the imputation of liability and the judgment given has the effect of res judicata as between persons which are jointly and severally liable.
   Finally, the Commission infringed the Guidelines on the method of setting fines since it failed to take into account that, during 1996 and 1997, WWTE did not respect the agreements. Furthermore, the appellant submits that, in having failed to include an express reference to that attenuating circumstance in the contested decision, the Commission cannot maintain that it took it into account.


title: Case T-779/16: Action brought on 7 November 2016 — Rühland v EUIPO — 8 seasons design (Lamps)

text:
               16.1.2017

               EN

               Official Journal of the European Union

               C 14/46

         Action brought on 7 November 2016 — Rühland v EUIPO — 8 seasons design (Lamps)
   (Case T-779/16)
   (2017/C 014/56)
   Language in which the application was lodged: German

      Parties

      Applicant: Lothar Rühland (Wendeburg, Germany) (represented by: H.-P. Schrammek, C. Drzymalla, S. Risthaus and J. Engberding, lawyers)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: 8 seasons design GmbH (Eschweiler, Germany)

      Details of the proceedings before EUIPO

      Proprietor of the design at issue: Applicant

      Design at issue: Community design ‘Lamps’ No 1 402 341-0006

      Contested decision: Decision of the Third Board of Appeal of EUIPO of 8 July 2016 in Case R 878/2015-3

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               dismiss the action for annulment of Community design No 0010402341-0006;

               —

               order EUIPO to pay the costs, including those of the proceedings before the Board of Appeal.

      Plea in law

               —

               Infringement of Article 25(1)(b), in conjunction with Article 6, of Regulation No 6/2002.


title: Case C-351/12: Judgment of the Court (Fourth Chamber) of 27 February 2014 (request for a preliminary ruling from the Krajský soud v Plzni — Czech Republic) — Ochranný svaz autorský pro práva k dílům hudebním o.s. (OSA) v Léčebné lázně Mariánské Lázně a.s. (Directive 2001/29/EC — Copyright and related rights in the information society — Definition of ‘communication to the public’  — Transmission of works in a spa establishment — Direct effect of the provisions of the directive — Articles 56 TFEU and 102 TFEU — Directive 2006/123/EC — Freedom to provide services — Competition — Exclusive right of collective management of copyright)

text:
               14.4.2014

               EN

               Official Journal of the European Union

               C 112/5

         Judgment of the Court (Fourth Chamber) of 27 February 2014 (request for a preliminary ruling from the Krajský soud v Plzni — Czech Republic) — Ochranný svaz autorský pro práva k dílům hudebním o.s. (OSA) v Léčebné lázně Mariánské Lázně a.s.
   (Case C-351/12) (1)

   ((Directive 2001/29/EC - Copyright and related rights in the information society - Definition of ‘communication to the public’ - Transmission of works in a spa establishment - Direct effect of the provisions of the directive - Articles 56 TFEU and 102 TFEU - Directive 2006/123/EC - Freedom to provide services - Competition - Exclusive right of collective management of copyright))
   2014/C 112/06
   Language of the case: Czech

      Referring court

   Krajský soud v Plzni

      Parties to the main proceedings

      Applicant: Ochranný svaz autorský pro práva k dílům hudebním o.s. (OSA)

      Defendant: Léčebné lázně Mariánské Lázně a.s.

      Re:

   Request for a preliminary ruling — Krajský soud v Plzni — Interpretation of Articles 3 and 5 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), Articles 56, 101 and 102 TFEU, and Articles 14 and 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market (OJ 2006 L 376, p. 36) — Exceptions to and limitations of the rights of reproduction and communication — Works transmitted by means of television and radio equipment in rooms of patients of a spa establishment — Direct effect of the provisions of the directive — National legislation conferring on the applicant the exclusive right of collective management of copyright on national territory.

      Operative part of the judgment

               1.

               Article 3(1) of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as precluding national legislation which excludes the right of authors to authorise or prohibit the communication of their works, by a spa establishment which is a business, through the intentional distribution of a signal by means of television or radio sets in the bedrooms of the establishment’s patients. Article 5(2)(e), (3)(b) and (5) of that directive is not such as to affect that interpretation.

               2.

               Article 3(1) of Directive 2001/29 must be interpreted as meaning that it cannot be relied on by a copyright collecting society in a dispute between individuals for the purpose of setting aside national legislation contrary to that provision. However, the national court hearing such a case is required to interpret that legislation, so far as possible, in the light of the wording and purpose of the directive in order to achieve an outcome consistent with the objective pursued by the directive.

               3.

               Article 16 of Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, and Articles 56 TFEU and 102 TFEU must be interpreted as not precluding national legislation, such as that at issue in the main proceedings, which reserves the exercise of collective management of copyright in respect of certain protected works in the territory of the Member State concerned to a single copyright collecting society and thereby prevents users of such works, such as the spa establishment in the main proceedings, from benefiting from the services provided by another collecting society established in another Member State.

         However, Article 102 TFEU must be interpreted as meaning that the imposition by that copyright collecting society of fees for its services which are appreciably higher than those charged in other Member States (a comparison of the fee levels having been made on a consistent basis) or the imposition of a price which is excessive in relation to the economic value of the service provided are indicative of an abuse of a dominant position.

      (1)  OJ C 295, 29.9.2012


title: Case T-347/02: Action brought on 22 November 2002 by Aunacable, S.A.Unipersonal, Retecal Sociedad Operadora de Telecomunicaciones de Castilla y León, S.A., Euskaltel, S.A., Telecable de Avilés, S.A. Unipersonal, Telecable de Oviedo, S.A. Unipersonal, Telecable de Gĳón, S.A. Unipersonal, R Cable y Telecomunicaciones Galicia, S.A., and Tenaria S.A. against Commission of the European Communities

text:
C 19/40                EN                     Official Journal of the European Communities                                      25.1.2003
The applicant finally submits that the defendant committed               by Admira, by means of an exchange of shares. According to
serious procedural irregularities. More particularly, the defend-        the notification, following the successful completion of the
ant did not respect the principle of good administration, the            abovementioned operation, the resulting undertaking would
right of parties to be heard and the duty to state reasons for its       come under the joint control of Prisa and Groupe Canal+.
decisions.
                                                                         In support of its arguments, the applicants allege:
                                                                         —     lack of competence of the Commission, in that it is not
                                                                               empowered to refer a case to the authorities of a
                                                                               Member State when the markets concerned affect intra-
                                                                               Community trade and more than one Member State;
Action brought on 22 November 2002 by Cableuropa,
S.A., Región de Murcia de Cable, S.A., Valencia de Cable,
                                                                         —     infringement of Article 9 of the abovementioned regu-
S.A., Mediterránea Sur Sistemas de Cable, S.A., y Mediter-
                                                                               lation on concentrations in that the contested decision
ránea Norte Sistemas de Cable, S.A. against Commission
                                                                               makes a ‘blank’ reference to the national authorities;
                of the European Communities
                                                                         —     failure to observe the obligation to provide reasons,
                         (Case T-346/02)                                       specifically as regards the exceptional nature of the
                                                                               reference in cases in which the markets in question affect
                         (2003/C 19/75)                                        a substantial part of the common market.
                  (Language of the case: Spanish)                        (1 ) OJ 1989 L 395, p. 1.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the
European Communities on 22 November 2002 by Cableuropa,
S.A. (having its registered office in Aravaca, Madrid), Región
de Murcia de Cable, S.A. (having its registered office in Murcia,        Action brought on 22 November 2002 by Aunacable,
Spain), Valencia de Cable, S.A. (having its registered office in         S.A.Unipersonal, Retecal Sociedad Operadora de Teleco-
Madrid), Mediterránea sur Sistemas de Cable, S.A. (having its            municaciones de Castilla y León, S.A., Euskaltel, S.A.,
registered office in Alicante, Spain) y Mediterránea Norte               Telecable de Avilés, S.A. Unipersonal, Telecable de Ovie-
Sistemas de Cable, S.A. (having its registered office in Castellón,      do, S.A. Unipersonal, Telecable de Gijón, S.A. Uniper-
Spain), represented by Luis Felipe Castresana Sánchez and                sonal, R Cable y Telecomunicaciones Galicia, S.A., and
Gonzalo Samaniego Bordiu, lawyers.                                       Tenaria S.A. against Commission of the European Com-
                                                                                munities
The applicants claim that the Court should:
                                                                                (Case T-347/02)
—     annul the decision of the Commission of 14 August 2002
      referring Case COMP/M.2845 - Sogecable/Canalsatélite                                          (2003/C 19/76)
      Digital/Vía Digital to the competent authorities in the
      Kingdom of Spain pursuant to Article 9 of Council
      Regulation (EEC) No 4064/89;                                                         (Language of the case: Spanish)
—     order the parties to bear their own costs.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
Pleas in law and main arguments                                          European Communities on 22 November 2002 by Aunacable,
                                                                         S.A.Unipersonal (having its registered office in Madrid), Retecal
                                                                         Sociedad Operadora de Telecomunicaciones de Castilla y León,
The decision contested by the present application concerns the           S.A. (having its registered office in Boecilli, Valladolid, Spain),
notification, pursuant to Article 4 of Council Regulation (EEC)          Euskaltel, S.A.(having its registered office in Zamudio-Bizkaia),
No 4064/89 of 21 December 1989 on the control of                         Telecable de Avilés, S.A. Unipersonal (registered in Avilés),
concentrations between undertakings ( 1), of a planned concen-           Telecable de Oviedo, S.A. Unipersonal (having its registered
tration by which Sogecable SA, controlled by Promotora de                office in Oviedo), Telecable de Gijón, S.A. Unipersonal (having
Informaciones S.A (Prisa) and Groupe Canal +S.A., the latter             its registered office in Gijón), R Cable y Telecomunicaciones
belonging to the Vivendi Universal group, signs an agreement             Galicia, S.A.(having its registered office in A Coruña, Spain)
with the Admira Media S.A. group, belonging to the Telefónica            and Tenaria S.A.(having its registered office in Cordovilla,
S.A group, with the aim of merging Sogecable and DTS                     Navarra, Spain), represented by Antonio Creus Carreras,
Distribuidora de Televisión Digital S.A. (Vía Digital), controlled       Natalia Lacalle Mangas and José Mª Jiménez Laiglesia, lawyers.
 ---pagebreak--- 25.1.2003               EN                      Official Journal of the European Communities                                      C 19/41
The applicants claim that the Court should:                                Pleas in law and main arguments
—     annul the decision of the Commission of 14 August 2002
      referring Case COMP/M.2845 - Sogecable/Canalsatélite                 Applicant for the Com-        INTER SERVICE S.r.l.
      Digital/Vía Digital to the competent authorities in the              munity trade mark:
      Kingdom of Spain pursuant to Article 9 of Council
      Regulation (EEC) No 4064/89;                                         The Community trade           SEPHORA (registration appli-
                                                                           mark concerned:               cation No 593.806 for goods in
—     order the Commission to pay the costs.                                                             Classes 9, 18 and 25
                                                                           Proprietor of the right to    The applicant
                                                                           the trade mark or sign
Pleas in law and main arguments                                            asserted by way of oppo-
                                                                           sition in the opposition
                                                                           proceedings:
The pleas in law and main arguments are essentially those
previously put forward in Case T-346/02 CABLEUROPA and                     Trade mark or sign            French word mark SEPHORA for
Others v Commission.                                                       asserted by way of oppo-      goods in Classes 35 and 42
                                                                           sition in the opposition
                                                                           proceedings:
The applicants allege, in particular, breach of the principle of
good administration, inasmuch as the Commission not only
abandoned a practice and a consolidated policy in decisions to             Decision of the Oppo-         Opposition rejected
refer cases to the market affected by the operation in question,           sition Division:
it also failed to take into account a case which is closely linked
to the concentration operation and involving the same parties.             Decision of the Board of      Appeal rejected
In any event, the Commission is better placed than the national            Appeal:
authorities to analyse the abovementioned operation for,
among other reasons, the overriding questions of Community                 Grounds of claim:             Misapplication of Article 8(4) of
interest which the later raises.                                                                         Regulation No 40/94
Action brought on 22 November 2002 by the company
Sephora against Office for Harmonization in the Internal                   Action brought on 26 November 2002 by Ikegami Elec-
          Market (trade marks and designs) (OHIM)                          tronics (Europe) GmbH against the Council of the Euro-
                                                                                pean Union
                          (Case T-349/02)
                                                                                (Case T-350/02)
                          (2003/C 19/77)
                                                                                (2003/C 19/78)
                    (Language of the case: French)
                                                                                (Language of the case: English)
An action against Office for Harmonization in the Internal
Market (trade marks and designs) (OHIM) was brought before
the Court of First Instance of the European Communities on                 An action against the Council of the European Union was
22 November 2002 by Sephora, whose registered office is in                 brought before the Court of First Instance of the European
Levallois-Perret (France), represented by Michel-Paul Escande,             Communities on 26 November 2002 by Ikegami Electronics
lawyer.                                                                    (Europe) GmbH, Neuss, Germany, represented by Mr Laurent
                                                                           Ruessmann, lawyer with an address for service in Luxembourg.
The applicant claims that the Court should:
—     annul the decision of the Second Board of Appeal of the              The applicant claims that the Court should:
      Office for Harmonization in the Internal Market (trade
      marks and designs) of 9 September 2002 (Case R 425/                  —     annul Article 2 of Council Regulation (EC) No 1696/
      2000-2);                                                                   2002;
—     order the defendant to pay the costs.                                —     order the Council to pay the costs.


title: Case T-536/10: Action brought on 23 November 2010 — Kessel v OHIM — Janssen-Cilag (Premeno)

text:
               29.1.2011

               EN

               Official Journal of the European Union

               C 30/46

         Action brought on 23 November 2010 — Kessel v OHIM — Janssen-Cilag (Premeno)
   (Case T-536/10)
   ()
   2011/C 30/83
   Language in which the application was lodged: German

      Parties

      Applicant: Kessel Marketing & Vertriebs GmbH (Mörfelden-Walldorf, Germany) (represented by: S. Bund, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Janssen-Cilag GmbH (Neuss, Germany)

      Form of order sought

               —

               Annul the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 21 September 2010 in Case R 708/2010-4;

               —

               Order the defendant and the intervener, in accordance with Article 87(2) and (5) of the Rules of Procedure of the General Court, to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: the applicant

      Community trade mark concerned: the word mark ‘Premeno’ for goods in Class 5

      Proprietor of the mark or sign cited in the opposition proceedings: Janssen-Cilag GmbH

      Mark or sign cited in opposition: the German word mark ‘Pramino’ for goods in Class 5

      Decision of the Opposition Division: opposition upheld

      Decision of the Board of Appeal: appeal dismissed

      Pleas in law: Infringement of Article 42(2) and (3) of Regulation (EC) No 207/2009 (1), as there is insufficient proof of use of the opposing trade mark and infringement of Article 8(1)(b) of Regulation (EC) No 207/2009 as there is no likelihood of confusion of the marks at issue.
   The applicant also submits that the restriction of the list of goods and services is admissible.

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


title: Case T-58/01: Action brought on 12 March 2001 by Solvay SA against the Commission of the European Communities

text:
C 161/22               EN                    Official Journal of the European Communities                                      2.6.2001
On 13 December 2000, the Commission adopted a decision (4)              As to the substance, the applicant submits that the Commission
finding that the applicant had infringed Article 86 of the EEC          infringed Article 82 EC by the manner in which it defined the
Treaty by acting in a manner intended to exclude or to limit            geographical market without taking account of the real
competition very severely, by, inter alia, concluding agreements        conditions of competition and that the applicant did not hold
with customers requiring them to obtain supplies from the               a dominant position within the meaning of that article on the
applicant. In that decision, the Commission imposed on the              soda-ash market.
applicant a fine of EUR 20 million.
                                                                        As regards the Commission’s view that the applicant resorted
                                                                        to various practices all designed to bring about exclusion, the
                                                                        applicant contends that that view is not supported by the facts
The applicant seeks the annulment of that decision.                     and is wrong in law. Furthermore, the Commission did not
                                                                        give a proper statement of its reasons for its decision.
                                                                        In the alternative, the applicant seeks annulment of the
In support of its application, the applicant claims that the            fines imposed or reduction thereof. It contends that the
Commission did not take account of the passage of time.                 Commission’s power to impose fines on the applicant had
The five-year limitation period, which was suspended while              been extinguished by the time the contested decision was
proceedings for annulment were pending before the Court of              adopted, and therefore the Commission infringed Article 15
First Instance, ended in January 2000. Therefore, in the                of Regulation No 17. Moreover, it did not properly assess the
applicant’s view, the Commission adopted a decision at a time           gravity and duration of the infringement and failed to take
when its power to impose fines had been time-barred for many            account of extenuating circumstances. Finally, the amount of
months. The applicant also considers that the Commission                the fine is excessive and disproportionate and takes no account
infringed the applicant’s right to have a decision against it           of the passage of time.
taken within a reasonable period, in view of the fact that the
conduct imputed to the applicant occurred from 1983 to the
end of 1990.
                                                                        (1) Commission Decision 91/299/EEC of 19.12.1990 (IV/33.133-C:
                                                                            Soda-ash — Solvay), OJ 1991 L 152, p. 21.
                                                                        (2) Case T-32/91 Solvay v Commission [1995] ECR II-1825.
                                                                        (3) Judgment of 6.4.2000 in Joined Cases C-287/95 P and C-288/95
According to the applicant, a decision was adopted before a                 P Commission v Solvay [2000] ECR I-2391.
meeting of the members of the Commission. The applicant                 (4) Commission Decision of 13.12.2000 relating to a procedure
alleges infringement of the principle of collegiality and of the            under Article 82 EC (COMP/33.133-C: Soda-ash — Solvay.
principle of legal certainty.
Moreover, in its view, the contested decision infringed essential
procedural requirements which should have been fulfilled
before its adoption, the applicant’s rights of defence and its
right to be heard. The Commission cannot rely on the
administrative procedure which preceded the adoption of the
decision of December 1990, since that procedure was vitiated            Action brought on 12 March 2001 by Solvay SA against
in numerous ways and the applicant should have been granted                    the Commission of the European Communities
a hearing allowing it to submit its observations.
                                                                                (Case T-58/01)
                                                                                (2001/C 161/46)
According to the applicant, the Commission did not reopen
the administrative procedure which preceded adoption of
Decision 91/299 and did not receive a fresh statement of
objections and, therefore, was unable to respond to those                                  (Language of the case: French)
objections. By readopting, practically word for word, a decision
dating from 1990, disregarding, amongst things, the passage
of time, the contradictory positions taken by the Commission            An action against the Commission of the European Communi-
on matters essential to appraisal of the case and evidence in           ties was brought before the Court of First Instance on 12 March
defence put forward by the applicant in the intervening                 2001 by Solvay SA, established in Brussels, represented by
period, the Commission infringed the principles of sound                Lucien Simont, Paul Alain Foriers, Guy Block Frédéric Louis
administration, impartial examination and proportionality.              and Anne Vallery, Lawyers.
 ---pagebreak--- 2.6.2001              EN                     Official Journal of the European Communities                                      C 161/23
The applicant claims that the Court of First Instance should:           As regards the alleged infringement which, according to the
                                                                        Commission extended from 1987 to at least the end of 1990,
                                                                        the applicant contends that the Commission did not give
—    find that the action taken against it was time-barred;             reasons to show, and did not show, that the alleged agreement
                                                                        was capable of appreciably affecting trade between the Member
                                                                        States and that the infringement of Article 81 EC was not
—    in any event, annul the Commission Decision of                     established.
     13 December 2000 relating to a procedure under
     Article 81 of the Treaty (COMP/33.133-B: Soda-ash —
     Solvay, CFK);
                                                                        (1) Commission Decision 91/298/EEC of 19.12.1990 (IV/33.133-B:
                                                                            Soda-ash — Solvay, CFK), OJ L 152, 1991, p. 16.
                                                                        (2) Case T-31/91 Solvay v Commission [1995] II-1821.
—    find that the power to impose fines is time-barred;
                                                                        (3) Joined Cases C-287/95 P and C-288/95 P Commission v Solvay
                                                                            [2000] ECR I-2391.
                                                                        (4) Commission Decision of 13.12.2000 relating to a procedure
—    in any event, annul Article 2 of the contested decision, in            under Article 81 EC (COMP/33.133-B: Soda-ash — Solvay, CFK).
     so far as it imposes a fine of EUR 3 million on the
     applicant;
—    declare that no fine should be imposed on the applicant
     or, at the very least, that the fine should be substantially
     reduced;
—    order the Commission to pay the costs.
                                                                        Action brought on 22 March 2001 by Spyridon de
                                                                        Athanassios Pappas against the Committee of the Regions
                                                                                of the European Union
Contentions and principal arguments adduced in support
                                                                                (Case T-73/01)
The applicant is a company incorporated under Belgian law,                                       (2001/C 161/47)
which operates in the soda-ash sector through marketing
outlets in nine countries in Europe.
                                                                                (Language of the case: French)
On 19 December 1990, the Commission adopted Decision
91/298/EEC (1) finding that the applicant had participated in a         An action against the Committee of the Regions of the
market-sharing agreement under which it guaranteed CFK a                European Union was brought before the Court of First Instance
minimum annual tonnage of soda-ash sales in Germany and                 of the European Communities on 22 March 2001 by Spyridon
compensated CFK for any shortfall by purchasing from it the             de Athanassios Pappas, residing in Brussels, represented by
tonnages necessary to bring its sales up to the guaranteed              Marc-Albert Lucas, Lawyer.
minimum, and imposed on the applicant a fine of ECU 3 milli-
on. Proceedings for the annulment of that initial decision were
brought before the Court of First Instance. By judgment of
                                                                        The applicant claims that the Court of First Instance should:
29 June 1995, the Court of First Instance annulled the
decision (2). The Commission’s appeal against that judgment
was dismissed by the Court of Justice. (3)                              —     annul the decision of 13 June 2000 of the Bureau of the
                                                                              Committee of the Regions of the European Union to
                                                                              appoint a third party as Secretary-General of the Com-
                                                                              mittee of the Regions;
On the 13 December 2000, the Commission adopted a
decision (4), in which the infringements already referred to in
the initial decision were imputed to the applicant. In that             —     annul the relevant decision of 13 June 2000 of the Bureau
decision, the Commission imposed a fine on the applicant of                   of the Committee of the Regions of the European Union
EUR 3 million.                                                                to reject the applicant’s application for that post, which
                                                                              was notified to him by letter of 22 June 2000 from the
                                                                              President of the Bureau;
The applicant seeks annulment of that decision relying, for the
most part, on the arguments put forward in Case T-57/01.                —     order the Committee of the Regions to pay the costs.


title: Case C-242/08: Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften (Sixth VAT Directive — Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) — Insurance and reinsurance transactions — Concept — Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country — Determination of the place of that transfer — Exemptions)

text:
               5.12.2009

               EN

               Official Journal of the European Union

               C 297/10

         Judgment of the Court (Fourth Chamber) of 22 October 2009 (reference for a preliminary ruling from the Bundesfinanzhof (Germany)) — Swiss Re Germany Holding GmbH v Finanzamt München für Körperschaften
   (Case C-242/08) (1)

   (Sixth VAT Directive - Articles 9(2)(e), fifth indent, and 13B(a), (c) and (d)(2) and (3) - Insurance and reinsurance transactions - Concept - Transfer of a portfolio of life reinsurance contracts, for consideration, to a person established in a third country - Determination of the place of that transfer - Exemptions)
   2009/C 297/09
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Swiss Re Germany Holding GmbH

      Defendant: Finanzamt München für Körperschaften

      Re:

   Reference for a preliminary ruling — Bundesfinanzhof — Interpretation of the fifth indent of Article 9(2)(e) and Article 13B(a), (c) and (d)(2) and (3) of the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p.1) — Transfer, for remuneration payable by the purchaser established in a third country, of a portfolio of life insurance contracts authorised by the policyholders and involving the transfer of all the rights and obligations arising from the contracts transferred but not involving any transfer of other economic goods — Determination of the place of supply for tax purposes — Applicability to the abovementioned transaction of one of the exemptions contained in the abovementioned provisions of Article 13B of Directive 77/388/EEC

      Operative part of the judgment

               1.

               A transfer for consideration, by a company established in one Member State, to an insurance company established in a third State, of a portfolio of life reinsurance contracts, with the consequence that the transferee company assumes, with the consent of the insured persons, all the rights and obligations resulting from those contracts, does not constitute either a transaction falling under Article 9(2)(e), fifth indent, and Article 13B(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment, or a transaction falling under a combination of Article 13B(d)(2) and (3) thereof.

               2.

               In the context of a transfer for consideration of a portfolio of 195 life reinsurance contracts, the fact that it is not the transferee but the transferor who pays the consideration, in the present case the fixing of a negative value, for the acquisition of 18 of those contracts, does not affect the answer to the first question.

               3.

               Article 13B(c) of Sixth Directive 77/388/EC must be interpreted as meaning that it does not apply to a transfer for consideration of a portfolio of life reinsurance contracts such as that at issue in the main proceedings.

      (1)  OJ C 223, 30.8.2008.


title: Case T-522/10: Judgment of the General Court of 17 January 2012 — Hell Energy Magyarország v OHIM — Hansa Mineralbrunnen (HELL) (Community trade mark — Opposition proceedings — Application for the Community figurative mark HELL — Earlier Community word mark HELLA — Relative ground for refusal — Likelihood of confusion — Similarity of the goods and of the signs — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               25.2.2012

               EN

               Official Journal of the European Union

               C 58/9

         Judgment of the General Court of 17 January 2012 — Hell Energy Magyarország v OHIM — Hansa Mineralbrunnen (HELL)
   (Case T-522/10) (1)

   (Community trade mark - Opposition proceedings - Application for the Community figurative mark HELL - Earlier Community word mark HELLA - Relative ground for refusal - Likelihood of confusion - Similarity of the goods and of the signs - Article 8(1)(b) of Regulation (EC) No 207/2009)
   2012/C 58/15
   Language of the case: English

      Parties

      Applicant: Hell Energy Magyarország kft (Budapest, Hungary) (represented by: M. Treis, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: D. Botis, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Hansa Mineralbrunnen GmbH (Rellingen, Germany) (represented by: A. Renck, V. von Bomhard, E. Nicolás Gómez and T. Dolde, lawyers)

      Re:

   Action against the decision of the First Board of Appeal of OHIM of 5 August 2010 (Case R 1517/2009-1), relating to opposition proceedings between Hansa Mineralbrunnen GmbH and Hell Energy Magyarország.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Hell Energy Magyarország kft to pay the costs.

      (1)  OJ C 13, 15.1.2011.


title: Judgment of the Court of First Instance of 4 May 2005 in Case T-398/03, Jean-Pierre Castets v Commission of the European Communities (Officials — Article 78 of the Staff Regulations — Invalidity pension — Calculation of the amount of the pension — Reference salary)

text:
               9.7.2005

               EN

               Official Journal of the European Union

               C 171/18

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 4 May 2005
   in Case T-398/03, Jean-Pierre Castets v Commission of the European Communities (1)

   (Officials - Article 78 of the Staff Regulations - Invalidity pension - Calculation of the amount of the pension - Reference salary)
   (2005/C 171/32)
   Language of the case: French
   In Case T-398/03, Jean-Pierre Castets, a former official of the Commission of the European Communities, residing in Saint-Victor-des-Oules (France), represented by G. Crétin, lawyer, against Commission of the European Communities (Agent: J. Currall, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application for annulment of the Commission's decision specifying the applicant's rights to an invalidity pension — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, P. Mengozzi and I. Wiszniewska-Białecka, Judges; C. Kristensen, Administrator, for the Registrar, gave a judgment on 4 May 2005, in which it:

               1.

               Dismisses the application;

               2.

               Orders the applicant to bear his own costs and those incurred by the Commission in attending the hearing;

               3.

               Orders the Commission to bear its own costs save those which it incurred in attending the hearing.

      (1)  OJ C 35 of 7.2.2004.


title: Case T-139/14: Judgment of the General Court of 15 September 2016 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council (Dumping — Imports of biodiesel originating in Indonesia — Definitive anti-dumping duties — Article 2(3) and (5) of Regulation (EC) No 1225/2009 — Normal value — Production costs)

text:
               31.10.2016

               EN

               Official Journal of the European Union

               C 402/33

         Judgment of the General Court of 15 September 2016 — PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia v Council
   (Case T-139/14) (1)

   ((Dumping - Imports of biodiesel originating in Indonesia - Definitive anti-dumping duties - Article 2(3) and (5) of Regulation (EC) No 1225/2009 - Normal value - Production costs))
   (2016/C 402/36)
   Language of the case: English

      Parties

      Applicants: PT Wilmar Bioenergi Indonesia (Medan, Indonesia) and PT Wilmar Nabati Indonesia (Medan) (represented by: P. Vander Schueren, lawyer)

      Defendant: Council of the European Union (represented initially by S. Boelaert, and subsequently by H. Marcos Fraile, acting as Agents, and by R. Bierwagen and C. Hipp, lawyers)

      Interveners in support of the defendant: European Commission (represented by J.-F. Brakeland, M. França and A. Stobiecka-Kuik, acting as Agents) and European Biodiesel Board (EBB) (Brussels, Belgium) (represented by O. Prost and M.-S. Dibling, lawyers)

      Re:

   Action pursuant to Article 263 TFUE for annulment of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia (OJ 2013 L 315, p. 2) in so far as the applicants are concerned.

      Operative part of the judgment

   The Court:

               1.

               Annuls Articles 1 and 2 of Council Implementing Regulation (EU) No 1194/2013 of 19 November 2013 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of biodiesel originating in Argentina and Indonesia, in so far as they concern PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;

               2.

               Orders the Council of the European Union to bear its own costs and to pay the costs incurred by PT Wilmar Bioenergi Indonesia and PT Wilmar Nabati Indonesia;

               3.

               Orders the European Commission and the European Biodiesel Board (EBB) to bear their own costs.

      (1)  OJ C 151, 19.5.2014.


title: Case T-239/09 P: Order of the General Court of 4 April 2011 — Marcuccio v Commission (Appeal — Civil service — Officials — Refusal by an institution to open an inquiry — Pre-litigation procedure — Action for damages — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               21.5.2011

               EN

               Official Journal of the European Union

               C 152/19

         Order of the General Court of 4 April 2011 — Marcuccio v Commission
   (Case T-239/09 P) (1)

   (Appeal - Civil service - Officials - Refusal by an institution to open an inquiry - Pre-litigation procedure - Action for damages - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2011/C 152/35
   Language of the case: Italian

      Parties

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

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

      Re:

   Appeal against the order of the Civil Service Tribunal of the European Union (First Chamber) of 31 March 2009 in Case F-146/07 Marcuccio v Commission, not yet published in the ECR, seeking annulment of that order.

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Mr Luigi Marcuccio shall bear his own costs and pay those incurred by the European Commission in the present proceedings.

      (1)  OJ C 193, 15.8.2009.


title: Case C-306/10: Order of the President of the Fifth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia

text:
               16.7.2011

               EN

               Official Journal of the European Union

               C 211/21

         Order of the President of the Fifth Chamber of the Court of 10 March 2011 — European Commission v Republic of Estonia
   (Case C-306/10) (1)

   2011/C 211/42
   Language of the case: Estonian
   The President of the Fifth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 221, 14.8.2010.


title: Case T-257/04: Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities

text:
               9.10.2004

               EN

               Official Journal of the European Union

               C 251/20

         Action brought on 28 June 2004 by the Republic of Poland against the Commission of the European Communities
   (Case T-257/04)
   (2004/C 251/38)
   Language of the case: Polish
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 28 June 2004 by the Republic of Poland, represented by Jarosław Pietras, acting as Agent.
   The applicant claims that the Court should:

               —

               declare invalid Articles 3 and 4(3) and (5), eighth indent, of Commission Regulation (EC) No 1972/2003 of 10 November 2003 on transitional measures to be adopted in respect of trade in agricultural products on account of the accession of the Czech Republic, Estonia, Cyprus, Latvia, Lithuania, Hungary, Malta, Poland, Slovenia and Slovakia (OJ 2003 L 293, p. 3), as amended by Commission Regulation (EC) No 230/2004 of 10 February 2004 (OJ 2004 L 39, p. 13) and Commission Regulation (EC) No 735/2004 of 20 April 2004 (OJ 2004 L 114, p. 13);

               —

               order the Commission of the European Communities to pay the costs of the proceedings.

         Pleas in law and main arguments
   With regard to Article 3 of Regulation No 1972/2003 the applicant raises the following heads of complaint:

               —

               infringement of the principle of the free movement of goods through the introduction of customs duties in the amount of a customs rate applicable erga omnes and exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union;

               —

               lack of competence on the Commission's part and breach of Articles 22 and 41, first paragraph, and Part 5 of Annex IV to the Act concerning the conditions of accession of the Czech Republic, the Republic of Estonia, the Republic of Cyprus, the Republic of Latvia, the Republic of Lithuania, the Republic of Hungary, the Republic of Malta, the Republic of Poland, the Republic of Slovenia and the Slovak Republic and the adjustments to the Treaties on which the European Union is founded (1) through the adoption of measures altering the conditions defined in that Act for the adoption by the Republic of Poland of the rules governing the customs union;

               —

               infringement of the principle of non-discrimination on grounds of nationality by reason of the adoption of measures providing for treatment of persons from Poland that differs from that of persons from the Community of 15 States who are in a comparable position;

               —

               breach of a fundamental procedural requirement by virtue of the inadequate reasoning of the measures adopted;

               —

               infringement of the principle of the protection of legitimate expectations by reason of the introduction of a method, at variance with the conditions laid down in the abovementioned Act of Accession, for dealing with products which were in temporary storage on 1 May 2004, were covered by customs procedures or were in transit within the enlarged Community, and in particular by reason of the introduction of customs duties exceeding the level of customs rates in force during the period prior to Poland's accession to the European Union.

         With regard to Article 4(3) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principles of proportionality and non-discrimination on grounds of nationality, in so far as the level of duty laid down in the contested provision exceeds the differential between the Community customs rate and the Polish rate as on 30 April 2004.
   With regard to the eighth indent of Article 4(5) of Regulation No 1972/2003 the applicant argues that the Commission lacked competence and that there has been a breach of the first paragraph of Article 41 of the abovementioned Act of Accession and infringement of the principle of proportionality in so far as the contested provision covers products for which the Polish customs rate for imports on 30 April 2004 was greater than or equal to the Community rate and also products in respect of which there was, on 1 May 2004, no evidence of surplus stocks at national level.
   With regard to all of the contested provisions of Regulation No 1972/2003, the applicant argues that the Commission abused its powers by adopting measures the real objective of which was not to facilitate Poland in adopting the rules of the Common Agricultural Policy but rather to protect the market of the Community of 15 States against competition from Polish agricultural producers.

      (1)  OJ 2003 L 236, p. 33.


title: Case C-440/08: Judgment of the Court (First Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — F. Gielen v Staatssecretaris van Financiën (Direct taxation — Article 43 EC — Non-resident taxable person — Business operator — Right to a self-employed person’s deduction — Hours test — Discrimination between resident and non-resident taxable persons — Option to be treated as a resident taxable person)

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/6

         Judgment of the Court (First Chamber) of 18 March 2010 (reference for a preliminary ruling from the Hoge Raad der Nederlanden — Netherlands) — F. Gielen v Staatssecretaris van Financiën
   (Case C-440/08) (1)

   (Direct taxation - Article 43 EC - Non-resident taxable person - Business operator - Right to a self-employed person’s deduction - Hours test - Discrimination between resident and non-resident taxable persons - Option to be treated as a resident taxable person)
   2010/C 134/09
   Language of the case: Dutch

      Referring court

   Hoge Raad der Nederlanden

      Parties to the main proceedings

      Applicant: F. Gielen

      Defendant: Staatssecretaris van Financiën

      Re:

   Reference for a preliminary ruling — Hoge Raad der Nederlanden Den Haag — Interpretation of Article 43 EC — National legislation granting self-employed business operators the right to deduct a flat-rate amount from their profits provided that they have devoted at least 1 225 hours per calendar year to the activities of the business — No account taken, solely in the case of a non-resident taxpayer, of hours devoted to an undertaking established in another Member State

      Operative part of the judgment

   Article 49 TFEU precludes national legislation which, in relation to the granting of a tax advantage, such as the self-employed person’s deduction at issue in the main proceedings, is discriminatory towards non-resident taxable persons, even though those taxable persons may opt for the regime applicable to resident taxable persons in order to benefit from that tax advantage.

      (1)  OJ C 327, 20.12.2008.


title: Case C-266/07: Action brought on 5 June 2007 — Commission of the European Communities v Portuguese Republic

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/24

         Action brought on 5 June 2007 — Commission of the European Communities v Portuguese Republic
   (Case C-266/07)
   (2007/C 183/41)
   Language of the case: Portuguese
   Parties

      Applicant: Commission of the European Communities (represented by: A. Caeiros and J.-B. Laignelot, acting as Agents)

      Defendant: Portuguese Republic
   Form of order sought

               —

               declare that, by permitting the incineration of hospital waste in incineration plants which do not have a valid permit, the Portuguese Republic has failed to fulfil its obligations under Article 4 of Directive 2000/76/EC (1) of 4 December 2000 on the incineration of waste or, in the alternative, Article 9 of Directive 2006/12/EC (2) of 5 April 2006 on waste;

               —

               order the Portuguese Republic to pay the costs.

         Pleas in law and main arguments
   According to the interpretation of Article 3 of Directive 2000/76/EC read in conjunction with Article 20(2) of that directive, the incinerator in question is a new incinerator for the purposes of the application of Directive 2000/76/EC, with the result that the directive is applicable to the incinerator in the Parque da Saúde in Lisbon. The incinerator could start to function only after a permit was obtained by meeting the conditions laid down in Article 4 of that directive. The Portuguese authorities have not respected that requirement.
   In any case, even if it is to be considered, quod non, that the incinerator in question should be classed as an ‘existing incinerator’ for the purposes of Directive 2000/76/EC and that, consequently, that directive was not applicable to it, its functioning was subject to obtaining a permit in advance in accordance with Article 9(1) of Directive 2006/12/EC.

      (1)  OJ 2000 L 332, p. 91.

      (2)  OJ 2006 L 114, p. 9.


title: Case C-690/13: Judgment of the Court (Ninth Chamber) of 16 April 2015 (request for a preliminary ruling from the Efeteio Thrakis (Greece) — Trapeza Eurobank Ergasias AE v Agrotiki Trapeza tis Ellados AE (ATE), Pavlos Sidiropoulos (Reference for a preliminary ruling — State aid — Meaning — Article 87(1) EC — Privileges granted to a bank — Company exercising public service obligations — Existing aid and new aid — Article 88(3) EC — Powers of the national court)

text:
               15.6.2015

               EN

               Official Journal of the European Union

               C 198/9

         Judgment of the Court (Ninth Chamber) of 16 April 2015 (request for a preliminary ruling from the Efeteio Thrakis (Greece) — Trapeza Eurobank Ergasias AE v Agrotiki Trapeza tis Ellados AE (ATE), Pavlos Sidiropoulos
   (Case C-690/13) (1)

   ((Reference for a preliminary ruling - State aid - Meaning - Article 87(1) EC - Privileges granted to a bank - Company exercising public service obligations - Existing aid and new aid - Article 88(3) EC - Powers of the national court))
   (2015/C 198/12)
   Language of the case: Greek

      Referring court

   Efeteio Thrakis

      Parties to the main proceedings

      Applicant: Trapeza Eurobank Ergasias AE

      Defendants: Agrotiki Trapeza tis Ellados AE (ATE), Pavlos Sidiropoulos

      Operative part of the judgment

               1.

               Article 87(1) EC must be interpreted as meaning that its scope of application may cover privileges, such as those at issue in the main proceedings, in accordance with which a bank has the right unilaterally to register a mortgage over immovable property belonging to farmers or other persons engaged in similar agricultural activities, the right to seek enforcement with an ordinary private document and the right to be exempted from the payment of fees and duties connected with that registration. It is, however, for the referring court to determine whether that is the case in the main proceedings.

               2.

               The answer to question 1(a) is capable of being affected by the fact that privileges, such as those at issue in the main proceedings, conferred by national legislation upon an independent bank acting for the public benefit, at the time of its establishment, in consideration for entering into agricultural credit operations and specific tasks entrusted to that bank, are still in force, and that even after the functions of that bank were extended to cover all banking activities and that bank has become a public limited company. It is for the referring court to determine whether, in the light of all the relevant legal and factual circumstances, the four cumulative conditions justifying, in accordance with the Court’s case-law, the finding that those privileges constitute compensation for services provided by that bank in order to discharge public service obligations, and that they thus escape being classified as State aid, are satisfied.

               3.

               Article 87(1) EC must be interpreted as meaning that where privileges, such as those at issue in the main proceedings, fall within the scope of application of that provision, the Member State which established them is required to follow the preliminary examination procedure provided for in Article 88(3) EC provided that those privileges became new aid after the entry into force of the Treaty in the Member State concerned and that the limitation period laid down by Article 15(3) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] has not expired, which is a matter for the referring court to verify.

               4.

               Articles 87(1) EC and 88(3) EC must be interpreted as meaning that where the referring court considers that the privileges at issue constitute, in view of the answer to question 2, new State aid, it is required to exclude the application of national provisions establishing such privileges on account of their incompatibility with those provisions of the Treaty.

      (1)  OJ C 78, 15.3.2014.


title: Case T-613/14: Action brought on 14 August 2014  — Industrias Tomás Morcillo v OHIM — Aucar Trailer (Polycart A Whole Cart Full of Benefits)

text:
               29.9.2014

               EN

               Official Journal of the European Union

               C 339/27

         Action brought on 14 August 2014 — Industrias Tomás Morcillo v OHIM — Aucar Trailer (Polycart A Whole Cart Full of Benefits)
   (Case T-613/14)
   2014/C 339/33
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Industrias Tomás Morcillo, SL (Albuixech, Spain) (represented by: A. Sanz-Bermell y Martínez, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Aucar Trailer, SL (Premia de Mar, Spain)

      Form of order sought

   The applicant claims that the General Court should:

               —

               annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 7 May 2014 in Case R 1735/2012-1 and, accordingly, dismiss the opposition brought by Aucar Trailer S.L., allowing the grant of Community trade mark No 9 6 90  314‘Polycart A Whole Cart Full of Benefits’ in respect of the goods applied for pursuant to the limitation of 16 November 2012, and dismissing the opposition brought against the same;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: Figurative mark with word elements ‘Polycart A Whole Cart Full of Benefits’ for goods in Classes 12, 17 and 20 — Community trade mark application No 9 6 90  314

      Proprietor of the mark or sign cited in the opposition proceedings: The other party to the proceedings before the Board of Appeal

      Mark or sign cited in opposition: Figurative mark with word element ‘POLICAR’ for goods and services in Classes 12, 35 and 37

      Decision of the Opposition Division: Opposition upheld

      Decision of the Board of Appeal: Appeal dismissed

      Pleas in law: Infringement of Article 8 of Regulation No 207/2009


title: Case C-607/11: Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 November 2011 — ITV Broadcasting Limited e.a. v TV Catch Up Limited

text:
               3.3.2012

               EN

               Official Journal of the European Union

               C 65/3

         Reference for a preliminary ruling from High Court of Justice (Chancery Division) (United Kingdom) made on 28 November 2011 — ITV Broadcasting Limited e.a. v TV Catch Up Limited
   (Case C-607/11)
   2012/C 65/06
   Language of the case: English

      Referring court

   High Court of Justice (Chancery Division)

      Parties to the main proceedings

      Applicants: ITV Broadcasting Limited e.a.

      Defendant: TV Catch Up Limited

      Question referred

   On the interpretation of Directive 2001/29/EC (1) of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (‘the InfoSoc Directivew’):

               1.

               Does the right to authorise or prohibit a ‘communication to the public of their works by wire or wireless means’ in Article 3.1 of the Directive extend to a case where:

                           (i)

                           Authors authorise the inclusion of their works in a terrestrial free-to-air television broadcast which is intended for reception either throughout the territory of a Member State or within a geographical area within a Member State;

                           (ii)

                           A third party (i.e. an organisation other than the original broadcaster), provides a service whereby individual subscribers within the intended area of reception of the broadcast who could lawfully receive the broadcast on a television receiver in their own homes may log on to the third party's server and receive the content of the broadcast by means of an internet stream?

         Does it make any difference to the answer to the above question if:

               (a)

               The third party's sewer allows only a “one-to-one” connection for each subscriber whereby each individual subscriber establishes his or her own internet connection to the server and every data packet sent by the server onto the internet is addressed to only one individual subscriber?

               (b)

               The third party's service is funded by advertising which is presented ‘pre-roll’ (i.e. during the period of time after a subscriber logs on but before he or she begins to receive the broadcast content) ‘orin-skin’ (i.e. within the frame of the viewing software which displays the received programme on the subscriber's viewing device but outside the programme picture) but the original advertisements contained within the broadcast are presented to the subscriber at the point where they are inserted in the programme by the broadcaster?

               (c)

               the intervening organisation is:

                           (i)

                           providing an alternative service to that of the original broadcaster, thereby acting in direct competition with the original broadcaster for viewers; or

                           (ii)

                           acting in direct competition with the original broadcaster for advertising revenues?

      (1)  OJ L 167, p. 10


title: Case C-353/03: Reference for a preliminary ruling by the Court of Appeal (England & Wales) (Civil Division) by order of that court dated 25 July 2003, in the case of Société de produits Nestlé SA against Mars UK Ltd

text:
C 251/6                EN                     Official Journal of the European Union                                           18.10.2003
deprived of the benefit of the inter-service meeting provided          2003, for a preliminary ruling in the case of Optigen Ltd
for in the regulations had not adversely affected him. In the          against Commissioners of Customs and Excise on the
absence of that meeting, the applicant was unable either to            following questions:
present his case in an appropriate manner before a group of
representatives of the Commission or to know what probative
documents the Commission considered to be lacking.
                                                                       A.     Under the common system of VAT, and in the light of
                                                                              Council Directives 67/227/EEC (1) and 77/388/EEC (2), is
                                                                              the entitlement of a trader to credit for a payment in
                                                                              respect of VAT under a transaction to be judged by
                                                                              reference to:
Reference for a preliminary ruling by the Court of Appeal
(England & Wales) (Civil Division) by order of that court
dated 25 July 2003, in the case of Société de produits                       (1)    only the particular transaction to which the trader
                Nestlé SA against Mars UK Ltd                                       was a party including the trader's purposes in enter-
                                                                                ing into it, or
                          (Case C-353/03)
                          (2003/C 251/11)
                                                                             (2)    the totality of transactions, including subsequent
Reference has been made to the Court of Justice of the                              transactions, making up a circular chain of supply
European Communities by an order of the Court of Appeal                             of which the particular transaction forms part
(England & Wales) (Civil Division) dated 25 July 2003, which                        including the purposes of other participants in the
was received at the Court Registry on 18 August 2003, for a                         chain of which the trader has no knowledge and/or
preliminary ruling in the case of Société de produits Nestlé SA                     means of knowledge, and/or
against Mars UK Ltd on the following question:
Whether the distinctive character of a mark referred to
in Article 3(3) of Council Directive 89/104/EEC (1) and                      (3)    the fraudulent acts and intention, whether arising
Article 7(3) of Council Regulation 40/94 (2) may be acquired                        prior or subsequent to the particular transaction, of
following or in consequence of the use of that mark as part of                      other participants in the circular chain of whose
or in conjunction with another mark?                                                involvement the trader is unaware and of whose
                                                                                acts and intentions the trader has no knowledge
                                                                                and/or means of knowledge, or
(1) First Council Directive 89/104/EEC of 21 December 1988 to
    approximate the laws of the Member States relating to trade
    marks OJ L 040, 11.02.1989, p. 1-7.
(2) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                             (4)    some other, and if so what, criteria?
    Community trade mark OJ L 011, 14.01.1994, p. 1-36.
                                                                       B.    Does the exclusion from the VAT regime of transactions
                                                                             entered into by an innocent party, but which form links in
                                                                             a carousel fraud by others, infringe the general principles
Reference for a preliminary ruling by the High Court of
                                                                             of proportionality, equal treatment or legal certainty?
Justice (England & Wales), Chancery Division, by order of
that court dated 28 July 2003, in the case of Optigen Ltd
        against Commissioners of Customs and Excise
                                                                       (1) First Council Directive 67/227/EEC of 11 April 1967 on the
                          (Case C-354/03)                                  harmonisation of legislation of Member States concerning turnover
                                                                           taxes OJ P 071, 14.04.1967, p. 1301-1303.
                          (2003/C 251/12)                              (2) Sixth Council Directive 77/388/EEC of 17 May 1977 on the
                                                                           harmonization of laws of the Member States relating to turnover
Reference has been made to the Court of Justice of the                     taxes — Common system of value added tax: uniform bassis of
European Communities by an order of the High Court of                      assessment OJ L 145, 13.06.1977, p. 1-40.
Justice (England & Wales), Chancery Division, dated 28 July
2003, which was received at the Court Registry on 18 August


title: Case T-33/13: Judgment of the General Court of 5 February 2015  — Türkiye Garanti Bankasi AS v OHIM — Card & Finance Consulting (bonus & more) (Community trade mark — Opposition proceedings — Application for Community figurative mark bonus & more — Earlier international figurative mark bonus net — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               23.3.2015

               EN

               Official Journal of the European Union

               C 96/14

         Judgment of the General Court of 5 February 2015 — Türkiye Garanti Bankasi AS v OHIM — Card & Finance Consulting (bonus & more)
   (Case T-33/13) (1)

   ((Community trade mark - Opposition proceedings - Application for Community figurative mark bonus & more - Earlier international figurative mark bonus net - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 096/17)
   Language of the case: English

      Parties

      Applicant: Türkiye Garanti Bankasi AS (Istanbul, Turkey) (represented by: J. Güell Serra, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: initially by A. Pohlmann, then by A. Schifko, acting as Agents)

      Other party to the proceedings before the Board of Appeal of OHIM: Card & Finance Consulting GmbH (Nuremberg, Germany)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 12 November 2012 (Case R-1890/2011-4), relating to opposition proceedings between Türkiye Garanti Bankasi AS and Card & Finance Consulting GmbH.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 12 November 2012 (Case R 1890/2011-4).

               2.

               Orders OHIM to bear its own costs and to pay those incurred by Türkiye Garanti Bankasi AS.

      (1)  OJ C 86, 23.3.2013.


title: Case C-243/09: Reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 3 July 2009 — Günter Fuβ v Stadt Halle (Saale)

text:
               26.9.2009

               EN

               Official Journal of the European Union

               C 233/4

         Reference for a preliminary ruling from the Verwaltungsgericht Halle (Germany) lodged on 3 July 2009 — Günter Fuβ v Stadt Halle (Saale)
   (Case C-243/09)
   2009/C 233/06
   Language of the case: German

      Referring court

   Verwaltungsgericht Halle

      Parties to the main proceedings

      Applicant: Günter Fuβ

      Defendant: Stadt Halle (Saale)

      Questions referred

               1.

               Is the concept of detriment in Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 (1) concerning certain aspects of the organisation of working time to be construed objectively or subjectively?

               2.

               Is there detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of having requested that the maximum working time in future be complied with, an employee in the on-call service is transferred, against his will, to a different post that largely involves office duties?

               3.

               Is a fall in remuneration to be construed as detriment within the meaning of Article 22(1)(b) of Directive 2003/88/EC of the European Parliament and of the Council of 4 November 2003 concerning certain aspects of the organisation of working time if, as a result of the transfer, fewer unsocial hours (nights, Sundays and public holidays) are worked and the amount of the hardship allowance paid in respect of such hours is therefore also reduced?

               4.

               In the event that the second or third questions are answered in the affirmative: can detriment resulting from a transfer be offset by other advantages inherent in the new post, such as shorter working hours or further training?

      (1)  OJ 2003 L 299, p. 9.