title: Case T-45/10: Action brought on 28 January 2010 — GEA Group v Commission

text:
               17.4.2010

               EN

               Official Journal of the European Union

               C 100/52

         Action brought on 28 January 2010 — GEA Group v Commission
   (Case T-45/10)
   2010/C 100/78
   Language of the case: German

      Parties

      Applicant: GEA Group (Bochum, Germany) (represented by: A. Kallmayer, I. du Mont and G. Schiffers, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul Article 1(2) of the Decision, in so far as it finds that the applicant infringed Article 101(1) TFEU (formerly Article 81(1) EC) and Article 53(1) of the EEA Agreement;

               —

               annul Article 2 of the decision, in so far as it imposes a fine on the applicant;

               —

               in the alternative, shorten the duration of the infringement allegedly committed by the applicant pursuant to Article 1(2) and reduce the fine imposed on the applicant in Article 2 of the decision;

               —

               order the defendant to pay the costs of the proceedings.

      Pleas in law and main arguments

   The applicant has brought an action against Commission Decision C(2009) 8682 of 11 November 2009 in Case COMP/C38.589 — Heat stabilisers. In the contested decision, the Commission imposed fines on the applicant and other undertakings in respect of infringements of Article 81 EC and — since 1 January 1994 — of Article 53 of the EEA Agreement. According to the Commission, the applicant participated in a series of agreements and/or concerted practices in the market for ESBO/esters in the European Economic Area which consisted in the fixing of prices, the sharing of markets through the allocation of supply quotas, the sharing and allocation of customers as well as the exchange of sensitive commercial information, especially concerning customers, production volumes and quantities supplied. The applicant is jointly and severally liable together with two other undertakings that are legal successors of those undertakings that are alleged to have participated in anti-competitive arrangements.
   In support of its action, the applicant has submitted three pleas in law.
   By way of the first plea in law, the applicant submits that the Commission wrongly assumed that the legal predecessor of the applicant had decisive influence over the relevant undertakings. The applicant submits in this respect that the contested decision is based on wrong findings of fact and a wrong application of the legal provisions regarding imputation, especially the conditions for the assumption that there was decisive influence.
   By way of a second plea in law, the applicant submits that the Commission’s right to impose a fine on the applicants pursuant to Article 25(1) and (5) of Regulation (EC) No 1/2003 (1) had become time-barred. In this respect, the applicant explains that the Commission has not shown that the relevant undertakings committed an infringement after 1996/1997 and in 1999 and 2000, respectively. Further, the applicant submits that the fact that the Commission suspended the procedure because of the proceedings in Joined Cases T-125/03 and T-253/03 Akzo Nobel Chemicals and Akcros Chemicals v Commission did not lead to a suspension of the period of limitations in respect of the applicant.
   Finally, in the third plea, the applicant criticises an infringement of its rights of defence. In this respect, the applicant claims that the Commission suspended the investigation for no reason for more than four years, with the result that the investigation had been running for approximately five years before the applicant was informed and approximately six years before a statement of objections was notified to the applicant. In addition, the Commission failed to investigate the persons involved in the offence and the business unit concerned in order to make a comprehensive finding of the facts of the case. According to the applicant the Commission’s failure deprived it of the opportunity to secure exculpatory evidence and to properly defend its case.

      (1)  Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ 2003 L 1, p.1)


title: Case T-678/14: Order of the General Court of 14 September 2015 — Slovakia v Commission (Action for annulment — Own resources of the European Union — Financial responsibility of the Member States — Obligation to pay the Commission the amount corresponding to a loss of own resources — Letter from the Commission — Act not open to challenge — Inadmissibility)

text:
               16.11.2015

               EN

               Official Journal of the European Union

               C 381/36

         Order of the General Court of 14 September 2015 — Slovakia v Commission
   (Case T-678/14) (1)

   ((Action for annulment - Own resources of the European Union - Financial responsibility of the Member States - Obligation to pay the Commission the amount corresponding to a loss of own resources - Letter from the Commission - Act not open to challenge - Inadmissibility))
   (2015/C 381/41)
   Language of the case: Slovak

      Parties

      Applicant: Slovak Republic (represented by: B. Ricziová, acting as Agent)

      Defendant: European Commission (represented by: L. Grønfeldt, A. Tokár and M. Wasmeier, acting as Agents)

      Re:

   Action for the annulment of the alleged decision of the Directorate-General for Budget of the Commission, contained in letter BUDG/B/03MV D (2014) 2351197 of 15 July 2014, by which the Commission formally demanded the Slovak Republic to make funds available to the Commission for the gross amount of EUR 1 6 02  457,33 (of which 25 % should be deducted to cover expense incurred in collection) corresponding to a loss of traditional own resources, at the latest by the first working day following the 19th day of the second month after the letter was sent.

      Operative part of the order

   The Court:

               1.

               Dismisses the action.

               2.

               Holds that there is no need to rule on the applications for leave to intervene of the Federal Republic of Germany and Romania.

               3.

               Orders the Slovak Republic to bear its own costs and to pay those incurred by the European Commission.

               4.

               Orders the Slovak Republic, the Commission, the Federal Republic of Germany and Romania each to bear their own costs relating to the applications for leave to intervene.

      (1)  OJ C 448, 15.12.2014.


title: Action brought on 22 October 1996 by Jean-Pierre Pierard against the Commission of the European Communities (Case T-169/96)

text:
No C 388/8             EN |                 Official Journal of the European Communities                                    21 . 12 . 96
                                                      COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                               The applicant claims that the Court should :
                    of 21 November 1996
in Case T- 144/95 : Christos Michael v. Commission of the              — annul the decision of the appointing authority not to
                 European Communities 0 )                                   promote the applicant to grade B 1 in the 1995
                                                                            promotion procedure,
(Promotion — Practical guide to the promotions
procedure — Category A officials — List of officials most
deserving of promotion — List of promoted officials —                  — annul, in so far as may be necessary, the decision of
          Decision adversely affecting an official)                         the Advisory Committee on grade B promotions not to
                                                                            include the applicant in the list of officials proposed
                            ( 96/C 388/15 )                                 for promotion to grade B 1 in the 1995 promotion
                                                                            procedure,
               (Language of the case: French)
                                                                       — order the defendant to pay the costs.
In Case T-144/95 : Christos Michael, an official of the
Commission of the European Communities, residing in
Brussels, represented by Lucas Vogel and Beatrice                      Pleas in law and main arguments adduced in support:
Gribomont, of the Brussels Bar, with an address for
service in Luxembourg at the Chambers of Christian                     The applicant, an official in the service of the Council,
Kremer, 8-10 Rue Mathias Hardt, against Commission of                  was promoted to grade B 2 on 1 June 1987. She states,
the European Communities ( Agents: Ana Maria Alves                     first, that she has been suffering for over two years from
Vieira and Alberto Dal Ferro ) — application for                       health problems which have on several occasions
annulment of the implied decision rejecting the complaint              necessitated her hospitalization for very short periods .
lodged by the applicant on 7 December 1994 on the basis
of Article 90 ( 2 ) of the Staff Regulations of Officials of           The list of officials , proposed by the Advisory Committee
the European Communities against a decision of the                     for promotion to grade B 1 , dated 7 December 1995 , does
Commission drawing up the list of officials promoted to                not contain the name of the applicant. She considers that
Grade A 4 in the 1994 promotion procedure — the Court                  the representatives of the administration opposed her
of First Instance ( Fourth Chamber ), composed of K.                   promotion by reason of her absence on sick leave . She
Lenaerts, President, P. Lindh and J. D. Cooke, Judges; J.              pleads infringement of Article 45 of the Staff Regulations,
Palacio Gonzalez, Administrator, for the Registrar, gave a             breach of the opinion of the Joint Committee and
judgment on 21 November 1996 , the operative part of                   contravention of Staff Communication No P 76/93 of
which is as follows :
                                                                       16 July 1993 .
1 . The Commission 's decision not to promote the
    applicant to Grade A 4 in the 1994 promotion                       By her second plea, the applicant alleges infringement of
    procedure is annulled.                                             the obligation imposed by Article 25 of the Staff
                                                                       Regulations to provide a statement of reasons . The
                                                                       applicant maintains that the Council refused to
2 . The Commission is ordered to pay the costs.                        communicate to her the criteria             used to assess the
                                                                       comparative merits of officials eligible for promotion to
0 ) OJ No C 248 , 23 . 9 . 1995 .                                      grade B 2 . The contested decisions are also vitiated by a
                                                                       total absence of any statement of reasons, or at least by a
                                                                       blatantly inadequate statement of reasons, and must
                                                                       consequently be annulled .
Action brought on 22 October 1996 by Catherine Patronis
        against the Council of the European Union
                          ( Case T-168/96 )
                            ( 96/C 388/ 16                             Action brought on 22 October 1996 by Jean-Pierre
                                                                       Pierard against the Commission of the European
                                                                                Communities
               (Language of the case: French)
                                                                                ( Case T- 169/96 )
An action against the Council of the European Union was                                           ( 96/C 388/ 17
brought before the Court of First Instance of the European
Communities on 22 October 1996 by Catherine Patronis,
residing in Brussels, represented by Jean-Noel Louis,                                  (Language of the case: French)
Thierry Demaseure and Ariane Tornel, of the Brussels Bar,
with an address for service in Luxembourg at the offices               An action against the Commission of European
of Fiduciaire Myson Sari, 30 Rue de Cessange .                         Communities was brought before the Court of First
 ---pagebreak--- 21 . 12 . 96          EN                  Official Journal of the European Communities                                 No C 388 /9
Instance of the European Communities on 22 October                   Action brought on 23 October 1996 by 'A' against the
1996 by Jean-Pierre Pierard, residing in Brussels,                             Commission of the European Communities
represented by Nicolas Lhoest, of the Brussels Bar, with an                                  (Case T- 170/96 )
address for service in Luxembourg at the offices of
Fiduciaire Myson Sari, 30 Rue de Cessange .                                                   ( 96/C 388/ 18
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                     An action against the Commission of the European
— annul the decision of the Central Staff Committee
                                                                     Communities was brought before the Court of First
     rejecting the proposals made by Mr Chambellant for              Instance of the European Communities on 23 October
     appointments within the organs set up under the Staff           1996 by 'A', residing at Luxembourg, represented by
     Regulations and administrative bodies,                          Georges Vandersanden and Laure Levi, of the Brussels Bar,
                                                                     with an address for service in Luxembourg at Fiduciaire
— annul, in so far as may be necessary, the express                  Myson Sari, 30 Rue Cessange .
     decision adopted by the Commission rejecting the
     applicant's complaint,                                          The applicant claims that the Court should:
— declare that the 'Rules laying down the composition                — annul the appointing authority's implied decision
     and operation of the Staff Committee' and the                        rejecting the applicant's claim for damages of
     'Transitional arrangements for the representation of                  19 October 1995 and, in so far as necessary, annul the
     staff serving outside the Community' are illegal,                    appointing authority's decision of 9 July 1996 not to
     inasmuch as they do not confer local section status on               uphold the applicant's complaint in its entirety,
     representatives of staff serving outside the Community
     and provide for such staff to have only minimal                 — order the Commission to pay provisional damages in
     representation (3 members) on the Central Staff                      the sum of Bfrs 530 000 for the whole of the damage
     Committee ,                                                          suffered,
— order the Commission to pay the costs .                            — order the Commission to pay the costs.
                                                                     Pleas in law and main arguments adduced in support:
Pleas in law and main arguments adduced in support:
                                                                     The applicant maintains that she suffered material and
By letter of 11 April 1995 , the representative of staff             non-material damage as a result of, first, the decision of
serving outside the Community submitted a request to the             20 July 1995 whereby she was compulsorily transferred
Chairman of the Central Staff Committee on behalf of the             and, secondly, by the delay in drawing up her staff report
24 elected regional representatives concerning the                   for the period 1991 to 1993 .
appointment of a number of officials and other servants
within the various bodies. By letter of 11 October 1995 ,            The applicant points out that her compulsory transfer,
the Chairman of the Central Staff Committee replied that             which forms the subject-matter of an action for annulment
it was not possible to give a positive response to that              which is currently pending (*), is unlawful in various ways
request, in view of the fact that there was no local                 ( infringement of Articles 4 and 29 of the Staff
committee representing staff serving outside the Union. In           Regulations, infringement of Article 7 of the Staff
response to that decision, the applicant lodged a                    Regulations, breach of the duty to have regard for the
complaint which was subsequently expressly rejected.                 welfare of officials, misuse of powers, lack of a proper
                                                                     statement of reasons, infringement of Article 26 of the
In opposition to that decision, the applicant pleads                 Staff Regulations, breach of the right to be heard and
infringement of Article 9 of the Staff Regulations, since            breach of the principle of good management and sound
the specific interests of staff serving outside the                  administration) which constitute as many service-related
Community are not represented or taken into account by               faults committed by the defendant.
the   Staff Committee .    He    further  considers   that the
decision disregards Article 14 of the Rules laying down              The applicant maintains that in consequence of that
the composition and operation of the Staff Committee and             unlawful decision she has suffered non-material damage in
necessarily gives rise to discrimination by comparison with          three respects in that:
other officials who are represented within local sections.
                                                                     — the period within which the decision was both taken
The applicant maintains that the rejection of the request is              and put into effect was particularly short, which
totally contrary to Article 1 of Annex II to the Staff                    resulted in a hurried departure which necessarily
Regulations and, in particular, to the principle of direct                prejudiced her reputation and her honour,
representation for European officials. The applicant
additionally pleads that the Commission has completely               — the decision at issue seriously affected her physical and
failed to discharge its duty to have regard for the welfare               mental health,
and interests of officials and to provide protection and
assistance to staff serving outside the Community.                   — it involved a transfer to a post for which she had
                                                                          neither the experience nor a liking and which does not


title: Case C-356/16: Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium) lodged on 27 June 2016 — Criminal proceedings against Wamo BVBA, Luc Cecile Jozef Van Mol

text:
               12.9.2016

               EN

               Official Journal of the European Union

               C 335/36

         Request for a preliminary ruling from the Nederlandstalige rechtbank van eerste aanleg Brussel (Belgium) lodged on 27 June 2016 — Criminal proceedings against Wamo BVBA, Luc Cecile Jozef Van Mol
   (Case C-356/16)
   (2016/C 335/49)
   Language of the case: Dutch

      Referring court

   Nederlandstalige rechtbank van eerste aanleg Brussel

      Parties to the main proceedings

   Wamo BVBA,
   Luc Cecile Jozef Van Mol

      Question referred

   Should Directive 2005/29/EC (1) of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market be interpreted as precluding a national law which prohibits any natural or legal person from disseminating advertising relating to interventions involving aesthetic surgery or non-surgical aesthetic medicine, as provided by Article 20(1) of the Wet van 23 mei 2013 tot regeling van de vereiste kwalificaties om ingrepen van niet-heelkundige esthetische geneeskunde en esthetische heelkunde uit te voeren en tot regeling van de reclame en informatie betreffende die ingrepen (Law of 23 May 2013 regulating the qualifications required to perform non-surgical aesthetic interventions and aesthetic surgery and regulating the advertising and information relating to such interventions) (B.S., 2 July 2013), inserted by the Wet van 10 [April] 2014 houdende diverse bepalingen inzake gezondheid 2014 (Law of 10 April 2014 containing various provisions relating to health) (B.S., 30 April 2014)?

      (1)  Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market and amending Council Directive 84/450/EEC, Directives 97/7/EC, 98/27/EC and 2002/65/EC of the European Parliament and of the Council and Regulation (EC) No 2006/2004 of the European Parliament and of the Council (OJ 2005 L 149, p. 22).


title: Case F-93/08: Action brought on 12 November 2008 — N v Parliament

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/75

         Action brought on 12 November 2008 — N v Parliament
   (Case F-93/08)
   (2009/C 44/134)
   Language of the case: French
   Parties

      Applicant: N (Brussels, Belgium) (represented by: E. Boigelot, lawyer)

      Defendant: European Parliament
   Subject-matter and description of the proceedings
   Annulment of the applicant's periodical report for the period from 1 January 2007 to 30 April 2007.
   Form of order sought

               —

               Annul the decision of 4 March 2008, which adversely affects the applicant inasmuch as it definitively confirms and approves his periodical report for the period from 1 January 2007 to 30 April 2007;

               —

               Annul the report at issue;

               —

               Annul the decision of the President of Parliament of 25 September 2008 rejecting the applicant's complaint seeking annulment of the contested decision;

               —

               Order the European Parliament to pay the costs.


title: Case C-283/12: Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 6 June 2012 — Serebryanniy vek EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

text:
               11.8.2012

               EN

               Official Journal of the European Union

               C 243/9

         Reference for a preliminary ruling from the Administrativen sad — Varna (Bulgaria), lodged on 6 June 2012 — Serebryanniy vek EOOD v Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite
   (Case C-283/12)
   2012/C 243/16
   Language of the case: Bulgarian

      Referring court

   Administrativen sad — Varna

      Parties to the main proceedings

      Applicant: Serebryanniy vek EOOD

      Defendant: Direktor na Direktsia ‘Obzhalvane i upravlenie na izpalnenieto’ — grad Varna pri Tsentralno upravlenie na Natsionalnata agentsia za prihodite

      Questions referred

               1.

               Can Article 2(1)(c) of Council Directive 2006/112/EC (1) of 28 November 2006 on the common system of value added tax be interpreted as meaning that the acquisition of an intangible asset in exchange for assumption of the costs involved in improving a leased asset item or an asset item the use of which has been assigned in some other way constitutes payment for an improvement service even if the owner of the asset item concerned is not required, under the contract, to pay any valuable consideration?

               2.

               Do Article 2(1)(c) and Article 26 of Directive 2006/112 preclude a national provision under which the supply of a service carried out free of charge and consisting in the improvement of a leased asset item or of an asset item the use of which has been assigned in some other way is in all circumstances to be treated as being taxable? Is it of significance to an answer to this question, in circumstances such as those in the main proceedings, that:

                           —

                           the party supplying the service carried out free of charge has exercised the right to deduct value added tax on the goods and services used in making the improvements and that this has not yet been disallowed by a tax assessment instrument that has become final;

                           —

                           at the date of the tax assessment, the company had not yet begun to make any taxable turnover from the properties and the period of validity of the contracts had nevertheless not yet expired?

               3.

               Do Articles 62 and 63 of Directive 2006/112 preclude a national provision by which the chargeable event for the purposes of the transaction does not occur at the date on which the service is supplied (in this particular case, when improvements are made) but at the time when the asset item is actually returned in its improved condition on the expiry of the contract or on the termination of its use?

               4.

               If the first and second questions are answered in the negative: under which provision of Title VII of Directive 2006/112 is the taxable amount for purposes of value added tax to be determined in the case where a transaction carried out free of charge does not come within the scope of Article 26 of the directive?

      (1)  Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1).


title: Judgment of the Court (Fourth Chamber) of 20 June 2002 in Case C-299/01: Commission of the European Communities v Grand Duchy of Luxembourg (Failure by a Member State to fulfil its obligations — Article 7(2) of Regulation (EEC) No 1612/68 — Freedom of movement for workers — Article 43 EC — Freedom of establishment — Social advantages — Guaranteed minimum income)

text:
10.8.2002               EN                       Official Journal of the European Communities                                            C 191/9
      new plants and 1 December 1996 as regards existing plants,            1.    Declares that, by maintaining a condition relating to duration
      the French Republic has failed to fulfil its obligations under              of residence in the territory of Luxembourg for the grant of the
      Article 4(1) of Directive 89/369 and Articles 2(a) and 4 of                 guaranteed minimum income provided for by its legislation, the
      Directive 89/429;                                                           Grand Duchy of Luxembourg has failed to fulfil its obligations
                                                                                under Article 7(2) of Regulation (EEC) No 1612/68 of the
2.    Orders the French Republic to pay the costs.                                Council of 15 October 1968 on freedom of movement for
                                                                                workers within the Community and Article 43 EC;
                                                                            2.    Orders the Grand Duchy of Luxembourg to pay the costs.
(1) OJ C 108 of 7.4.2001.
                                                                            (1) OJ C 289 of 13.10.2001.
                 JUDGMENT OF THE COURT
                                                                                ORDER OF THE COURT
                        (Fourth Chamber)
                                                                                (Fifth Chamber)
                          of 20 June 2002
                                                                                of 5 June 2002
in Case C-299/01: Commission of the European Communi-
            ties v Grand Duchy of Luxembourg (1)                            in Case C-204/00 P: Aalborg Portland A/S v Commission
                                                                                of the European Communities (1)
(Failure by a Member State to fulfil its obligations —                      (Appeals — Competition — Cement — Article 85(1) of the
Article 7(2) of Regulation (EEC) No 1612/68 — Freedom of                    EC Treaty (now, Article 81(1) EC) — Appeal in part
movement for workers — Article 43 EC — Freedom of                                                  manifestly unfounded)
establishment — Social advantages — Guaranteed mini-
                            mum income)
                                                                                (2002/C 191/15)
                          (2002/C 191/14)
                                                                                (Language of the case: Danish)
                    (Language of the case: French)                          (Provisional translation; the definitive translation will be published
                                                                                in the European Court Reports)
(Provisional translation; the definitive translation will be published
                   in the European Court Reports)
                                                                            In Case C-204/00 P: Aalborg Portland A/S, established in
                                                                            Aalborg (Denmark), represented by K. Dyekjær-Hansen and
                                                                            K. Høegh, lawyers — appeal against the judgment of the
In Case C-299/01, Commission of the European Communities                    Court of First Instance of the European Communities, Fourth
(Agent: H. Michard) v Grand Duchy of Luxembourg (Agent:                     Chamber, Extended Composition, of 15 March 2000 in Joined
N. Mackel): Application for a declaration that, by maintaining              Cases T-25/95, T-36/95, T-30/95 to T-32/95, T-34/95 to
a condition relating to duration of residence in the territory of           T-39/95, T-42/95 to T-46/95, T-48/95, T-50/95 to T-65/95,
Luxembourg for the grant of a guaranteed minimum income,                    T-68/95 to T-71/95, T-87/95 to T-88/95 and T-103/95 to
the Grand Duchy of Luxembourg has failed to fulfil its                      T-104/95 Cimenteries CBR and Others v Commission [2000]
obligations under Article 7(2) of Regulation (EEC) No 1612/                 ECR II-491, seeking to have that judgment partially set aside,
68 of the Council of 15 October 1968 on freedom of                          the other party to the proceedings being Commission of
movement for workers within the Community (OJ, English                      the European Communities (Agents: R. Lyal, assisted by
Special Edition 1968 (II), p. 475) and Article 43 EC, the Court             H.P. Hartvig) &mdash the Court (Fifth Chamber), composed of
(Fourth Chamber), composed of: S. von Bahr, President of the                P. Jann, President of the Chamber, D.A.O. Edward (Rappor-
Chamber, D.A.O. Edward (Rapporteur) and C.W.A. Timmer-                      teur), A. La Pergola, M. Wathelet and A. Rosas, Judges; D. Ruiz-
mans, Judges; D. Ruiz-Jarabo Colomer, Advocate General;                     Jarabo Colomer, Advocate General; R. Grass, Registrar, made
R. Grass, Registrar, has given a judgment on 20 June 2002, in               an order on 5 June 2002, the operative part of which is as
which it:                                                                   follows:


title: Case T-573/11: Judgment of the General Court of 3 December 2013 — JAS v Commission (Customs union — Imports of denim jeans — Fraud — Recovery a posteriori of the import duties — Article 13 of Regulation (EEC) No 1430/79 — Article 239 of the Customs Code — Application for remission of import duties — Particular case — Equity clause — Commission Decision)

text:
               25.1.2014

               EN

               Official Journal of the European Union

               C 24/19

         Judgment of the General Court of 3 December 2013 — JAS v Commission
   (Case T-573/11) (1)

   (Customs union - Imports of denim jeans - Fraud - Recovery a posteriori of the import duties - Article 13 of Regulation (EEC) No 1430/79 - Article 239 of the Customs Code - Application for remission of import duties - Particular case - Equity clause - Commission Decision)
   2014/C 24/33
   Language of the case: French

      Parties

      Applicant: JAS Jet Air Service France (JAS) (Mesnil-Amelot, France) (represented by: T. Gallois and E. Dereviankine, lawyers)

      Defendant: European Commission (represented by: B.-R. Killmann, L. Keppenne and C. Soulay, acting as Agents)

      Re:

   Application for annulment of the Commission Decision of 5 August 2011 finding that the remission of import duties is not justified in a particular case (Case REM 01/2008).

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Jet Air Services France (JAS) to bear its own costs and to pay those incurred by the European Commission.

      (1)  OJ C 25, 28.1.2012.


title: Case C-417/08: Judgment of the Court (Fifth Chamber) of 18 June 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland (Failure of a Member State to fulfil obligations — Directive 2004/35/EC — Environmental liability with regard to the prevention and remedying of environmental damage — Failure to transpose)

text:
               1.8.2009

               EN

               Official Journal of the European Union

               C 180/22

         Judgment of the Court (Fifth Chamber) of 18 June 2009 — Commission of the European Communities v United Kingdom of Great Britain and Northern Ireland
   (Case C-417/08) (1)

   (Failure of a Member State to fulfil obligations - Directive 2004/35/EC - Environmental liability with regard to the prevention and remedying of environmental damage - Failure to transpose)
   2009/C 180/36
   Language of the case: English

      Parties

      Applicant: Commission of the European Communities (represented by: A.-A. Gilly and U. Wölker, Agents)

      Defendant: United Kingdom of Great Britain and Northern Ireland (represented by: S. Ossowski, Agent)

      Re:

   Failure of a Member State to fulfil obligations — Failure to take, within the prescribed period, the necessary measures to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage (OJ 2004 L 143, p. 56).

      Operative part of the judgment

   The Court:

               1.

               Declares that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on environmental liability with regard to the prevention and remedying of environmental damage, the United Kingdom of Great Britain and Northern Ireland has failed to fulfil its obligations under Article 19 of that directive.

               2.

               Orders the United Kingdom of Great Britain and Northern Ireland to pay the costs.

      (1)  OJ C 301, 22.11.2008.


title: Case T-74/05: Order of the Court of First Instance of  3 April 2006  — The International Institute for the Urban Environment v Commission (Research and technological development programme entitled  Promotion of innovation and encouragement of SME participation  — Community financing — Articles 230 EC and 238 EC — Arbitration clause — Action for annulment — Admissibility)

text:
               17.6.2006

               EN

               Official Journal of the European Union

               C 143/30

         Order of the Court of First Instance of 3 April 2006 — The International Institute for the Urban Environment v Commission
   (Case T-74/05) (1)

   (Research and technological development programme entitled ‘Promotion of innovation and encouragement of SME participation’ - Community financing - Articles 230 EC and 238 EC - Arbitration clause - Action for annulment - Admissibility)
   (2006/C 143/61)
   Language of the case: English
   Parties

      Applicant: The International Institute for the Urban Environment (Delft, Netherlands) (represented by: P. ter Burg, lawyer)

      Defendant: Commission of the European Communities (represented by: L. Ström van Lier, Agent, assisted by J. Stuyck, lawyer)
   Re:
   Action brought under Articles 230 EC and 238 EC relating to the remuneration claimed by the applicant in connection with the performance of the two contracts IPS-1999-00016 and IPS-1999-00022, concluded in the framework of the research and technological development programme entitled ‘Promotion of innovation and encouragement of SME participation’
   Operative part of the order

               1.

               The application is dismissed as inadmissible.

               2.

               The applicant shall pay the costs.

      (1)  OJ C 106 of 30.04.2005.


title: Case C-131/09: Reference for a preliminary ruling from the Conseil d’État (Belgium) lodged on 6 April 2009 — Philippe Daras v Région wallonne

text:
               4.7.2009

               EN

               Official Journal of the European Union

               C 153/20

         Reference for a preliminary ruling from the Conseil d’État (Belgium) lodged on 6 April 2009 — Philippe Daras v Région wallonne
   (Case C-131/09)
   2009/C 153/38
   Language of the case: French

      Referring court

   Conseil d’État

      Parties to the main proceedings

      Applicant: Philippe Daras

      Defendant: Région wallonne

      Questions referred

               1.

               Can Article 1(5) of Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (1) be interpreted as excluding from its application legislation — such as the Decree of the Walloon Region on certain consents for which there are overriding reasons in the general interest of 17 July 2008 — which merely states that ‘overriding reasons in the general interest have been established’ for the grant of town planning consents, environmental consents and combined town planning and environmental consents relating to the acts and works listed therein and which ‘ratifies’ consents in respect of which it is stated that ‘overriding reasons in the general interest have been established’?

               2.

                           (a)

                           Do Articles 1, 5, 6, 7, 8 and 10a of Directive 85/337/EEC, as amended by Council Directive No 97/11/EC (2) and Directive No 2003/35/EC (3) of the European Parliament and of the Council, preclude a legal regime in which the right to implement a project subject to an environmental impact assessment is conferred by a legislative act against which no review procedure is available before a court of law or another independent and impartial body established by law which makes it possible to challenge, both in terms of the substance and the procedure followed, the decision granting the right to implement the project?

                           (b)

                           Must Article 9 of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, concluded on 25 June 1998 and approved by the European Community by Council Decision 2005/370/EC of 17 February 2005, (4) be interpreted as requiring the Member States to provide for the possibility of seeking a review before a court of law or another independent and impartial body established by law in order to be able to challenge the legality, in relation to any issue of substance or procedure relating to the substantive or procedural rules governing the authorisation of projects subject to an impact assessment, of decisions, acts or omissions subject to the provisions of Article 6?

                           (c)

                           In the light of the Aarhus Convention on access to information, public participation in decision-making and access to justice in environmental matters, concluded on 25 June 1998 and approved by the European Community by Council Decision 2005/370/EC of 17 February 2005, must Article 10a of Directive 85/337/EEC, as amended by Directive 2003/35/EC, be interpreted as requiring the Member States to provide for the possibility of seeking a review before a court of law or another independent and impartial body established by law in order to be able to challenge the legality of decisions, acts or omissions in relation to any issue of substance or procedure relating to the substantive or procedural rules governing the authorisation of projects subject to an impact assessment?

      (1)  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ 1985 L 175, p. 40).

      (2)  Council Directive 97/11/EC of 3 March 1997 amending Directive 85/337/EEC on the assessment of the effects of certain public and private projects on the environment (OJ 1997 L 73, p. 5).

      (3)  Directive 2003/35/EC of the European Parliament and of the Council of 26 May 2003 providing for public participation in respect of the drawing up of certain plans and programmes relating to the environment and amending with regard to public participation and access to justice Council Directives 85/337/EEC and 96/61/EC — Statement by the Commission (OJ 2003 L 156, p. 17).

      (4)  Council Decision 2005/370/EC of 17 February 2005 on the conclusion, on behalf of the European Community, of the Convention on access to information, public participation in decision-making and access to justice in environmental matters (OJ 2005 L 124, p. 1).


title: Case C-259/02: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Chancery Division, by order of that court dated 17 June 2002, in the case of La Mer Technology Inc. against Laboratoires Goemar S.A.

text:
C 219/6               EN                    Official Journal of the European Communities                                     14.9.2002
Reference for a preliminary ruling by the Tribunale                          legislation, subjecting undertakings active on the Italian
Amministrativo Regionale per il Lazio by judgment of                         market to conditions more oppressive than those pro-
that Court of 23 January 2002 in the cases of Telecom                        vided for by those provisions of Community law in the
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom                       other States of the Union?
(C-251/02), Telecom Italia SpA, intervener: Telemar
(C-252/02), Omnitel Pronto Italia SpA (C-253/02), and
WIND Telecomunicazioni SpA (C-256/02) against Mini-                    (1 ) OJ L 117 of 7.5.1997, p. 15.
stero del Tesoro, del Bilancio e della Programmazione
Econimica (now Ministero dell’ Economia e delle Finanze)
              and Ministero delle Comunicazioni
(Cases C-250/02, C-251/02, C-252/02, C-253/02 and C-256/
                               02)
                        (2002/C 219/09)                                Reference for a preliminary ruling by the High Court of
                                                                       Justice (England & Wales), Chancery Division, by order
                                                                       of that court dated 17 June 2002, in the case of La Mer
                                                                            Technology Inc. against Laboratoires Goemar S.A.
Reference has been made to the Court of Justice of the
European Communities by order of the Tribunale Amministra-                                      (Case C-259/02)
tivo Regionale per il Lazio (Regional Administrative Court for
Lazio) of 23 January 2002, received at the Court Registry on
                                                                                (2002/C 219/10)
10 July 2002, for a preliminary ruling in the cases of Telecom
Italia Mobile (C-250/02), BLU SpA, intervener: Albacom
(C-251/02), Telecom Italia SpA, intervener: Telemar (C-252/
02), Omnitel Pronto Italia SpA (C-253/02), and WIND Teleco-
municazioni SpA (C-256/02) against Ministero del Tesoro, del
                                                                       Reference has been made to the Court of Justice of the
Bilancio e della Programmazione Econimica (now Ministero
                                                                       European Communities by an order of the High Court of
dell’ Economia e delle Finanze) and Ministero delle Comunica-
                                                                       Justice (England & Wales), Chancery Division, dated 17 June
zioni (Ministry of the Treasury, Budget and Economic Planning
                                                                       2002, which was received at the Court Registry on 15 July
(now Ministry of Economy and Finance) and Ministry of
                                                                       2002, for a preliminary ruling in the case of La Mer Technology
Communications) on the following questions:
                                                                       Inc. and Laboratoires Goemar S.A. on the following questions:
1)    Do Articles 6 and 11 of Directive 97/13/EC (1) of the            1.    What factors should be taken into account when deciding
      European Parliament and of the Council of 10 April 1997                whether a mark has been ‘put to genuine use’ in a Member
      on a common framework for general authorizations and                   State within the meaning of Articles 10(1) and 12(1) of
      individual licences in the field of telecommunications                 the First Council Directive 89/104 ( 1) of 21 December
      services permit Member States to require only those                    1988?
      undertakings which hold a licence or authorisation to
      carry on telecommunications activities to make financial
      payments, whatever they may be called, other than and            In particular:
      in addition to those provided for by that Directive, and
      are such payments in keeping with the principle of non-
      discrimination?                                                  2.    Should the extent of use of the mark in relation to the
                                                                             goods or services for which the mark is registered in the
                                                                             Member State be taken into account?
2)    Do Articles 6 and 11 of Directive 97/13/EC permit
      Member States to introduce direct or indirect taxes or
      other charges of a fiscal nature on activities consisting        3.    Is any amount of use however small, sufficient if it was
      of installing and supplying public telecommunications                  made with no purpose other than commercially dealing
      networks, the supply to the public of voice telephony                  in the goods or providing the service concerned?
      services and mobile and personal communication ser-
      vices, determined in variable percentage terms and having        4.    If the answer to the foregoing question is ‘no’ what is the
      equivalent effect to those prohibited by the Community                 test for determining how much use is sufficient, and in
      legislation?                                                           particular does that test include a consideration of nature
                                                                             and size of the business of the registered proprietor?
3)    May Articles 2, 3 and 95 of the Treaty and Article 12 of
      Directive 97/13/EC be interpreted to mean that it is not         5.    Is token or sham use to be disregarded, and in particular
      permissible for the Member States to introduce financial               is use whose sole or predominant purpose is defeating a
      charges contrary to the provisions of the harmonising                  potential claim for revocation to be disregarded?
 ---pagebreak--- 14.9.2002               EN                   Official Journal of the European Communities                                       C 219/7
6.     What types of use can be considered, and in particular is        Pleas in law and main arguments
       it necessary to show that the mark has been used in the
       course of trade in the Member State concerned and in
       further particular would importation by a single customer        Article 249 EC, which provides that a directive is to be binding
       into that Member State be sufficient?                            as to the result to be achieved upon each Member State,
                                                                        implies the obligation upon each Member State to observe the
                                                                        time-limits for implementation laid down in directives. That
7.     Is it necessary to disregard use occurring after the filing      time-limit expired on 24 October 1998 without the Italian
       of the application for revocation even for the purpose of        Republic having issued the provisions necessary to comply
       testing whether use during the relevant period was               with Article 5 of the directive referred to in the Commission’s
       genuine?                                                         claims.
                                                                        (1 ) OJ 1998 L 24, p. 1.
( 1) To approximate the laws of the Member States relating to trade
     marks (OJ L 40, 11.2.1989, p. 1).
                                                                        Action brought on 23 July 2002 by the Commission of
                                                                        the European Communities against the Grand Duchy of
                                                                                Luxembourg
                                                                                (Case C-268/02)
Action brought on 19 July 2002 by the Commission of                                              (2002/C 219/12)
   the European Communities against the Italian Republic
                                                                        An action against the Grand Duchy of Luxembourg was
                          (Case C-267/02)                               brought before the Court of Justice of the European Communi-
                                                                        ties on 23 July 2002 by the Commission of the European
                                                                        Communities, represented by D. Martin, acting as Agent.
                          (2002/C 219/11)
                                                                        The applicant claims that the Court should:
                                                                        —     Declare that, by failing to adopt and bring into force
                                                                              within the prescribed period the laws, regulations and
                                                                              administrative provisions necessary to comply with
An action against the Italian Republic was brought before the                 Council Directive 98/24/EC of 7 April 1998 on the
Court of Justice of the European Communities on 19 July                       protection of the health and safety of workers from the
2002 by the Commission of the European Communities,                           risks related to chemical agents at work (fourteenth
represented by M. Shotter and C. Loggi, acting as Agents.                     individual Directive within the meaning of Article 16(1)
                                                                              of Directive 89/391/EEC) ( 1), the Grand Duchy of Luxem-
                                                                              bourg has failed to fulfil its obligations under that
                                                                              directive; and
The applicant claims that the Court should:
                                                                        —     Order the Grand Duchy of Luxembourg to pay the costs.
1.     Declare that, by not adopting within the prescribed time-
       limit, or in any event not notifying the laws, regulations
       and administrative provisions necessary to comply with           Pleas in law and main arguments
       Article 5 of Directive 97/66/EC ( 1) of the European
       Parliament and of the Council of 15 December 1997
       concerning the processing of personal data and the               The period prescribed for transposition expired on 5 May
       protection of privacy in the telecommunications sector,          2001.
       the Italian Republic has failed to fulfil its obligations
       under Articles 5 and 15 of that directive;
                                                                        (1 ) OJ 1998 L 131, p. 11.
2.     Order the Italian Republic to pay the costs.


title: Case T-89/11: Judgment of the General Court of 9 July 2015 — Nanu-Nana Joachim Hoepp v OHIM — Vincci Hoteles (NANU) (Community trade mark — Opposition proceedings — Application for Community word mark NANU — Earlier Community word mark NAMMU — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               24.8.2015

               EN

               Official Journal of the European Union

               C 279/29

         Judgment of the General Court of 9 July 2015 — Nanu-Nana Joachim Hoepp v OHIM — Vincci Hoteles (NANU)
   (Case T-89/11) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark NANU - Earlier Community word mark NAMMU - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2015/C 279/35)
   Language of the case: English

      Parties

      Applicant: Nanu-Nana Joachim Hoepp GmbH & Co. KG (Bremen, Germany) (represented by: A. Nordemann and T. Boddien, lawyers)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Vincci Hoteles, SA (Alcobendas, Spain)

      Re:

   Action brought against the decision of the First Board of Appeal of OHIM of 25 November 2010 (Case R 641/2010-1), relating to opposition proceedings between Vincci Hoteles, SA and Nanu-Nana Joachim Hoepp GmbH & Co. KG.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Nanu-Nana Joachim Hoepp GmbH & Co. KG to pay the costs.

      (1)  OJ C 113, 9.4.2011.


title: Case C-330/14: Request for a preliminary ruling from the Gyulai Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 July 2014  — Szemerey Gergely v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

text:
               8.9.2014

               EN

               Official Journal of the European Union

               C 303/29

         Request for a preliminary ruling from the Gyulai Közigazgatási és Munkaügyi Bíróság (Hungary) lodged on 8 July 2014 — Szemerey Gergely v Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve
   (Case C-330/14)
   2014/C 303/37
   Language of the case: Hungarian

      Referring court

   Gyulai Közigazgatási és Munkaügyi Bíróság

      Parties to the main proceedings

      Applicant: Gergely Szemerey

      Defendant: Mezőgazdasági és Vidékfejlesztési Hivatal Központi Szerve

      Questions referred

               1.

               Must the principle of flexibility and of the possibility of amending [recitals] 20 and 27 in the preamble to Regulation (EC) No 796/2004 (1) and [recitals] 18, 23 and 26 in the preamble to Regulation (EC) No 1122/2009 (2) be interpreted as precluding a national provision, under which, in the case of the cultivation of a rare plant species, the certificate relating to the rare plant must be attached to the application for payment, having regard to the administrative practice, in accordance with which it was possible to apply for the certificate only before applying for payment between 2 and 15 April 2010, and it was possible to attach it only at the same time as the presentation of the single application, and the provision did not make it possible to remedy the defect in the application constituted by the failure to produce a certificate?

               2.

               Is this arrangement consistent with the obligation of a Member State not to undermine the objectives of the Common Agriculture Policy, or can it be said that the effective exercise of the right to aid under EU law of farmers who grow rare plants became impossible or excessively difficult and unpredictable in 2010 when the legislation was amended (amendment of Paragraph 43(6) of Regulation No 61/2009 (of 14 May 2009) of the Ministry of Agriculture and Rural Development, made law by Regulation No 31/2010 (of 30 March 2010) of the Ministry of Agriculture and Rural Development)?

               3.

               Do [recital] 57 in the preamble to Regulation (EC) No 796/2004 or [recital] 75 in the preamble to Regulation (EC) No 1122/2009 and, in particular, the principal of proportionality preclude an administrative practice which, in the event that there is no certificate relating to the rare plant, and without taking into consideration intention, negligence or the circumstances of the case, imposes a penalty for over-declaration in respect of the entire application, when the application for payment, in respect of the entire plot of land, otherwise complies with the requirements for granting the aid, and the farmer grows the declared plant in the area declared?

               4.

               Are the grounds for exemption contained in [recitals] 67 or 71 in the preamble to Regulation (EC) No 796/2004 or in [recital] 75 in the preamble to Regulation (EC) No 1122/2009 applicable in the event that the farmer claims that a prejudicial or inappropriate administrative practice amounts to exceptional circumstances, and seeks to demonstrate that the practice of the administrative body was wholly or partly the cause of his error?

               5.

               Can the accepted declaration of force majeure submitted by the farmer in relation to the total loss of the crop (sowing) be regarded as correct information for the purposes of [recital] 67 in the preamble to Regulation (EC) No 796/2004 and [recital] 93 in the preamble to Regulation (EC) No 1122/2009, which would exonerate the farmer in respect of the failure to submit the certificate relating to the rare plant and thereby entail exemption from the penalties relating to the entire application?

      (1)  Commission Regulation (EC) No 796/2004 of 21 April 2004 laying down detailed rules for the implementation of cross-compliance, modulation and the integrated administration and control system provided for in of Council Regulation (EC) No 1782/2003 establishing common rules for direct support schemes under the common agricultural policy and establishing certain support schemes for farmers; OJ 2004 L 141, p. 18.

      (2)  Commission Regulation (EC) No 1122/2009 of 30 November 2009 laying down detailed rules for the implementation of Council Regulation (EC) No 73/2009 as regards cross-compliance, modulation and the integrated administration and control system, under the direct support schemes for farmers provided for that Regulation, as well as for the implementation of Council Regulation (EC) No 1234/2007 as regards cross-compliance under the support scheme provided for the wine sector; OJ 2009 L 316, p. 65.


title: Case T-30/16: Judgment of the General Court of 15 February 2017 — M. I. Industries v EUIPO — Natural Instinct (Natural Instinct Dog and Cat food as nature intended) (EU trade mark — Opposition proceedings — Application for EU figurative mark Natural Instinct Dog and Cat food as nature intended — Earlier EU word marks INSTINCT and NATURE’S VARIETY — Genuine use of the earlier mark — Nature of the use — Article 42(2) of Regulation No 207/2009 — Rule 22(3) and (4) of Regulation (EC) No 2868/95)

text:
               27.3.2017

               EN

               Official Journal of the European Union

               C 95/11

         Judgment of the General Court of 15 February 2017 — M. I. Industries v EUIPO — Natural Instinct (Natural Instinct Dog and Cat food as nature intended)
   (Case T-30/16) (1)

   ((EU trade mark - Opposition proceedings - Application for EU figurative mark Natural Instinct Dog and Cat food as nature intended - Earlier EU word marks INSTINCT and NATURE’S VARIETY - Genuine use of the earlier mark - Nature of the use - Article 42(2) of Regulation No 207/2009 - Rule 22(3) and (4) of Regulation (EC) No 2868/95))
   (2017/C 095/19)
   Language of the case: English

      Parties

      Applicant: M. I. Industries, Inc. (Lincoln, Nebraska, United States) (represented by: initially by T. Elias, Barrister, and B. Cookson, Solicitor, and subsequently by M. Montañá Mora, lawyer)

      Defendant: European Union Intellectual Property Office (represented by: E. Zaera Cuadrado, acting as Agent)

      Other party to the proceedings before the Board of Appeal of EUIPO, intervening before the General Court: Natural Instinct Ltd (Camberley, United Kingdom) (represented by: C. Spintig, S. Pietzcker, lawyers, and B. Brandreth, Barrister)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of EUIPO of 26 November 2015 (Case R 2944/2014-5), relating to opposition proceedings between M. I. Industries and Natural Instinct.

      Operative part of the judgment

   The Court:

               1.

               Annuls the decision of the Fifth Board of Appeal of the European Union Intellectual Property Office (EUIPO) of 26 November 2015 (Case R 2944/2014-5) in so far as it concludes that there is no genuine use of the earlier word mark INSTINCT;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders EUIPO to bear, in addition to its own costs, half of the costs incurred by M. I. Industries Inc.;

               4.

               Orders M. I. Industries to bear half of its own costs;

               5.

               Orders Natural Instinct Ltd to bear its own costs.

      (1)  OJ C 106, 21.3.2016.


title: Case C-384/06: Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid

text:
               16.12.2006

               EN

               Official Journal of the European Union

               C 310/2

         Reference for a preliminary ruling from the Raad van State (Netherlands) lodged on 18 September 2006 — Gemeente Rotterdam v Minister van Sociale Zaken en Werkgelegenheid
   (Case C-384/06)
   (2006/C 310/04)
   Language of the case: Dutch
   Referring court
   Raad van State (Netherlands)
   Parties to the main proceedings

      Applicant: Gemeente Rotterdam

      Defendant: Minister van Sociale Zaken en Werkgelegenheid
   Question(s) referred

               1.

                           a)

                           Can the Member State or one of its authorities derive a competence directly from a regulation — without a basis in national law?

                           b)

                           If so, does Article 23(1) of Council Regulation (EEC) No 4253/88 (1) of 19 December 1988, laying down provisions for implementing Regulation (EEC) No 2052/88 as regards coordination of the activities of the different Structural Funds between themselves and with the operations of the European Investment Bank and the other existing financial instruments, as amended by Council Regulation No 2082/93 of 20 July 1993 ('the coordination regulation') confer authority to withdraw an order on the granting of a subsidy and to claim back the sum paid, on the basis that Article 23 of the coordination regulation requires the Member State to do that in so far as irregularities or negligence within the meaning of the said Article 23 are involved?

               2.

               If not, is a national legal provision like Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law), on the basis of which the authority may withdraw the determination of the subsidy or amend it to the detriment of the beneficiary if (a) there are facts or circumstances of which it could not reasonably have been aware at the time the subsidy was determined and which would have resulted in a lower subsidy being determined than that in the order on the granting of the subsidy, (b) the determination of the subsidy was made in error and the beneficiary knew this or should have known it, or (c) after the determination of the subsidy, the beneficiary has not fulfilled the obligations attached thereto, to be interpreted, pursuant to Article 10 EC in conjunction with Article 249 EC, in a manner that conforms to the regulation?

               3.

               If so, is that interpretation limited by general legal principles which form part of Community law, in particular the principles of legal certainty and the protection of legitimate expectations?

               4.

               If the answer to the third question is in the affirmative, the question arises in relation to that limitation whether the national principles of legal certainty and the protection of legitimate expectations which underlie Article 4.49.1 of the Algemene Wet Bestuursrecht (General Law on Administrative Law) can be more far-reaching than general principles of Community law, especially the principles of legal certainty and the protection of legitimate expectations which are to be complied with when applying the coordination regulation.

               5.

               Is it of any relevance, having regard to Article 10 EC when applying the Community law principles of legal certainty and the protection of legitimate expectations, that the beneficiary is a legal person under public law?

      (1)  OJ L 374, p. 1.


title: Case C-414/16: Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 July 2016 — Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.

text:
               14.11.2016

               EN

               Official Journal of the European Union

               C 419/27

         Request for a preliminary ruling from the Bundesarbeitsgericht (Germany) lodged on 27 July 2016 — Vera Egenberger v Evangelisches Werk für Diakonie und Entwicklung e.V.
   (Case C-414/16)
   (2016/C 419/36)
   Language of the case: German

      Referring court

   Bundesarbeitsgericht

      Parties to the main proceedings

      Applicant: Vera Egenberger

      Defendant: Evangelisches Werk für Diakonie und Entwicklung e.V.

      Questions referred

               1.

               Is Article 4(2) of Directive 2000/78/EC (1) to be interpreted as meaning that an employer, such as the defendant in the present case, or the church on its behalf, may itself authoritatively determine whether adherence by an applicant to a specified religion, by reason of the nature of the activities or of the context in which they are carried out, constitutes a genuine, legitimate and justified occupational requirement, having regard to the employer/church’s ethos?

               2.

               If the first question is answered in the negative:
               In a case such as the present, is it necessary to disapply a provision of national law — such as, in the present case, the first alternative of Paragraph 9(1) of the AGG (Allgemeines Gleichbehandlungsgesetz, General Law on equal treatment) — which provides that a difference of treatment on the ground of religion in the context of employment with religious bodies and the organisations adhering to them is also lawful where adherence to a specific religion, in accordance with the self-conception of the religious body, having regard to its right of self-determination, constitutes a justified occupational requirement?

               3.

               If the first question is answered in the negative, further:
               What requirements are there as regards the nature of the activities or of the context in which they are carried out, as genuine, legitimate and justified occupational requirements, having regard to the organisation’s ethos, in accordance with Article 4(2) of Directive 2000/78/EC?

      (1)  Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, OJ 2000 L 303, p. 16.


title: Case C-502/07: Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Republic of Poland) — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy (VAT — Irregularities in the tax declaration submitted by a taxable person — Additional tax)

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/4

         Judgment of the Court (Second Chamber) of 15 January 2009 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny — Republic of Poland) — K-1 sp. z o.o. v Dyrektor Izby Skarbowej w Bydgoszczy
   (Case C-502/07) (1)

   (VAT - Irregularities in the tax declaration submitted by a taxable person - Additional tax)
   (2009/C 55/05)
   Language of the case: Polish
   Referring court
   Naczelny Sąd Administracyjny
   Parties to the main proceedings

      Applicant: K-1 sp. z o.o.

      Defendant: Dyrektor Izby Skarbowej w Bydgoszczy
   Re:
   Reference for a preliminary ruling — Naczelny Sąd Administracyjny (Poland) — Interpretation of paragraphs one and two of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes (OJ, English Special Edition 1967, p. 14) and Articles 2, 10(1)(a), 10(2), 27(1) and 33 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 (OJ 1977 L 145, p. 1) — National legislation imposing an additional tax liability where irregularities are established in the taxable person's VAT declaration
   Operative part of the judgment

               1.

               The common system of value added tax, as defined in the first and second paragraphs of Article 2 of First Council Directive 67/227/EEC of 11 April 1967 on the harmonisation of legislation of Member States concerning turnover taxes and in Articles 2 and 10(1)(a) and (2) 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, as amended by Council Directive 2004/66/EC of 26 April 2004, does not preclude a Member State from providing in its legislation for an administrative penalty which may be imposed on persons liable to value added tax, such as the ‘additional tax’ provided for in Article 109(5) and (6) of the Ustawa o podatku od towarów i usług (Law on the taxation of goods and services) of 11 March 2004.

               2.

               Provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004 do not constitute ‘special measures for derogation’ for preventing certain types of tax evasion or avoidance within the meaning of Article 27(1) of Sixth Directive 77/388, as amended.

               3.

               Article 33 of Sixth Directive 77/388, as amended, does not preclude the maintenance of provisions such as those in Article 109(5) and (6) of the Law on the taxation of goods and services of 11 March 2004.

      (1)  OJ C 22, 26.1.2008.


title: Case T-110/12 R: Order of the President of the General Court of 11 March 2013 — Iranian Offshore Engineering & Construction v Council (Interim relief — Common foreign and security policy — Restrictive measures against Iran — Freezing of funds and economic resources — Application for interim measures — No urgency — Weighing up of the interests involved)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/18

         Order of the President of the General Court of 11 March 2013 — Iranian Offshore Engineering & Construction v Council
   (Case T-110/12 R)
   (Interim relief - Common foreign and security policy - Restrictive measures against Iran - Freezing of funds and economic resources - Application for interim measures - No urgency - Weighing up of the interests involved)
   2013/C 147/33
   Language of the case: Spanish

      Parties

      Applicant: Iranian Offshore Engineering & Construction Co. (Tehran, Iran) (represented by: J. Viñals Camallonga, L. Barriola Urruticoechea and J. Iriarte Ángel, lawyers)

      Defendant: Council of the European Union (represented by: P. Plaza García and V. Piessevaux, Agents)

      Re:

   Application for suspension of the operation of (i) Council Decision 2011/783/CFSP of 1 December 2011 amending Decision 2010/413/CFSP concerning restrictive measures against Iran (OJ 2011 L 319, p. 71) in so far as the applicant’s name was listed in Annex II to Council Decision 2010/413/CFSP of 26 July 2010 concerning restrictive measures against Iran and repealing Common Position 2007/140/CFSP (OJ 2010 L 195, p. 39) and (ii) in so far as they concern the applicant, Council Implementing Regulation (EU) No 1245/2011 of 1 December 2011 implementing Regulation (EU) No 961/2010 on restrictive measures against Iran (OJ 2011 L 319, p. 11) and Council Regulation (EU) No 267/2012 of 23 March 2012 concerning restrictive measures against Iran and repealing Regulation (EU) No 961/2010 (OJ 2012 L 88, p. 1).

      Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               The costs are reserved.


title: Case C-5/04: Action brought on 9 January 2004 by the Commission of the European Communities against the Federal Republic of Germany

text:
C 47/26                EN                       Official Journal of the European Union                                           21.2.2004
Action brought on 9 January 2004 by the Commission of                   The applicant claims that the Court should:
the European Communities against the Federal Republic
                           of Germany                                   1.    declare that, by failing to adopt or in any event to
                                                                              inform the Commission of the laws, regulations and
                                                                              administrative provisions necessary in order to comply
                          (Case C-5/04)                                       fully with Council Directive 1999/63/EC (1) of 21 June
                                                                              1999 concerning the Agreement on the organisation of
                         (2004/C 47/44)                                       working time of seafarers concluded by the European
                                                                              Community Shipowners’ Association (ECSA) and the
                                                                              Federation of Transport Workers’ Unions in the European
                                                                              Union (FST) — Annex: European Agreement on the
An action against the Federal Republic of Germany was                         organisation of working time of seafarers, the Republic
brought before the Court of Justice of the European Communi-                  of Austria has failed to fulfil its obligations under Article 3
ties on 9 January 2004 by the Commission of the European                      of that directive; and
Communities, represented by Karen Banks and Dr Claudia
Schmidt, Agents, with an address for service in Luxembourg.             2.    order the Republic of Austria to pay the costs of the case.
The Commission claims that the Court should:                            Pleas in law and main arguments
1.    declare that, by failing to adopt, or to communicate to
      the Commission, the laws, regulations and administrative          The period within which the directive was to be implemented
      provisions necessary to implement Directive 98/44/EC (1)          expired on 30 June 2002.
      of the European Parliament and the Council of 6 July
      1998 on the legal protection of biotechnological inven-
                                                                        (1) OJ 1999 L 167, p. 33.
      tions, the Federal Republic of Germany has failed to fulfil
      its obligations under that directive; and
2.    order the Federal Republic of Germany to pay the costs
      of the case.
                                                                               Removal from the register of Case C-376/99 (1)
Pleas in law and main arguments                                                                   (2004/C 47/46)
The period within which the directive was to be implemented
expired on 30 July 2000.                                                By order of 17 September 2003 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-376/99: Federal Republic of
(1) OJ 1998 L 213, p. 13.                                               Germany v Commission of the European Communities.
                                                                        (1) OJ C 352, 4.12.1999.
Action brought on 13 January 2004 by the Commission
of the European Communities against the Republic of
                             Austria                                           Removal from the register of Case C-101/03 (1)
                                                                                (2004/C 47/47)
                         (Case C-10/04)
                         (2004/C 47/45)                                 By order of 21 October 2003 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
                                                                        from the register of Case C-101/03: Commission of the
                                                                        European Communities v Italian Republic.
An action against the Republic of Austria was brought
before the Court of Justice of the European Communities
on 13 January 2004 by the Commission of the European                    (1) OJ C 118, 18.5.2002.
Communities, represented by G. Rozet and H. Kreppel, Agents,
with an address for service in Luxembourg.


title: Judgment of the Court of First Instance of 3 February 2005 in Case T-137/03 Ornella Mancini v Commission of the European Communities (Officials — Post of medical officer — Amendment to the vacancy notice — Misuse of powers — Composition of the Selection Board — Comparative examination of merits — Manifest error of assessment — Equal treatment for men and women — Action for damages)

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/27

      JUDGMENT OF THE COURT OF FIRST INSTANCE

   of 3 February 2005
   in Case T-137/03 Ornella Mancini v Commission of the European Communities (1)

   (Officials - Post of medical officer - Amendment to the vacancy notice - Misuse of powers - Composition of the Selection Board - Comparative examination of merits - Manifest error of assessment - Equal treatment for men and women - Action for damages)
   (2005/C 93/53)
   Language of the case: French
   In Case T-137/03: Ornella Mancini, official of the Commission of the European Communities, residing in Brussels (Belgium), represented by É. Boigelot, lawyer, against Commission of the European Communities (Agents: C. Berardis-Kayser and G. Berscheid, assisted by B. Wägenbaur, lawyer, with an address for service in Luxembourg) — application, first, for annulment of the Commission's decision not to appoint the applicant to the post of medical officer at the ‘Medical service – Brussels’ unit and of the decision to appoint another candidate to that post and, second, for damages — the Court of First Instance (Fourth Chamber), composed of H. Legal, President, V. Tiili and M. Vadapalas, Judges; I. Natsinas, Administrator, for the Registrar, gave a judgment on 3 February 2005, in which it:

               1.

               Dismisses the application.

               2.

               Orders each party to bear its own costs.

      (1)  OJ C 158 of 5.7.2003.


title: Case C-100/11 P: Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

text:
               14.5.2011

               EN

               Official Journal of the European Union

               C 145/12

         Appeal brought on 2 March 2011 by Helena Rubinstein, L'Oréal against the judgment of the General Court (Third Chamber) delivered on 16 December 2010 in Case T-345/08: Helena Rubinstein SNC, L'Oréal SA v Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.
   (Case C-100/11 P)
   2011/C 145/17
   Language of the case: English

      Parties

      Appellants: Helena Rubinstein SNC, L'Oréal SA (represented by: A. von Mühlendahl, Rechtsanwalt)

      Other parties to the proceedings: Office for Harmonisation in the Internal Market (Trade Marks and Designs), Allergan, Inc.

      Form of order sought

   The appellants claim that the Court should:

               —

               annul the judgment of the General Court of 16 November 2010 in joined cases T-345/08 and T-357/08;

               —

               to dismiss the appeals filed by Allergan, Inc. against the decisions of the Office's Cancellation Division of 28 March 2007 in Case 1118 C (Helena Rubinstein SNC, BOTOLIST) and 4 April 2007 in Case 1120 C (L'Oréal SA, BOTOCYL);

               —

               to order the Office to bear the costs of the proceedings before the Court of Justice and before the General Court, as well as the costs of the proceedings before the Office's Board of Appeal.

      Pleas in law and main arguments

   The appellants submit that the contested judgment should be annulled on the following grounds:

               That the General Court violated Article 52 (1)CTMR (1) in conjunction with Article 8 (5) CTMR in deciding that the Office was justified in finding that the earlier marks relied on by Allergan, Inc. had reputation and that the use of the contested registrations would take unfair advantage of or be detrimental to the distinctiveness or the reputation of the earlier marks.

               That the General Court violated Article 115 CTMR in conjunction with Article 1 Rule 38 (2) of Commission Regulation (EC) No 2868/95 (2) of 13 December 1995 implementing Council Regulation (EC) No 40/94 on the Community trade mark, as amended (referred to hereafter as ‘Rule 38’ and ‘CTMIR’),in taking into account evidence which was not submitted in the language of the proceedings.

               That the General Court violated Article 63 CTMR in reviewing and confirming the contested decisions according to erroneous legal standards.

               That the General Court violated Articles 73 CTMR in deciding that the contested decisions were not vitiated by absence of sufficient reasons.

      (1)  OJ L 011, p. 1.

      (2)  OJ L 303, p. 1


title: Case C-367/00: Action brought on 5 October 2000 by the Commission of the European Communities against the French Republic

text:
C 355/12              EN                     Official Journal of the European Communities                                         9.12.2000
Action brought on 5 October 2000 by the Commission                      The applicant claims that the Court should:
of the European Communities against the French Republic
                                                                        1.    declare that by failing to take all necessary measures to
                        (Case C-367/00)                                       ensure that the quality of bathing water conforms to
                                                                              the limit values in Council Directive 76/160/EEC(1) of
                                                                              8 December 1975 concerning the quality of bathing
                        (2000/C 355/22)                                       water and by failing to carry out the required minimum
                                                                              of sampling operations the Kingdom of Sweden has failed
                                                                              to fulfil its obligations under Articles 4(1) and 6(1) of that
An action against the French Republic was brought before the                  directive;
Court of Justice of the European Communities on 5 October
2000 by the Commission of the European Communities,
represented by Marie Wolfcarius, Legal Adviser, acting as               2.    order the Kingdom of Sweden to bear the costs.
Agent, with an address for service in Luxembourg at the office
of Carlos Gómez de la Cruz, of the Commission’s Legal Service,
Wagner Centre, Kirchberg.                                               Pleas in law and main arguments
The applicant claims that the Court should:                             Under the binding provisions of the third paragraph of
                                                                        Article 249 EC and the first paragraph of Article 10 EC,
—     Declare that, by failing to adopt the laws, regulations and       Member States must take, within the prescribed period, the
      administrative provisions needed in order to comply with          measures necessary to comply with directives addressed to the
      Council Directive 96/48/EC of 23 July 1996 on the                 Member States. In the case of Sweden, Directive 76/160/EEC
      interoperability of the trans-European high-speed rail            entered into force on 1 January 1995 as a result of the Act of
      system(1), the French Republic has failed to fulfil its           Accession (Article 2). Sweden was therefore obliged to meet
      obligations under that directive;                                 the requirements of the directive by that date at the latest.
                                                                        However, by the 1998 bathing season, Sweden had not taken
                                                                        all the measures necessary to fulfil its obligations under
—     Order the French Republic to pay the costs.
                                                                        Articles 4(1) and 6(1) of the directive.
Pleas in law and main arguments                                         (1) OJ 1976 L 031, p. 1.
The pleas in law and main arguments correspond to those in
Case C-366/00(2); the period for transposition laid down by
Article 23 of Directive 96/48/EC expired on 8 April 1999.
(1) OJ L 235, 17.9.1996, p. 6.
(2) OJ C ...
                                                                        Action brought on 10 October 2000 by the Commission
                                                                                of the European Communities against Ireland
                                                                                (Case C-372/00)
                                                                                (2000/C 355/24)
Action brought on 6 October 2000 by the Commission                      An action against Ireland was brought before the Court of
of the European Communities against the Kingdom of                      Justice of the European Communities on 10 October 2000 by
                             Sweden                                     the Commission of the European Communities, represented
                                                                        by Marie Wolfcarius, Legal Adviser, acting as agent, with an
                                                                        address for service at the office of Carlos Gómez de la Cruz, a
                        (Case C-368/00)                                 member of the Legal Service of the Commission, Wagner
                                                                        Centre, Kirchberg, Luxembourg.
                        (2000/C 355/23)
                                                                        The Applicant claims that the Court should:
An action against the Kingdom of Sweden was brought
before the Court of Justice of the European Communities                 —     declare that by failing to adopt the laws, regulations
on 6 October 2000 by the Commission of the European                           or administrative provisions necessary to comply with
Communities, represented by Lena Ström, of its Legal Service,                 Council Directive 96/48/EC of 23 July 1996 on the
acting as Agent, with an address for service in Luxembourg at                 interoperability of the trans-European high-speed rail
the office of Carlos Gómez de la Cruz, also of that service,                 system (1), Ireland has failed to fulfil its obligations under
Wagner Centre, Kirchberg.                                                     that Directive.


title: Case F-39/14: Action brought on 25th April 2014 — ZZ v European Market and Securities Authority (ESMA)

text:
               24.11.2014

               EN

               Official Journal of the European Union

               C 421/58

         Action brought on 25th April 2014 — ZZ v European Market and Securities Authority (ESMA)
   (Case F-39/14)
   2014/C 421/83
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: A. Pappas, lawyer)

      Defendant: European Market and Securities Authority (ESMA)

      Subject-matter and description of the proceedings

   The annulment of the decision not to renew the contract of the applicant and the compensation of the non-material harm endured.

      Form of order sought

               —

               Annul the decision ESMA/2013/ED/23, dated 28th June 2013, concerning the applicant’s non-renewal of the contract;

               —

               order the defendant to pay compensatory damages amounting to 20  000 euro for the endured non-material harm;

               —

               order the defendant to pay the costs of the proceedings.


title: Case T-149/13: Order of the General Court of 15 October 2013 — Spain v Commission (Action for annulment — Period allowed for commencing proceedings — Point from which time starts to run — Publication in the Official Journal — Inadmissibility)

text:
               7.12.2013

               EN

               Official Journal of the European Union

               C 359/14

         Order of the General Court of 15 October 2013 — Spain v Commission
   (Case T-149/13) (1)

   (Action for annulment - Period allowed for commencing proceedings - Point from which time starts to run - Publication in the Official Journal - Inadmissibility)
   2013/C 359/26
   Language of the case: Spanish

      Parties

      Applicant: Kingdom of Spain (represented: initially by S. Centeno Huerta, and subsequently by J. García-Valdecasas Dorrego, abogados del Estado)

      Defendant: European Commission (represented by: J. Currall, J. Baquero Cruz and B. Eggers, acting as Agents)

      Re:

   Application for annulment of the Notice of Open Competition No EPSO/AST/126/12, to constitute a reserve list of assistants (AST 3), ‘Research’ sector, in the fields of ‘Biology, Life and Health Sciences’, ‘Chemistry’, ‘Physics and Materials Science’, ‘Nuclear Research’, ‘Civil and Mechanical Engineering’ and ‘Electrical Engineering and Electronics’ (OJ 2012, C 394 A, p.11)

      Operative part of the order

               1.

               The action is dismissed as inadmissible;

               2.

               The Kingdom of Spain is ordered to bear its own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 123, 27.4.2013.


title: Case C-269/16: Order of the President of the Court of 24 March 2017 (request for a preliminary ruling from the Letrado de la Administración de Justicia del Juzgado de lo Social n°2 de Terrassa — Spain) — Elena Barba Giménez v Francisca Carrión Lozano

text:
               26.6.2017

               EN

               Official Journal of the European Union

               C 202/13

         Order of the President of the Court of 24 March 2017 (request for a preliminary ruling from the Letrado de la Administración de Justicia del Juzgado de lo Social no2 de Terrassa — Spain) — Elena Barba Giménez v Francisca Carrión Lozano
   (Case C-269/16) (1)

   (2017/C 202/20)
   Language of the case: Spanish
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 279, 1.8.2016.


title: Case C-557/07: Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 14 December 2007 — LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/20

         Reference for a preliminary ruling from the Oberster Gerichtshof (Austria) lodged on 14 December 2007 — LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH v Tele2 Telecommunication GmbH
   (Case C-557/07)
   (2008/C 64/30)
   Language of the case: German
   Referring court
   Oberster Gerichtshof
   Parties to the main proceedings

      Applicant: LSG-Gesellschaft zur Wahrnehmung von Leistungsschutzrechten GmbH

      Defendant: Tele2 Telecommunication GmbH
   Questions referred

               1.

               Is the term ‘intermediary’ in Article 5(1)(a) and Article 8(3) 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 (1) to be interpreted as including an access provider who merely provides a user with access to the network by allocating him a dynamic IP address but does not himself provide him with any services such as e-mail, FTP or file-sharing services and does not exercise any control, either in law or in fact, over the services which the user makes use of?

               2.

               If the first question is answered in the affirmative:
               Is Article 8(3) of Directive 2004/48/EC of the European Parliament and of the Council of 29 April 2004 on the enforcement of intellectual property rights (2), having regard to Article 6 and Article 15 of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector, to be interpreted (restrictively) as not permitting the disclosure of personal traffic data to private third parties for the purpose of civil proceedings for alleged infringements of exclusive rights protected by copyright (rights of exploitation and use)?

      (1)  OJ 2001 L 167, p. 10.

      (2)  OJ 2004 L 157, p. 45.