title: Case T-13/16: Action brought on 15 January 2016 — Gauff v OHIM — H.P. Gauff Ingenieure (GAUFF)

text:
               7.3.2016

               EN

               Official Journal of the European Union

               C 90/23

         Action brought on 15 January 2016 — Gauff v OHIM — H.P. Gauff Ingenieure (GAUFF)
   (Case T-13/16)
   (2016/C 090/31)
   Language in which the application was lodged: German

      Parties

      Applicant: Gauff GmbH & Co. Engineering KG (Nuremberg, Germany) (represented by: A. Molnar)

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

      Other party to the proceedings before the Board of Appeal: H.P. Gauff Ingenieure GmbH & Co. KG — JBG (Frankfurt am Main, Germany)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: Community figurative mark containing the word element ‘Gauff’ — Community mark No 6 327 977

      Procedure before OHIM: Invalidity proceedings

      Contested decision: Decision of the First Board of Appeal of OHIM of 12 November 2015 in Case R 549/2015-1

      Form of order

   The applicant claims that the Court should:

               —

               annul the contested decision; or
               in the alternative, send the case back to OHIM for further examination of the disputed matters that were, in error, not examined;

               —

               order OHIM to pay the costs of the proceedings including those incurred in the proceedings before the Board of Appeal.

      Plea in law

               —

               Infringement of Articles 53, 56, 57, 76 of Regulation No 207/2009 and infringement of Regulation No 2868/95 as well as infringement of the right to be heard and failure to state reasons.


title: Case C-12/03 P: Appeal brought on 13 January 2003 by the Commission of the European Communities against the judgment delivered on 25 October 2002 by the First Chamber of the Court of First Instance of the European Communities in case T-5/02 between Tetra Laval BV and the Commission of the European Communities

text:
22.3.2003             EN                        Official Journal of the European Union                                              C 70/3
5.   Does this apply also where it may be assumed that the              Pleas in law and main arguments
     person will be released after an insignificant, reasonable
     time, but must then submit to treatment for drug abuse             —     Infringement of Article 8(1)(b) of Regulation No 40/
     and will not be able to take up employment until he has                  94; the trade mark applied for, ‘MATRATZEN markt
     completed additional school education?                                   CONCORD’, which consists of three words and a figurat-
                                                                              ive element, and the opposing earlier trade mark, ‘Matrat-
6.   Is Article 14(1) of Decision No 1/80 to be interpreted as                zen’, are not similar, but completely different. The Court
     meaning that the court requires to take into account a                   of First Instance did not base its assessment on the overall
     change in circumstances which occurs after the most                      impression created by the marks and thus failed to have
     recent administrative decision and which is favourable to                regard to the principles established in the judgment of
     the person concerned such that it would preclude the                     the Court of Justice in Case C-251/95 (SABEL). The
     application of any of the limitations in Article 14 of                   finding that the word ‘MATRATZEN’ alone is the domi-
     Decision No 1/80?                                                        nant feature of the trade mark applied for is contrary to
                                                                              the rules of logic and to experience.
                                                                        —     Breach of the principle of the free movement of goods
                                                                              (Articles 28 and 30 EC); the opposition based on the
                                                                              earlier mark is an abuse of a formal legal position. This
                                                                              was not sufficiently assessed by the Court of First Instance.
Appeal brought on 7 January 2003 by Matratzen Concord
GmbH, formerly Matratzen Concord AG, against the
judgment delivered on 23 October 2002 by the Fourth                     (1 ) OJ 2003 C 19.
Chamber of the Court of First Instance of the European
Communities in Case T-6/01 between Matratzen Concord
GmbH, formerly Matratzen Concord AG, and the Office
for Harmonisation in the Internal Market (Trade Marks
                         and Designs)
                        (Case C-3/03 P)
                                                                        Appeal brought on 13 January 2003 by the Commission
                        (2003/C 70/06)                                  of the European Communities against the judgment deliv-
                                                                        ered on 25 October 2002 by the First Chamber of the
                                                                        Court of First Instance of the European Communities in
                                                                        case T-5/02 between Tetra Laval BV and the Commission
An appeal against the judgment delivered on 23 October 2002                              of the European Communities
by the Fourth Chamber of the Court of First Instance of the
European Communities in Case T-6/01 between Matratzen
Concord GmbH, formerly Matratzen Concord AG, and the                                             (Case C-12/03 P)
Office for Harmonisation in the Internal Market (Trade Marks
and Designs) was brought before the Court of Justice of the
European Communities on 7 January 2003 by Matratzen                                               (2003/C 70/07)
Concord GmbH, represented by Dr Wolf-W. Wodrich,
Rechtsanwalt, Huyssenallee 58-64, D-45128 Essen, with an
address for service in Luxembourg, assisted by Patentanwälte
Zenz, Helber, Hosbach & Partner, Huyssenallee 58-64, D-                 An appeal against the judgment delivered on 25 October 2002
45128 Essen.                                                            by the First Chamber of the Court of First Instance of the
                                                                        European Communities in case T-5/02 (1) between Tetra Laval
                                                                        BV and the Commission of the European Communities,
The appellant claims that the Court should:                             was brought before the Court of Justice of the European
                                                                        Communities on 13 January 2003 by the Commission of the
—    set aside the judgment of the Court of First Instance of           European Communities, represented by Michel Petite, Anthony
     the European Communities of 23 October 2002 in Case                Whelan and Per Hellström, acting as agents, with an address
     T-6/01 ( 1),                                                       for service in Luxembourg.
—    reject the opposition of the other party to the proceedings
     before the Board of Appeal of 21 April 1998 (OHIM ref.:
                                                                        The Appellant claims that the Court should:
     B 32 500),
—    order OHIM and the other party to the proceedings                  —     annul the judgment of the Court of First Instance of
     before the Board of Appeal to pay the costs of the                       25 October 2002 in case T-5/02, Tetra Laval BV v
     proceedings before the Opposition Division and before                    Commission;
     the Board of Appeal of OHIM, as well as the costs of the
     proceedings on the action and on this appeal.                      —     order Tetra Laval BV to pay the Commission’s costs.
 ---pagebreak--- C 70/4                EN                        Official Journal of the European Union                                         22.3.2003
Pleas in law and main arguments                                         and 8 of the Regulation by requesting the Commission to take
                                                                        into account the impact of the illegality of certain conduct and
                                                                        to assess as potential remedies promises not to engage in
                                                                        abusive behaviour.
1.   Error of law regarding the standards of proof and of
     judicial review
                                                                        The Court of First Instance’s interpretation is also inconsistent,
                                                                        in part, with general principles of Community law (the
                                                                        principle of equality and the presumption of innocence). In
The Commission submits that the Court of First Instance erred           reaching its findings, the Court of First Instance also distorted
in law on two related grounds:                                          the content of the Decision (3). The results of these errors of
                                                                        law permeate the whole of the Court of First Instance’s
1)    that the standard of judicial review invoked by the Court         assessment of the Decision and affect the outcome of the
      of First Instance in the contested judgment is self-              present case. As a result, the judgment should be set aside.
      contradictory and inconsistent with both Article 230 EC
      and Article 2 of the Merger Regulation ( 2);
2)    that in the application of this standard of judicial review,
      the Court of First Instance exceeded the role of the              3. Error of law in not upholding the Commission’s market
      Community Courts in reviewing the administrative acts                  definition of end-use-specific product markets for SBM
      of the Commission, in particular by substituting its view              machinery
      for that of the Commission on a number of central
      points.
                                                                        The Commission submits that the Court of First Instance erred
The Commission submits that the Court of First Instance                 in law and infringed, in particular, Article 2 of the Merger
contradicts itself by purporting to apply a standard of review          Regulation by holding that ‘the contested decision does not
based on manifest error of assessment while, in reality,                provide sufficient evidence to justify the definition of distinct
applying a different standard.                                          sub-markets among SBM machines with reference to their
                                                                        end-use’ and that ‘consequently the only sub-markets it is
                                                                        necessary to consider are those for low and high capacity
                                                                        machines’.
The Commission also submits that the standard of proof
required by the Court of First Instance in the contested
judgment exceeds the standard of review of the legality of
Community acts. Article 230 EC grants the Community Courts
the competence to review the legality of acts of the institutions.
The Commission considers that the Court of First Instance,
whilst referring to ‘manifest error of assessment’ in the               4. Error of law in not upholding the Commission’s finding
                                                                             of strengthening of Tetra’s carton dominance —
judgment, has in fact significantly raised the level of standard
of proof required from the Commission to prohibit a conglom-                 infringement of Article 2 of the Regulation, distortion
                                                                             of the facts and failure to take into account the
erate merger and has thereby gone beyond the review of
legality. In essence, the Court attempts to apply a standard                 Commission’s arguments
based on the need for the Commission to ‘convince’ the Court
rather than on the necessity for the Applicant to show either
an error of act or of law or a manifest error of assessment on
the part of the Commission. This standard leads the Court of            The Commission respectfully submits that the Court of First
First Instance unlawfully to substitute its own assessment for          Instance erred in law by holding that the evidence relied on in
that of the Commission.                                                 the contested decision does not establish to the requisite legal
                                                                        standard that the effects of the modified merger on Tetra’s
                                                                        position, principally on the aseptic carton markets, would, by
                                                                        eliminating Sidel as a potential competitor, be such as to fulfil
                                                                        the conditions of Article 2(3) of the Regulation.
2.   Error of law in requiring the Commission to assess the
     impact of ‘the illegal nature’ of certain conduct on the
     incentives of the merged entity to engage in leveraging            The Decision was based on a horizontal-type of analysis
     and to take account of purely behavioural remedies —               relating to elimination of potential competition. In the carton
     infringement of Articles 2 and 8 of the Regulation                 market, Tetra is strongly dominant, with a market share above
                                                                        80 % in aseptic carton. Competition is thus already severely
                                                                        weakened. The main threats to Tetra as regards the packaging
The Commission respectfully submits that the Court of First             of sensitive products in carton come from outside the carton
Instance erred in law and infringed, in particular, Articles 2          market and most notably from the growing market for PET,
 ---pagebreak--- 22.3.2003               EN                        Official Journal of the European Union                                              C 70/5
where Sidel, with 60 % market share for all SBM machines by               As the concentration had already been implemented, the
capacity, has a leading position. By buying Sidel, Tetra                  Commission issued a statement of objections, to which Tetra
eliminated the strongest independent competitive constraint               replied, and held a hearing, with a view to taking a decision
coming from the biggest supplier on the PET side and would                setting out measures in order to restore conditions of effective
thus strengthen its carton dominance.                                     competition pursuant to Article 8(4) of the Regulation. On
                                                                          30 January 2002, the Commission adopted such a decision
                                                                          (‘the divestiture decision’).
( 1) OJ C 68, 16.03.2002, p. 19.
( 2) Council Regulation (EEC) No 4064/89 of 21 December 1989 on
     the control of concentrations between undertakings (OJ L 395,
     30.12.1989, p. 1).
( 3) Commission Decision C (2001) 3345 final of 30 October 2001
     declaring a concentration to be incompatible with the common         Article 1 of the divestiture decision orders Tetra ‘to separate
     market, Case No COMP/M.2416 Tetra Laval/Sidel.                       itself from Sidel... in accordance with the provisions of the
                                                                          Annex to this Decision’. Point 1(5) of the Annex requires Tetra
                                                                          to divest itself of its entire shareholding in Sidel. Point 4(1) of
                                                                          the Annex specifies a deadline for completion of the divestiture.
Appeal brought on 13 January 2003 by the Commission                       By separate applications, Tetra sought the annulment of both
of the European Communities against the judgment deliv-                   the prohibition decision (case T-5/02) and the divestiture
ered on 25 October 2002 by the First Chamber of the                       decision (case T-80/02). The Court of First Instance gave
Court of First Instance of the European Communities in                    judgment in both cases on 25 October 2002.
case T-80/02 between Tetra Laval BV and the Commission
                  of the European Communities
                         (Case C-13/03 P)
                                                                          In its judgment in case T-5/02, the Court of First Instance
                                                                          annulled the prohibition decision.
                          (2003/C 70/08)
An appeal against the judgment delivered on 25 October 2002
                                                                          In its judgment in case T-80/02 (‘the contested judgment’), the
by the First Chamber of the Court of First Instance of the                Court of First Instance observed that the concentration had
European Communities in case T-80/02 ( 1) between Tetra
                                                                          indeed been implemented and that the separation of the
Laval BV and the Commission of the European Communities,                  undertakings involved in the concentration was the logical
was brought before the Court of Justice of the European                   consequence of the prohibition decision. It added that the
Communities on 13 January 2003 by the Commission of the
                                                                          adoption of a divestiture decision presupposes that the preced-
European Communities, represented by Michel Petite, Anthony               ing prohibition decision is valid. Accordingly, the annulment
Whelan and Per Hellström, acting as agents, with an address               of the prohibition decision deprives the divestiture decision of
for service in Luxembourg.
                                                                          any legal basis. The Court of First Instance concluded that,
                                                                          since it had annulled the prohibition decision by its judgment
                                                                          in case T-5/02, the action for the annulment of the divestiture
The Appellant claims that the Court should:                               decision had to be upheld, without examining the other pleas
                                                                          raised by Tetra.
—      annul the judgment of the Court of First Instance of
       25 October 2002 in case T-80/02;
—      order Tetra Laval BV to pay the Commission’s costs.
                                                                          The Commission has appealed on a number of points of law
                                                                          against the judgment of the Court of First Instance in case T-
                                                                          5/02. Should that appeal lead to the annulment of the
Pleas in law and main arguments                                           judgment of the Court of First Instance in that case, the
                                                                          judgment of the Court of First Instance in case T-80/02 will be
                                                                          based on a premise vitiated by an error of law, that is, the
The Commission adopted a decision pursuant to Article 8(3)                invalidity of the prohibition decision. Just as the annulment of
of the Merger Regulation (2) on 30 October 2001 prohibiting               the prohibition decision was the sole ground for the annulment
the notified concentration between Tetra Laval SA, a wholly               of the divestiture decision, the invalidity of the judgment
owned subsidiary of Tetra Laval BV (‘Tetra’) and Sidel SA (‘the           annulling the former would entail the annulment of the
prohibition decision’) ( 3).                                              judgment pronouncing the invalidity of the latter.


title: JUDGMENT OF THE COURT of 10 March 1998 in Joined Cases C-364/95 and C-365/95 (references for a preliminary ruling from the Finanzgericht Hamburg): T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jonas (Bananas - Common organisation of the market - Import regime - Framework Agreement on bananas - GATT - Article 234 of the EC Treaty)

text:
2.5.98                 EN                     Official Journal of the European Communities                                      C 137/3
(Rapporteur), President of the Chamber, R. Schintgen,                    the Court (Fifth Chamber), composed of: C. Gulmann,
G. F. Mancini, P. J. G. Kapteyn and G. Hirsch, Judges; G.                President of the Chamber, M. Wathelet, J. C. Moitinho de
Tesauro, Advocate-General; L. Hewlett, Administrator, for                Almeida (Rapporteur), D.A.O. Edward and J.-P.
the Registrar, has given a judgment on 5 March 1998, in                  Puissochet, Judges; A. La Pergola, Advocate-General; R.
which it has ruled:                                                      Grass, Registrar, has given a judgment on 5 March 1998,
                                                                         in which it:
1. properly construed, Article 10 of Council Directive 69/
     335/EEC of 17 July 1969 concerning indirect taxes on                1. declares that, by failing to adopt within the prescribed
     the raising of capital, as amended by Directive 85/303/                  time limit the laws, regulations and administrative
     EEC, precludes the levying of 0,5 % duty on the                          provisions necessary to comply with Council Directive
     notarial deed recording the contribution of part of the                  93/89/EEC of 25 October 1993 on the application by
     share capital paid up after the formation of a capital                   Member States of taxes on certain vehicles used for
     company, where duty of 1 % has already been charged                      the carriage of goods by road and tolls and charges for
     on the whole of the nominal value of the share capital.                  the use of certain infrastructures, the French Republic
                                                                              has failed to fulfil its obligations within the meaning
                                                                              of the first subparagraph of Article 13(1) of that
2. Article 10 of Directive 69/335/EEC, as amended, gives                      Directive;
     rise to rights on which individuals may rely before
     national courts. Those courts are obliged to leave                  2. orders the French Republic to pay the costs.
     unapplied provisions of national law incompatible
     therewith.
                                                                         (1) OJ C 199, 28.6.1997.
                                                                         (2) OJ L 279, 12.11.1993, p. 32.
(1) OJ C 370, 7.12.1996.
(2) OJ, English Special Edition 1969 (II), p. 412.
(3) OJ L 156, 15.6.1985, p. 23.
                                                                                JUDGMENT OF THE COURT
                                                                                of 10 March 1998
                JUDGMENT OF THE COURT                                    in Joined Cases C-364/95 and C-365/95 (references for
                                                                         a preliminary ruling from the Finanzgericht Hamburg):
                         (Fifth Chamber)                                  T. Port GmbH & Co. v. Hauptzollamt Hamburg-Jonas (1)
                        of 5 March 1998                                  (Bananas Ð Common organisation of the market Ð
in    Case    C-175/97: Commission of the European                       Import regime Ð Framework Agreement on bananas Ð
              Communities v. French Republic (1)                                    GATT Ð Article 234 of the EC Treaty)
(Directive 93/89/EEC on the application by Member                                                 (98/C 137/06)
States of taxes on certain vehicles used for the carriage of
goods by road and tolls and charges for the use of certain                              (Language of the case: German)
             infrastructures Ð Non-transposition)
                          (98/C 137/05)                                    (Provisional translation; the definitive translation will be
                                                                                published in the European Court Reports)
                 (Language of the case: French)
                                                                         In Joined Cases C-364/95 and C-365/95: references to the
                                                                         Court pursuant to Article 177 of the EC Treaty from the
  (Provisional translation; the definitive translation will be           Finanzgericht (Finance Court), Hamburg, Germany, for a
          published in the European Court Reports)                       preliminary ruling in the proceedings pending before that
                                                                         court between T. Port GmbH & Co. and Hauptzollamt
                                                                         Hamburg-Jonas Ð on the interpretation of Article 234 of
In Case C-175/97: Commission of the European                             the EC Treaty, on the validity of Commission Regulation
Communities (Agents: Michel Nolin and Laura Pignataro)                   (EC) No 478/95 of 1 March 1995 on additional rules for
v. French Republic (Agents: Kareen Rispal-Bellanger and                  the application of Council Regulation (EEC) No 404/93 as
Gautier Mignot) Ð application for a declaration that, by                 regards the tariff quota arrangements for imports of
failing to adopt, or in any event failing to notify, within              bananas into the Community and amending Regulation
the prescribed time limit, the laws, regulations and                     (EEC) No 1442/93 (2) and on the direct effect of the
administrative provisions necessary to comply with                       provisions of the General Agreement on Tariffs and Trade
Council Directive 93/89/EEC of 25 October 1993 on the                    (GATT) Ð the Court, composed of: G. C. Rodríguez
application by Member States of taxes on certain vehicles                Iglesias, President, C. Gulmann, M. Wathelet, R.
used for the carriage of goods by road and tolls and                     Schintgen (Rapporteur), (Presidents of Chambers), G. F.
charges for the use of certain infrastructures (2), the                  Mancini, P. J. G. Kapteyn, J. L. Murray, D. A. O. Edward,
French Republic has failed to fulfil its obligations within              J.-P. Puissochet, G. Hirsch and P. Jann, Judges; M. B.
the meaning of the EC Treaty and under that Directive Ð                  Elmer, Advocate-General; H.A. Rühl, Principal Admini-
 ---pagebreak--- C 137/4               EN                  Official Journal of the European Communities                                       2.5.98
strator, for the Registrar, has given a judgment on                  composed of: C. Gulmann, President of the Chamber, M.
10 March 1998, in which it has ruled:                                Wathelet, D. A. O. Edward (Rapporteur), P. Jann and L.
                                                                     Sevón, Judges; D. Ruiz-Jarabo Colomer, Advocate-
1. the first paragraph of Article 234 of the EC Treaty               General; H. von Holstein, Deputy Registrar, for the
     must be interpreted as not applying to cases involving          Registrar, has given a judgment on 12 March 1998, in
     imports of bananas from a third country which is not            which it:
     a party to an international agreement concluded by
     Member States before the entry into force of the                1. declares that by excluding, by regulation or
     Treaty.                                                              administrative practice, the taking into account of
                                                                          previous employment in the public service of another
2. Commission Regulation (EC) No 478/95 of 1 March                        Member State for the purposes of granting to an
     1995 on additional rules for the application of Council              employee in Greek public service a seniority increment
     Regulation (EEC) No 404/93 as regards the tariff                     and of grading him on the salary scale, on the sole
     quota arrangements for imports of bananas into the                   ground that the previous employment was not
     Community and amending Regulation (EEC) No 1442/                     performed in Greek public service, the Hellenic
     93 is invalid to the extent to which Article 3(2) thereof            Republic is in breach of its obligations under
     imposes only on category A and C operators the                       Community law, in particular within the meaning of
     obligation to obtain export licences for bananas from                Article 48 of the EC Treaty and Article 7(1) of
     Colombia, Costa Rica or Nicaragua.                                   Council Regulation (EEC) No 1612/68 of 15 October
                                                                          1968 on freedom of movement for workers within the
                                                                          Community;
(1) OJ C 16, 20.1.1996.
(2) OJ L 49, 4.3.1995, p. 13.
                                                                     2. orders the Hellenic Republic to pay the costs.
                                                                     (1) OJ C 210, 20.7.1996.
                                                                     (2) OJ, English Special Edition 1968 (II), p. 475.
               JUDGMENT OF THE COURT
                        (Fifth Chamber)
                       of 12 March 1998
      in Case C-187/96: Commission of the European                                  JUDGMENT OF THE COURT
             Communities v. Hellenic Republic (1)                                            (Fourth Chamber)
(Failure of a Member State to fulfil its obligations Ð                                      of 12 March 1998
Freedom of movement for workers Ð Article 48 of the EC
                                                                     in Case C-270/96 (reference for a preliminary ruling from
Treaty Ð Article 7 of Regulation (EEC) No 1612/68 Ð
                                                                     the Tribunal Administratif, Paris): Laboratoires Sarget SA
Person working in the public service of a Member State Ð
                                                                     v. Fonds d'intervention et de reÂgularisation du marcheÂ du
Mutual recognition of periods of employment in the
                                                                                sucre (FIRS) (1)
           public service of another Member State)
                                                                     (Refund for use of sugar in the manufacture of certain
                         (98/C 137/07)
                                                                     chemical products Ð Anti-asthenia products Ð Tariff
                                                                                classification)
                (Language of the case: Greek)
                                                                                (98/C 137/08)
  (Provisional translation; the definitive translation will be                       (Language of the case: French)
          published in the European Court Reports)
In Case C-187/96: Commission of the European                           (Provisional translation; the definitive translation will be
Communities (Agent: Maria Patakia) v. Hellenic Republic                        published in the European Court Reports)
(Agents: Ioanna Galani-Maragkoudaki and Stamatina
Vodina) Ð application for a declaration that by excluding,           In Case C-270/96: reference to the Court pursuant to
by regulation or administrative practice, the taking into            Article 177 of the EC Treaty from the Tribunal
account of previous employment in the public service of              Administratif (Administrative Court), Paris, for a
another Member State for the purposes of granting to an              preliminary ruling in the proceedings pending before that
employee in Greek public service a seniority increment               court between Laboratoires Sarget SA and Fonds
and of grading him on the salary scale, on the sole ground           d'intervention et de reÂgularisation du marcheÂ du sucre
that that previous employment was not performed in                   (FIRS) Ð on the interpretation of Council Regulation
Greek public service, the Hellenic Republic is in breach of          (EEC) No 1010/86 of 25 March 1986 laying down
its obligations under Community law, in particular within            general rules for the production refund on certain sugar
the meaning of Articles 5 and 48 of the EC Treaty and                products used in the chemical industry (2), as amended by
Article 7(1) of Council Regulation (EEC) No 1612/68 of               Article 9 of Commission Regulation (EEC) No 1714/88
15 October 1968 on freedom of movement for workers                   of 13 June 1988 amending certain regulations concerning
within the Community (2) Ð the Court (Fifth Chamber),                the application of the common market organisation for


title: JUDGMENT OF THE COURT (Sixth Chamber) of 26 September 1996 in Case C-43/95 (reference for a preliminary ruling from the Högsta Domstolen): Data Delecta Aktiebolag and Ronny Forsberg v. MSL Dynamics (Equal treatment - Discrimination on grounds of nationality - Security for the costs of judicial proceedings)

text:
No C 354/ 8             EN                   Official Journal of the European Communities                                   23 . 11 . 96
      capital must be interpreted as applying, where a                       he provides constitutes a prerequisite for the
      company benefits from an interest-free loan, to the                    performance of the principal artistic or entertainment
      amount of interest saved.                                              service supplied.
2 . Article 10 of Directive 69/335/EEC does not preclude                2 . The fact that the person concerned has undertaken in
      the levying of income tax on a parent company which                    addition to coordinate the sound effects to be produced
      has granted an interest-free loan to one of its                        with his assistance with certain visual effects produced
      subsidiaries, on the basis of interest fixed after the                 by other persons cannot affect the answer given to the
      event.                                                                 first question.
( 1 ) OJ No C 351 , 10 . 12 . 1994 .                                    (') OJ No C 392 , 31 . 12 . 1994 .
               JUDGMENT OF THE COURT
                                                                                JUDGMENT OF THE COURT
                          ( Sixth Chamber)
                                                                                ( Sixth Chamber )
                      of 26 September 1996
                                                                                of 26 September 1996
in Case C-327/94 ( reference for a preliminary ruling from
the Finanzgericht, Cologne ): Jiirgen Dudda v. Finanzamt                in Case C-43/95 ( reference for a preliminary ruling from the
                       Bergisch Gladbach (')                            Hogsta Domstolen ): Data Delecta Aktiebolag and Ronny
                                                                                Forsberg v. MSL Dynamics (')
 ( Value added tax — Interpretation of Article 17 (2) and
Article 3 (a) of Directive 77/388/EEC and of Article 3 (b)              (Equal treatment — Discrimination on grounds of
and the first paragraph of Article 5 of Directive                       nationality — Security for the costs of judicial
 79/1072/EEC — Refund of value added tax to taxable                                                 proceedings)
    persons not established in the territory of the country)                                       ( 96/C 354/ 15 )
                            ( 96/C 354/ 14 )
                                                                                (Language of the case: Swedish)
                (Language of the case: German)
                                                                        (Provisional translation; the definitive translation will be
 (Provisional translation; the definitive translation will be                     published in the European Court Reports)
           published in the European Court Reports)
                                                                        In Case C-43/95 : reference to the Court under Article 177 of
In Case C-327/94 : reference to the Court under Article 177             the EC Treaty from the Hogsta Domstolen [ Supreme
of the EC Treaty from the Finanzgericht [Finance Court],                Court], Stockholm, for a preliminary ruling in the
 Cologne ( Germany ) for a preliminary ruling in the                    proceedings pending before that court between Data
 proceedings pending before that court between Jiirgen                  Delecta Aktiebolag and Ronny Forsberg, and MSL
 Dudda and Finanzamt Bergisch Gladbach on the                           Dynamics Ltd — on the interpretation of Article 6 of the EC
 interpretation of Article 9 ( 2 ) of the sixth Council Directive       Treaty — the Court ( Sixth Chamber ) composed of: C. N.
 77/388/EEC of 17 May 1977 on the harmonization of the                  Kakouris , President of the Chamber, G. F. Mancini and
 laws of the Member States relating to turnover taxes —                 P. J. G. Kapteyn ( Rapporteur ), Judges; A. La Pergola ,
 common system of value added tax : uniform basis of                    Advocate-General, R. Grass, Registrar, gave a judgment on
 assessment ( OJ No L 145 , 1977, p. 1 ), the Court ( Sixth             26 September 1996 , the operative part of which is as
 Chamber ), composed of: C. N. Kakouris ( Rapporteur ),                 follows :
 President of the Chamber, P. J. G. Kapteyn and J. L. Murray,
Judges ; N. Fennelly, Advocate-General ; H. von Holstein,                The first paragraph of Article 6 of the EC Treaty must be
 Deputy Registrar, has given a judgment on 26 September                  interpreted as precluding a Member State from requiring
  1996 in which it rules :
                                                                        security to be lodged for the costs ofjudicial proceedings by
                                                                        a legal person established in another Member State which
  1 . The first indent of Article 9 (2) (c) of the sixth Council         has brought, before one of its courts, an action against one
       Directive 77/388/EEC of 17 May 1977 on the                        of its nationals or a company established in the Member
       harmonization of the laws of the Member States relating           State in question , where no such requirement can be
       to turnover taxes — common system of value added tax:             imposed on legal persons from that State, in a situation in
       uniform basis of assessment must be interpreted as                which the action is connected with the exercise of
       covering the activity of a person who provides                    fundamental freedoms guaranteed by Community law.
       sound-engineering for artistic or entertainment events
       by choosing and operating the equipment used,                     (') OJ No C 119 , 13 . 5 . 1995 .
       adjusting it to the particular acoustic conditions and the
       desired sound effects, and who supplies the requisite
       equipment and operating staff, where the service which


title: Case T-797/14: Order of the General Court of 28 December 2015 — Skype v OHIM — Sky International (SKYPE) (Community trade mark — Opposition proceedings — Withdrawal of the opposition — No need to adjudicate)

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/34

         Order of the General Court of 28 December 2015 — Skype v OHIM — Sky International (SKYPE)
   (Case T-797/14) (1)

   ((Community trade mark - Opposition proceedings - Withdrawal of the opposition - No need to adjudicate))
   (2016/C 106/39)
   Language of the case: English

      Parties

      Applicant: Skype Ultd (Dublin, Ireland) (represented by: A. Carboni and M. Browne, solicitors)

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

      Other party to the proceedings before the Board of Appeal of OHIM intervening before the General Court: Sky International AG (Zug, Switzerland) (represented by: D. Rose and J. Curry, lawyers)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 29 September 2014 (Case R 1075/2013-4), relating to opposition proceedings between Sky International AG and Skype.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action.

               2.

               Skype Ultd and Sky International AG are ordered to bear their own costs and to each pay half of the costs incurred by the Office for Harmonisation in the Internal Market (trade marks and designs) (OHIM).

      (1)  OJ C 46, 9.2.2015.


title: Case T-157/09 P: Order of the General Court of 15 September 2010 — Marcuccio v Commission (Appeal — Civil Service — Officials — Reasonable time for the submission of a claim for compensation — Lateness — Appeal in part manifestly inadmissible and in part manifestly unfounded)

text:
               6.11.2010

               EN

               Official Journal of the European Union

               C 301/31

         Order of the General Court of 15 September 2010 — Marcuccio v Commission
   (Case T-157/09 P) (1)

   (Appeal - Civil Service - Officials - Reasonable time for the submission of a claim for compensation - Lateness - Appeal in part manifestly inadmissible and in part manifestly unfounded)
   2010/C 301/52
   Language of the case: Italian

      Parties

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

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

      Re:

   Appeal lodged against the order of the European Union Civil Service Tribunal (First Chamber) of 18 February 2009 in Case F-42/08 Marcuccio v Commission ECR-SC 0000, seeking the 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 141, 20.6.2009.


title: Case T-344/99: Action brought on 1 December 1999 by Lucía Recalde Langarica against Commission of the European Communities

text:
18.3.2000               EN                    Official Journal of the European Communities                                       C 79/33
— award damages provisionally estimated, on an equitable                 Action brought on 1 December 1999 by Lucı́a Recalde
     basis, as amounting to LFR 600 000;                                 Langarica against Commission of the European Communi-
                                                                                ties
— order the defendant to pay the costs.
                                                                                (Case T-344/99)
Pleas in law and main arguments
                                                                                (2000/C 79/71)
In June 1996 the appointing authority notified the applicant
of its decision to open disciplinary proceedings against him on
account of alleged tampering with the computer program                                      (Language of the case: Spanish)
relating to the remuneration of officials. The Disciplinary
Board delivered its reasoned opinion in July 1997, in which it
proposed imposition of the disciplinary measure of a written             An action against the Commission of the European Communi-
warning. Ultimately, in the context of the discussion provided           ties was brought before the Court of First Instance of the
for in the third paragraph of Article 7 of Annex IX to the Staff         European Communities on 1 December 1999 by Lucı́a
Regulations, the appointing authority expressed its wish to              Recalde Langarica, residing in Brussels, represented by Ramon
make further inquiries. In March 1998 the applicant’s advisers           Garcı́a-Gallardo and Gerard Pérez Olmo, of the Madrid and
were informed that the appointing authority had decided to               Barcelona Bars respectively, of S.J. Berwin & Co, 19 Square de
refer the matter once again to the Disciplinary Board. The               Meeûs, Brussels.
applicant was subsequently informed that his personal file was
being examined by DG IX.
                                                                         The applicant claims that the Court should:
Against that background, the applicant, in bringing the present
action, contests in particular the rejection by the appointing           — annul the measure adopted by the Commission by means
authority of his application for the closure of the disciplinary              of its letter of 26 February 1999, and subsequently
proceedings brought against him.                                              implemented by means of acts communicated by letter
                                                                              of 5 May 1999, whereby the applicant’s entitlement to
                                                                              expatriation allowance was retrospectively withdrawn.
In support of his claims, the applicant pleads:
                                                                         — order the defendant to pay the costs.
— infringement of the third paragraph of Article 7 of
     Annex IX to the Staff Regulations, failure to comply with
     the duty to have regard for the welfare and interests of
     officials and failure to comply with the principles of good         Pleas in law and main arguments
     management and sound administration. He maintains in
     that regard that the appointing authority has known since
     September 1997 that he did not wish to add anything to              The applicant in the present case contests the appointing
     the statements made in the context of the investigation of          authority’s refusal to recognise her claim to expatriation
     the file in issue. Moreover, whilst the appointing authority        allowance as from her entry into the service of the Com-
     is not bound by strict or mandatory time-limits for the             mission. She observes in that regard that the refusal was
     purposes of adopting the decision referred to in the third          adopted retroactively, after the defendant administration itself
     paragraph of Article 7 of Annex IX to the Staff Regulations,        had, in mid-1996, provisionally granted her the aforemen-
     such a decision must nevertheless be taken within a                 tioned allowance. Following that provisional allocation, the
     reasonable time;                                                    applicant did not receive any notification whatsoever that her
                                                                         file was under review, which, together with the fact that she
— infringement of the rights of the defence, of Article 87 of            continued to receive the allowance in question, led her to
     the Staff Regulations and of Articles 1, 7 and 11 of                believe her situation with the Commission to be definitive.
     Annex IX to the Staff Regulations. In that regard, he
     maintains, inter alia, that disciplinary proceedings, as
     organised by the Staff Regulations, do not authorise the            The applicant categorically denies having worked and pursued
     appointing authority, in the context of one and the same            a professional activity in Belgium during the five years
     set of proceedings, to proceed to make further inquiries            preceding the six months prior to her entering the Community
     after the Disciplinary Board has delivered its reasoned             civil service. In support of her arguments, she claims that:
     opinion. Moreover, the hearing referred to in the third
     paragraph of Article 7 of Annex IX to the Staff Regulations         — her fundamental rights of defence were infringed with
     cannot be used by the appointing authority in order to                   regard to the obligation to state reasons for the adoption
     pursue an inquiry. By the same token, the Disciplinary                   of Community administrative acts;
     Board’s opinion of 25 November 1999 stated in clear
     terms that no new facts existed which might warrant the
                                                                         — the principle of legitimate expectations was infringed;
     matter being referred a second time to that Board.
                                                                         — the contested decision was unlawfully implemented with
                                                                              retroactive effect;
 ---pagebreak--- C 79/34                EN                     Official Journal of the European Communities                                      18.3.2000
— there exists a parallel file with regard to the present case;               Commission. Moreover, it is not manifestly evident that
                                                                              the application of that measure gives rise to a distortion of
— her rights under the Staff Regulations (Article 4 of                        competition which would affect intra-Community trade.
    Annex VII to the Staff Regulations) were infringed so far
    as concerns the substance of her case.                               — the Commission misinterpreted the concept of ‘nature or
                                                                              scheme of the system’, which the defendant institution
                                                                              itself (uses) in its Communication on tax aid. In that
                                                                              connection, the applicant considers the provincial legis-
                                                                              lation at issue is supported by a long historical tradition,
                                                                              both at provincial and national level, and lays down
                                                                              objective criteria of general application, which do not
                                                                              discriminate between classes of economic operators to the
Action brought on 6 December 1999 by the Territorio                           detriment of some of them and which are necessary in
Histórico de Alava, Arabako Foru Aldundia — Diputación                      order to achieve the objective pursued, as well as to ensure
Foral de Alava against the Commission of the European                         the proper and efficient operation of the system of which
                           Communities                                        it forms part.
                                                                         — it is impossible for the Spanish authorities to have infringed
                         (Case T-346/99)
                                                                              the obligation to notify laid down in Article 88(3) of the
                                                                              EC Treaty, since they have always been certain that the
                          (2000/C 79/72)                                      reduction of the basis of assessment in question in no way
                                                                              constitutes State aid. The applicant would go so far as to
                                                                              describe as absurd the requirement that measures be
                   (Language of the case: Spanish)                            notified where there are not even any doubts as to their
                                                                              general nature.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               — the Commission misused its powers in so far as it takes
European Communities on 6 December 1999 by the Territorio                     the view that the Commission used its power to engage
Histórico de Alava, Arabako Foru Aldundia — Diputación                      procedures under Articles 87 and 88 in order to pursue
Foral de Alava, Alava (Spain) represented by Antonio Creus                    objectives relating to tax harmonisation.
Carreras and Begoña Uriarte Valiente, of the Barcelona and
Madrid Bars respectively, with an address for service in Brussels        Finally, the applicant alleges infringement of the obligation to
at the Chambers of Cuatrecasas Abogados, 60 Avenue de                    state reasons for measures.
Cortenbergh.
The applicant claims that the Court should:
— annul the Commission’s decision of 14 July 1999 in so far
    as it regards the reduction of the corporation tax applicable
    to newly created undertakings, provided for in Article 6 of
    Provincial Law of Alava No 24/1996, as State aid within              Action brought on 6 December 1999 by the Territorio
    the meaning of Article 87 EC;                                        Histórico de Gipuzkoa, Gipuzkoako Foru Aldundia —
                                                                         Diputación Foral de Gipuzkoa against the Commission of
— order the Commission to pay the costs.                                                    the European Communities
Pleas in law and main arguments                                                                   (Case T-347/99)
The applicant contests the characterisation as State aid of the                                    (2000/C 79/73)
reduction of the basis of assessment for corporation tax,
provided for in Article 26 of Provincial Law of Alava
No 24/1996 for newly created undertakings which invest a                                     (Language of the case: Spanish)
minimum of PTA 80 million, create 10 new jobs and have a
minimum paid-up capital of PTA 20 million.
                                                                         An action against the Commission of the European Communi-
                                                                         ties was brought before the Court of First Instance of the
In support of its arguments, the applicant claims that:                  European Communities on 6 December 1999 by the Territorio
                                                                         Histórico de Gipuzkoa, Gipuzkoako Foru Aldundia — Diputa-
— the Commission misinterpreted Article 87 of the EC                     ción Foral de Gipuzkoa, Gipuzkoa (Spain) represented by
    Treaty, inasmuch as it regarded the reduction of the basis           Antonio Creus Carreras and Begoña Uriarte Valiente, of the
    for assessment for newly created undertakings as State aid.          Barcelona and Madrid Bars respectively, with an address for
    The tax measure in question is of general application                service in Brussels at the Chambers of Cuatrecasas Abogados,
    and lacks the selective nature attributed to it by the               60 Avenue de Cortenbergh.


title: Case C-398/07 P: Judgment of the Court (Fifth Chamber) of 7 May 2009 — Waterford Wedgwood plc v Assembled Investments (Proprietary) Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs) (Appeal — Community trade mark — Figurative mark WATERFORD STELLENBOSCH — Opposition by the proprietor of the Community word mark WATERFORD — Refusal to register by the Board of Appeal)

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/6

         Judgment of the Court (Fifth Chamber) of 7 May 2009 — Waterford Wedgwood plc v Assembled Investments (Proprietary) Ltd, Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   (Case C-398/07 P) (1)

   (Appeal - Community trade mark - Figurative mark WATERFORD STELLENBOSCH - Opposition by the proprietor of the Community word mark WATERFORD - Refusal to register by the Board of Appeal)
   2009/C 153/12
   Language of the case: English

      Parties

      Appellant: Waterford Wedgwood plc (represented by: J. Pagenberg, Rechtsanwalt)

      Other parties to the proceedings: Assembled Investments (Proprietary) Ltd (represented by: P. Hagman, asianajaja, and J. Palm, tavaramerkkiasiamies), Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: A. Folliard-Monguiral, acting as Agent)

      Re:

   Appeal against the judgment of the Second Chamber of the Court of First Instance of 12 June 2007 in Case T-105/05 Assembled Investments (Proprietary) v Office for Harmonisation in the Internal Market (Trade Marks and Designs)(OHIM) annulling Decision R 240/2004-1 of the First Board of Appeal of OHIM of 15 December 2004 which annulled the decision of the Opposition Division dismissing the opposition filed by the proprietor of the Community word mark ‘WATERFORD’ in respect of goods in Classes 3, 8, 11, 21, 24 and 34

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Waterford Wedgwood plc to pay the costs.

      (1)  OJ C 283, 24.11.2007.


title: Judgment of the Court (Grand Chamber) of 16 November 2004 in Case C-327/02 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie (Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia — Right of establishment — National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)

text:
               8.1.2005

               EN

               Official Journal of the European Union

               C 6/7

      JUDGMENT OF THE COURT

   (Grand Chamber)
   of 16 November 2004
   in Case C-327/02 (reference for a preliminary ruling from the Rechtbank te 's-Gravenhage): Lili Georgieva Panayotova and Others v Minister voor Vreemdelingenzaken en Integratie (1)

   (Association Agreements between the Communities and, respectively, Bulgaria, Poland and Slovakia - Right of establishment - National legislation under which applications for full residence permits with a view to establishment are rejected without examination where the applicant lacks a temporary residence permit)
   (2005/C 6/12)
   Language of the case: Dutch
   In Case C-327/02: reference for a preliminary ruling under Article 234 EC from the Rechtbank te 's-Gravenhage (Netherlands), made by decision of 16 September 2002, received at the Court on 18 September 2002, in the proceedings between Lili Georgieva Panayotova, Radostina Markova Kalcheva, Izabella Malgorzata Lis, Lubica Sopova, Izabela Leokadia Topa, Jolanta Monika Rusiecka and Minister voor Vreemdelingenzaken en Integratie — the Court (Grand Chamber), composed of: V. Skouris, President, P. Jann, C.W.A. Timmermans, A. Rosas and R. Silva de Lapuerta (Presidents of Chambers), J.-P. Puissochet (Rapporteur), R. Schintgen, S. von Bahr and J.N. Cunha Rodrigues, Judges; M. Poiares Maduro, Advocate General; M.-F. Contet, Principal Administrator, for the Registrar, has given a judgment on 16 November 2004, in which it has ruled:

               1.

               Articles 45(1) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Bulgaria, of the other part, approved by Decision 94/908/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, Articles 44(3) and 58(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Poland, of the other part, approved by Decision 93/743/EC, ECSC, Euratom of the Council and the Commission of 13 December 1993, read together, and Articles 45(3) and 59(1) of the Europe Agreement establishing an association between the European Communities and their Member States, of the one part, and the Slovak Republic, of the other part, approved by Decision 94/909/EC, ECSC, Euratom of the Council and the Commission of 19 December 1994, read together, do not in principle preclude legislation of a Member State involving a system of prior control which makes entry into the territory of that Member State with a view to establishment as a self-employed person conditional on the issue of a temporary residence permit by the diplomatic or consular services of that Member State in the country of origin of the person concerned or in the country where he is permanently resident. Such a system may legitimately make grant of that permit subject to the condition that the person concerned must show that he genuinely intends to take up an activity as a self-employed person without at the same time entering into employment or having recourse to public funds, and that he possesses, from the outset, sufficient financial resources for carrying out the activity as a self-employed person and has reasonable chances of success. The scheme applicable to such residence permits issued in advance must, however, be based on a procedural system which is easily accessible and capable of ensuring that the persons concerned will have their applications dealt with objectively and within a reasonable time, and refusals to grant a permit must be capable of being challenged in judicial or quasi-judicial proceedings.

               2.

               Those provisions of the Association Agreements must be interpreted as likewise not in principle precluding such national legislation from providing that the competent authorities of the host Member State are to reject an application for a full residence permit with a view to establishment in accordance with the Association Agreements submitted in the territory of that State when the applicant lacks the temporary residence permit thus required by that legislation.

               3.

               It is immaterial in this regard that the applicant claims to satisfy clearly and manifestly the necessary substantive requirements for grant of the temporary residence permit and the full residence permit with a view to such establishment or that the applicant is legally resident in the host Member State on another basis on the date of his application where it appears that the latter is incompatible with the express conditions attached to his entry into that Member State and in particular those relating to the authorised duration of the stay.

      (1)  OJ C 274 of 9.11.2002.


title: Appeal brought on 13 January 1995 by John Deere Ltd against the judgment delivered on 27 October 1994 by the Second Chamber of the Court of First Instance of the European Communities in case T-35/92 between John Deere Ltd and the Commission of the European Communities (Case C-7/95 P)

text:
4. 3. 95               m                      Official Journal of the European Communities                                      No C 54/7
If the answer is in the affirmative : Is this also the case where               non-Member State if he would ( in theory) be entitled,
national law alone is to be applied in the recovery                             were he a national of the State in which he resides, and
proceedings on the ground that the parties to the                               according to its laws, to claim unemployment benefit
enforcement proceedings are resident within the State and                       from the competent authority of the State in which he
the enforceable decision was also obtained within the                           resides by virtue of a convention between that State and
State ?                                                                         the non-Member State ?
                                                                         ( b ) Do the provisions of an international social security
                                                                                convention which is concluded with a non-Member
                                                                                State and which ranks as domestic law by virtue of
Reference for a preliminary ruling, made pursuant to the                        having been ratified constitute legislation within the
orders of the Landessozialgericht Nordrhein-Westfalen of                        meaning of Article 3 ( 1 ) of Regulation (EEC )
25 November 1994 in the cases of Fritz Stober v.                                No 1408/71 ?
Bundesanstalt fur Arbeit and Jose Manuel Piosa Pereira v.
                     Bundesanstalt fur Arbeit                            (c) Is it possible to infer from Community law a rule that
                    (Cases C-4/95 and C-5/95 )                                  Community law is not applicable to employment in a
                                                                                non-Member State ?
                            ( 95/C 54/12 )
Reference has been made to the Court of Justice of the                   ( d) Does Chapter 6 of Title III of Regulation (EEC)
European Communities by order of the Landessozialgericht                        No 1408/71 lay down definitive rules for the
Nordrhein-Westfalen (North Rhine-Westphalia Higher                              calculation of periods of employment, thus excluding
Social Court) — 13th Chamber — of 25 November 1994,                             the application of the principle of equality of treatments
which were received at the Court Registry on 12 January                         in that regard ?
1995, for a preliminary ruling in the cases of Fritz Stober v.
Bundesanstalt fur Arbeit (Federal Employment Office )                    (*) Official Journal, English Special Edition 1971 II, p. 416 .
( Case C-4/95 ) and Jose Manuel Piosa Pereira v.
Bundesanstalt fur Arbeit on the following question:
for the purposes of the payment of family allowances in the
Federal Republic of Germany, is a person who carries on an
activity as a self-employed person in the Federal Republic of            Appeal brought on 13 January 1995 by John Deere Ltd
Germany and as such satisfies the definition of a                        against the judgment delivered on 27 October 1994 by the
'self-employed person' within the meaning of Article                     Second Chamber of the Court of First Instance of the
1 ( a ) ( iv ) but not the definition contained in the first             European Communities in case T-35/92 between John
sub-alternative of the second alternative in Article 1 (a ) ( ii) in     Deere Ltd and the Commission of the European
conjunction with Paragraph I.C.(b ) of Annex I a                                                    Communities
'self-employed person' within the meaning of Article 73 of                                        (Case C-7/95 P)
Regulation (EEC ) No 1408/71 ( x )?
                                                                                ( 95/C 54/14 )
( x ) Official Journal, English Special Edition 1971 II, p. 416.
                                                                         An appeal against the judgment delivered on 27 October
                                                                          1994 by the Second Chamber of the Court of First Instance
                                                                         of the European Communities in case T-35/92 between John
                                                                         Deere Ltd and the Commission of the European
Reference for a preliminary ruling, made pursuant to the                 Communities, was brought before the Court of Justice of
order of the Schleswig-Holsteinisches Landessozialgericht                the European Communities on 13 January 1995 by John
of 28 November 1994 in the case of Aororita Hansen v.                    Deere Ltd, of 15/19 York Place, Edinburgh (United
                      Bundesanstalt fur Arbeit                           Kingdom), represented by Hans-Jorg Niemeyer and Rainer
                           (Case C-6/95 )                                Bechtold, Rechtsanwalte, of Gleiss Lutz Hootz Hirsch and
                             ( 95/C 54/13 )                              Partners, Brussels, with an address for service in
                                                                         Luxembourg at the Chambers of Loesch and Wolter, 11 ,
                                                                         Rue Goethe.
Reference has been made to the Court of Justice of the
European           Communities         by      order      of     the
Schleswig-Holsteinisches Landessozialgericht ( Schleswig                The Appellant claims that the Court should:
Holstein Higher Social Court) — 7th Division — of
28 November 1994, which was received at the Court                        1 . quash the decision of the Court of First Instance of
Registry on 13 January 1995 , for a preliminary ruling in the                  27 October 1994 in case T-35/92, notified to the
case of Aororita HanEen v. Bundesanstalt fur Arbeit                            Appellant on 3 November 1994;
( Federal Employment Office) on the following questions:
                                                                         2 . annul      the   Commission      decision   92/157/EEC      of
(a ) Under Article 3 ( 1 ) of Regulation ( EEC )                               17 February 1992 relating to a proceeding under
       No 1408/71 0 ), is a national of a Member State                         Article 85 of the EEC Treaty (IV/B-2/3 1.370 and 31.446
       residing in another Member State entitled to                            — UK Agricultural Tractor Registration Exchange (*))
       unemployment benefit on the basis of employment in a                    and
 ---pagebreak---  No C 54/8            EN                  Official Journal of the European Communities                                   4. 3 . 95
 3 . order the Commission to pay the costs of the                    The decisive question whether the information system, by
     Applicant/Appellant in proceedings both before the              removing or reducing uncerainty about the market, in any
     Court of First Instance and before the Court of                 way restricted the members' freedom to determine their
     Justice.                                                        market policy independently, has not been proven either by
                                                                     the Court of First Instance or the Commission.
Pleas in law and main arguments:                                     The Court of First Instance has also committed errors of law
                                                                     in concluding that the information system discriminates
                                                                     against new competitors wishing to penetrate the UK
 1 . Contradictory and insufficient reasoning                        agricultural market and by claiming that Article 85 ( 1 )
                                                                     'prohibits both actual anti-competitive effects and purely
                                                                     potential effects, provided that they are sufficiently
The Court of First Instance committed an error of law in             appreciable'.
upholding the Commission decision in which the
Commission — with respect to John Deere Ltd —
erroneously considered the legality of the information               5 . Misapplication of Article 85 ( 1 ) with respect to the
system instead of the data system. Moreover, the Court of                Agricultural Engineers' Association ('AEA') meetings
First Instance has wrongly concluded that the Commission
decision on the legality of the data system was sufficiently         Under this plea, the Appellant submits that the Court of
reasoned .
                                                                     First Instance erred in law in upholding the Commission's
                                                                     unfounded assertion that the regular meetings within the
                                                                     AEA Committee gave the members a 'forum for contacts'
2. Misapplication        of   Article   85   (1)    concerning       facilitating a high price policy and thus restricting
     agreement                                                       competition within the meaning of Article 85 ( 1 ).
The Court of First Instance committed an error of law in             6. Misapplication of Article 85 ( 1 ) concerning restriction
concluding that there was an agreement or tacit agreement                of intra-brand competition
between the members of the information system to define
their dealers' territorities by reference to the United              The Court of First Instance committed an error of law in
Kingdom post code system. Neither the Court of First
Instance nor the Commission found the slightest trace of             upholding the Commission's conclusion that the
evidence for such an alleged agreement.                              information system made it possible for the manufacturers
                                                                     to 'confer absolute territorial protection on each of their
                                                                     dealers'. Furthermore, the Court of First Instance wrongly
3 . Incorrect characterization of the UK tractor market as a         upheld the Commission's finding that the information
     closed oligopoly                                                system enabled the manufacturers to monitor parallel
                                                                     imports by means of the chassis number of the vehicles.
The Court of First Instance has wrongly concluded that the           7. Misapplication of Article 85(1 ) concerning the effect on
UK tractor market must be regarded as a closed oligopoly                 trade between the United Kingdom and the rest of the
with already-weakened competition. Even in the opinion of                Common Market
the Commission's expert the UK tractor market is
competitive. The Court of First Instance has committed a
manifest error in its analysis of the UK tractor market as it       The Court of First Instance committed an error of law in
did not take into account all relevant facts, it failed to          upholding the Commission's conclusion that the effect on
consider the Appellant's expert evidence, and its own               trade between Member States was appreciable as, inter alia,
findings contain substantive inaccuracy.                            the prices charged in the United Kingdom for tractors could
                                                                    be 'maintained at a supra-competitive level'.
4. Misapplication of Article 85 ( 1 ) concerning restriction
     of competition among suppliers                                  8 . The Application of Article 85 ( 3 ) was wrongly
                                                                         refused
The Court of First Instance committed an error in law in            The Court of First Instance committed an error of law in
finding that the members of the information system were             concluding that the information system and the data system
able to gain knowledge about each competitor's market               did not qualify for an exemption under Article 85 ( 3 ).
strategy which might have facilitated collusive behaviour or
might have enabled them to adopt parallel prices. The Court
of First Instance erred in law in upholding the Commission's        (!) OJ No L 68 , 13 . 3 . 1992, p. 19 .
finding that the information system had a 'stabilizing effect'.
The System did not enable the members to start 'immediate
countermoves' against the competitors' initiatives and, thus,
dissuade suppliers from launching such initiatives.


title: Case C-312/09: Order of the Court (Seventh Chamber) of 17 June 2010 (reference for a preliminary ruling from the Anotato Dikastirio Kyprou (Republic of Cyprus)) — Giorgos Michalias v Christina A. Ioannou-Michalia (Article 104(3), second paragraph of the Rules of Procedure — Regulation (EC) No 1347/2000 — Articles 2, 42 and 46 — Judicial cooperation in civil matters — Jurisdiction in matrimonial matters — Accession of a State to the European Union — Divorce proceedings commenced before accession — Temporal scope of Regulation (EC) No 1347/2000))

text:
               23.10.2010

               EN

               Official Journal of the European Union

               C 288/15

      Order of the Court (Seventh Chamber) of 17 June 2010 (reference for a preliminary ruling from the Anotato Dikastirio Kyprou (Republic of Cyprus)) — Giorgos Michalias v Christina A. Ioannou-Michalia
      (Case C-312/09) (1)

      (Article 104(3), second paragraph of the Rules of Procedure - Regulation (EC) No 1347/2000 - Articles 2, 42 and 46 - Judicial cooperation in civil matters - Jurisdiction in matrimonial matters - Accession of a State to the European Union - Divorce proceedings commenced before accession - Temporal scope of Regulation (EC) No 1347/2000))
      (2010/C 288/23)
      Language of the case: Greek

         Referring court

      Anotato Dikastirio Kyprou

         Parties to the main proceedings

         Applicant: Giorgos Michalias

         Defendant: Christina A. Ioannou-Michalia

         Re:

      Reference for a preliminary ruling — Anotato Diastirio Kyprou — Jurisdiction of the courts of a Member State (Cyprus) to interpret and apply Articles 2(1), 42 and 46 of Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (OJ 2000 L 160, p. 19) — Divorce proceedings commenced by the husband before the courts of Cyprus after the entry into force of the regulation but before Cyprus became a Member State — Divorce proceedings begun by the wife after 1 May 2004 before the courts of another Member State (United Kingdom) which was a Member State throughout the relevant period — Both spouses being Cypriot nationals but having their permanent residence in the United Kingdom.

         Operative part

      Council Regulation (EC) No 1347/2000 of 29 May 2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses is not applicable to divorce proceedings brought before the courts of a State before the latter became a Member State of the European Union.

         (1)  OJ C 244 of 10.10.2009.


title: Case T-101/07: Action brought on 26 March 2007 — Dada v OHIM — Dada (DADA)

text:
               9.6.2007

               EN

               Official Journal of the European Union

               C 129/17

         Action brought on 26 March 2007 — Dada v OHIM — Dada (DADA)
   (Case T-101/07)
   (2007/C 129/30)
   Language in which the application was lodged: Italian
   Parties

      Applicant: Dada SpA (Florence, Italy) (represented by: D. Caneva and G. Locurto, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Dada Srl
   Form of order sought

               —

               annul the decision of the First Board of Appeal of OHIM of 12 June 2007 in Case R-1342/2005-1, notified to Dada SpA on 25 June 2007, and consequently allow application for registration No 1 903 111 lodged by Dada SpA also in respect of the services referred to in Class 42 of the Nice Agreement;

               —

               order OHIM to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Dada SpA

      Community trade mark concerned: Figurative mark composed of the word DADA reproduced in capital letters on a rectangular black background surmounted by the image of an atom; registration No 1 903 111 in respect of services in Class 42.

      Proprietor of the mark or sign cited in the opposition proceedings: DADA Srl

      Mark or sign cited in opposition: Italian descriptive mark DADA, in respect of services in Classes 35, 37, 38 and 42, and the company name DADA, used in trade and commerce in Italy to denote the following activities: ‘business management; business administration; office functions, real-estate affairs, telecommunications, education, training, legal services, computer programming’.

      Decision of the Opposition Division: Opposition upheld and refusal of the application for registration for the services at issue.

      Decision of the Board of Appeal: Contested decision upheld and dismissal of the appeal.

      Pleas in law: Insufficient evidence of use of the national mark pleaded by the opponent and absence of likelihood of confusion.


title: Case C-130/11: Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents

text:
               18.6.2011

               EN

               Official Journal of the European Union

               C 179/7

         Reference for a preliminary ruling from Court of Appeal (England & Wales) (Civil Division) (United Kingdom) made on 16 March 2011 — Neurim Pharmaceuticals (1991) Ltd v Comptroller-General of Patents
   (Case C-130/11)
   2011/C 179/11
   Language of the case: English

      Referring court

   Court of Appeal (England & Wales) (Civil Division)

      Parties to the main proceedings

      Applicant: Neurim Pharmaceuticals (1991) Ltd

      Defendant: Comptroller-General of Patents

      Questions referred

               1.

               In interpreting Article 3 of Regulation EEC No. 1768/92 (1) [now Regulation (BC) No. 469/2009 (2)] (‘the SPC Regulation’), when a marketing authorisation (A) has been granted for a medicinal product comprising an active ingredient, is Article 3(d) to be construed as precluding the grant of an SPC based on a later marketing authorisation (B) which is for a different medicinal product comprising the same active ingredient where the limits of the protection conferred by the basic patent do not extend to placing the product the subject of the earlier MA on the market within the meaning of Article 4?

               2.

               If the grant of the SPC is not precluded, does it follow that in interpreting Article 13(1) of the SPC Regulation, ‘the first authorisation to place the product on the market in the Community’ needs to be an authorisation to place a medicinal product on the market within the limits of the protection conferred by the basic patent within the meaning of Article 4?

               3.

               Are the answers to the above questions different if the earlier marketing authorisation has been granted for a veterinary medicinal product for a particular indication and the later marketing authorisation has been granted for a medicinal product for human use for a different indication?

               4.

               Are the answers to the above questions different if the later marketing authorisation required a full application for marketing approval in accordance with Article 8(3) of Directive 2001/83/EC (3) (formerly a full application under Article 4 of Directive 65/65/EEC (4))?

               5.

               Are the answers to the above questions different if the product covered by authorisation (A) to place the corresponding medicinal product on the market is within the scope of protection of a different patent which belongs to a different registered proprietor from the SPC applicant?

      (1)  Council Regulation (EEC) No 1768/92 of 18 June 1992 concerning the creation of a supplementary protection certificate for medicinal products, OJ L 182, p. 1

      (2)  Regulation (EC) No 469/2009 of the European Parliament and of the Council of 6 May 2009 concerning the supplementary protection certificate for medicinal products, OJ L 152, p. 1

      (3)  Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use, OJ L311, p. 67

      (4)  Council Directive 65/65/EEC OF 26 January 1965 on the approximation of provisions laid down by Law, Regulation or Administrative Action relating to proprietary medicinal products, OJ 22, p. 369 (English special edition: Series I Chapter 1965-1966, p. 24)