title: JUDGMENT OF THE COURT (Sixth Chamber) of 16 September 1997 in Case C-145/96 (reference for a preliminary ruling from the Finanzgericht Rheinland-Pfalz, Neustadt an der Weinstrasse): Bernd von Hoffmann v. Finanzamt Trier (Sixth VAT Directive - Interpretation of Article 9 (2) (e), third indent - Services of an arbitrator - Place where services are supplied)

text:
C 331 /4                EN                   Official Journal of the European Communities                                          1 . 11 . 97
     — Commission Directive 93/49/EEC of 23 June 1993                   Ragnemalm and R. Schintgen, Judges; N. Fennelly,
         setting out the schedule indicating the conditions             Advocate General; H. A. Riihl, Principal Administrator,
         to be met by ornamental plant propagating                      for the Registrar, has given a judgment on 16 September
         material and ornamental plants pursuant to                     1997, in which it has ruled:
         Council Directive 91 /682/EEC and
                                                                        On a proper construction, Article 9 (2) (e), third indent,
     — Commission Directive 93/61 /EEC of 2 July 1993                   of the Sixth Council Directive 77/388/EEC of 17 May
         setting out the schedules indicating the conditions            1977 on the harmonization of the laws of the Member
         to be met by vegetable propagating and planting                States relating to turnover taxes — Common system of
         material, other than seed pursuant to Council                  value added tax: uniform basis of assessment does not
         Directive 92/33/EEC,
                                                                        refer to the services of a member of an arbitration
                                                                        tribunal.
     the Federal Republic of Germany has failed to comply
     with its obligations under the first subparagraph of               (') OJ C 197, 6 . 7. 1996 .
     Article 10 (1 ) of Directive 93/48/EEC, the first                  ( 2 ) OJ L 145 , 13 . 6 . 1977, p . 1 .
     subparagraph of Article 8 (1 ) of Directive 93/49/EEC
     and the first subparagraph of Article 7 (1 ) of Directive
     93/61 /EEC.
2 . orders the Federal Republic of Germany to pay the
     costs .                                                                             JUDGMENT OF THE COURT
                                                                                (Fifth Chamber)
(') OJ C 197, 6 . 7. 1996 .
(2) OJ L 250, 7.  10 . 1993 , p . 1 .                                                             of 17 September 1997
(3) OJ L 250, 7.  10 . 1993 , p . 9 .
(4) OJ L 250 , 7. 10 . 1993 , p . 19 .                                  in Case C-322/95 (reference for a preliminary ruling from
                                                                        the Pretura Circondariale di Roma): Emanuele Iurlaro v.
                                                                              Istituto Nazionale della Previdenza Sociale (INPS) (')
                                                                        (Regulations (EEC) Nos 1408/71 and 574/72 — Invalidity
                                                                        benefits — Acquisition of entitlement to benefit —
                                                                        Reference period — Taking into account of periods of
               JUDGMENT OF THE COURT                                                 unemployment in another Member State)
                          ( Sixth Chamber)                                                            ( 97/C 331 /08 )
                       of 16 September 1997
                                                                                (Language of the case: Italian)
in Case C-145/96 ( reference for a preliminary ruling
from the Finanzgericht Rheinland-Pfalz, Neustadt an der
  Weinstrasse): Bernd von Hoffmann v. Finanzamt Trier (')                  (Provisional translation; the definitive translation will be
(Sixth VAT Directive — Interpretation of Article 9 (2) (e),                         published in the European Court Reports)
third indent — Services of an arbitrator — Place where
                       services are supplied)                           In Case C-322/95 : reference to the Court under Article 177
                            ( 97/C 331 /07 )                            of the EC Treaty by the Pretura Circondariale di Roma for
                                                                        a preliminary ruling in the proceedings pending before
                                                                        that      court   between        Emanuele      Iurlaro and    Istituto
                (Language of the case: German)                          Nazionale della Previdenza Sociale (INPS ), on the
                                                                        interpretation of Article 9a of Regulation ( EEC ) No 1408/
                                                                        71 of the Council of 14 June 1971 on the application of
  (Provisional translation; the definitive translation will be
                                                                        social security schemes to employed persons, to self
          published in the European Court Reports)
                                                                        employed persons and to members of their families
                                                                        moving within the Community (2 ), as amended and
In Case C-145/96 : reference to the Court under Article 177             updated by Council Regulation ( EEC ) No 2001 /83 of
of the EC Treaty from the Finanzgericht Rheinland-Pfalz                 2 June 1993 ( 3 ) and subsequently amended by Council
( Financial Court, Rhineland-Palatinate ), Neustadt an der              Regulation ( EEC ) No 2332/89 of 18 July 1989 (4 ), and of
Weinstrasse ( Germany), for a preliminary ruling in the                 Article 15 of Regulation ( EEC ) No 574/72 of the Council
proceedings pending before that court between Bernd von                 of 21 March 1972 laying down the procedure for
Hoffmann and Finanzamt Trier — on the interpretation of                 implementing Regulation ( EEC ) No 1408/71 ( 5 ), as
Article 9 ( 2 ) ( e ), third indent, of the Sixth Council               amended and updated by Regulation No 2001/83 , — the
Directive 77/388/EEC of 17 May 1977 on the                              Court ( Fifth Chamber) composed of: J. C. Moitinho de
harmonization of the laws of the Member States relating                 Almeida, ( Rapporteur), L. Sevon, D. A. O. Edward, P.
to turnover taxes — Common system of value added tax:                   Jann and M. Wathelet, Judges; Advocate General; P. Leger,
uniform basis of assessment ( 2 ) — the Court ( Sixth                   H. A. Riihl, Principal Administrator, gave a judgment on
Chamber), composed of: G. F. Mancini, President of the                   17 December 1997, the operative part of which is as
Chamber, C. N. Kakouris ( Rapporteur), G. Hirsch, H.                     follows :


               5.12.2009

               EN

               Official Journal of the European Union

               C 297/6

         2009/C 297/02
   Last publication of the Court of Justice in the Official Journal of the European Union

         OJ C 282, 21.11.2009

      Past publications

      OJ C 267, 7.11.2009

      OJ C 256, 24.10.2009

      OJ C 244, 10.10.2009

      OJ C 233, 26.9.2009

      OJ C 220, 12.9.2009

      OJ C 205, 29.8.2009

   These texts are available on:
   EUR-Lex: http://eur-lex.europa.eu


title: Case F-89/13: Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission (Exclusion of the representative of a party from the proceedings — Failure to designate a new representative — Applicant no longer responding to communications from the Tribunal — No need to adjudicate)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/48

         Order of the Civil Service Tribunal (Second Chamber) of 19 March 2015 — Marcuccio v Commission
   (Case F-89/13) (1)

   ((Exclusion of the representative of a party from the proceedings - Failure to designate a new representative - Applicant no longer responding to communications from the Tribunal - No need to adjudicate))
   (2015/C 146/66)
   Language of the case: Italian

      Parties

      Applicant: Luigi Marcuccio (Tricase, Italy) (represented by: A., lawyer)

      Defendant: European Commission (represented by: C. Berardis-Kayser and G. Gattinara, acting as Agents)

      Re:

   Application for annulment of the decision to withhold the sum of EUR 504,67 from the applicant’s invalidity allowance for the each of the three months from January to March 2013.

      Operative part of the order

               1.

               There is no longer any need to adjudicate on the action in Case F-89/13 Marcuccio v Commission.

               2.

               Mr Marcuccio shall bear his own costs and pay the costs incurred by the European Commission.

      (1)  OJ C 24, 25.1.2014, p. 39.


title: Case T-35/09: Judgment of the General Court of 2 June 2010 — Procaps v OHIM — Biofarma (PROCAPS) (Community trade mark — Opposition procedure — Application for the Community word mark PROCAPS — Earlier national and international word marks PROCAPTAN — Relative ground for refusal — Likelihood of confusion — Similarity of the signs — Similarity of the goods and services — Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/17

         Judgment of the General Court of 2 June 2010 — Procaps v OHIM — Biofarma (PROCAPS)
   (Case T-35/09) (1)

   (Community trade mark - Opposition procedure - Application for the Community word mark PROCAPS - Earlier national and international word marks PROCAPTAN - Relative ground for refusal - Likelihood of confusion - Similarity of the signs - Similarity of the goods and services - Article 8(1)(b) of Regulation (EC) No 40/94 (now Article 8(1)(b) of Regulation (EC) No 207/2009))
   2010/C 195/26
   Language of the case: Spanish

      Parties

      Applicant: Procaps, SA (Barranquilla, Colombia) (represented by: M. Vidal-Quadras Trias de Bes, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) (represented by: Ó. Mondéjar Ortuño, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervener before the General Court: Biofarma SAS (Neuilly-sur-Seine, France) (represented by: A. Ruiz López and V. Gil Vega, lawyers

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 24 November 2008 (Case R 867/2007-4), concerning opposition proceedings between Biofarma SAS and Procaps, SA

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Procaps, SA to pay the costs.

      (1)  OJ C 69, 21.3.2009.


title: Case T-26/05: Action brought on 18 January 2005 by the Italian Republic against the Commission of the European Communities

text:
               19.3.2005

               EN

               Official Journal of the European Union

               C 69/26

         Action brought on 18 January 2005 by the Italian Republic against the Commission of the European Communities
   (Case T-26/05)
   (2005/C 69/46)
   Language of the case: Italian
   An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 18 January 2005 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.
   The applicant claims that the Court should:

               1.

               annul:

                           —

                           the memorandum of 9 November 2004 SPD – Emilia-Romagna;

                           —

                           the memorandum of 10 November 2004 NOP Research;

                           —

                           the memorandum of 12 November 2004 SPD Piemonte, PEP Calabria, PEP Molise, SPD Toscana, PEP Sicilia, SPD Marche, SPD Friuli-Venezia Giulia, PEP Campania, SPD Liguria;

                           —

                           the memorandum of 16 November 2004 SPD Lombardia, SPD Veneto;

                           —

                           the memorandum of 17 November 2004 SPD Lazio;

                           —

                           the memorandum of 18 November 2004 NOP Local enterprise development;

                           —

                           the memorandum of 22 November 2004 PEP Sicilia;

                           —

                           the memorandum of 24 November 2004 PEP Puglia;

                           —

                           the memorandum of 29 November 2004 SPD IP Trento;

                           —

                           the memorandum of 16 December 2004 PEP Puglia;

                           —

                           the memorandum of 17 December 2004 PEP Campania;

                           —

                           the memorandum of 10 January 2005 NOP Local enterprise development.

               2.

               order the Commission to pay the costs.

         Pleas in law and main arguments
   The pleas in law and main arguments are the same as those put forward in Case T-345/04 Italian Republic v Commission
       (1).

      (1)  OJ C 262 of 23.10.2004, p. 55.


title: Case T-658/15: Action brought on 13 November 2015 — García Rey v Parliament

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/71

         Action brought on 13 November 2015 — García Rey v Parliament
   (Case T-658/15)
   (2016/C 048/79)
   Language of the case: English

      Parties

      Applicant: Marcos García Rey (Madrid, Spain) (represented by: N. Pirc Musar, lawyer)

      Defendant(s): European Parliament

      Form of order sought

   The applicant claims that the Court should:

               —

               annul decision A(2015)8661 C of the European Parliament of 16 September 2015 rejecting the applicant’s confirmatory application for access to certain documents relating to information on Members’ of the European Parliament travel expenses, subsistence allowances, general expenditure allowances and staffing arrangements expenses;

               —

               order the Parliament to pay the applicant’s costs pursuant to Articles 134 and 140 of the Rules of Procedure of the General Court, including the costs of any intervening parties.

      Pleas in law and main arguments

   In support of the action, the applicant relies on five pleas in law.

               1.

               First plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 (1) in conjunction with Article 8(b) of Regulation 45/2001 (2), since the personal data requested are not protected under Community legislation

               2.

               Second plea in law, alleging a violation of Article 4(1)(b) of Regulation 1049/2001 in conjunction with Article 8(b) of Regulation 45/2001, as the access to the requested information was refused, although the conditions for disclosure were met

               3.

               Third plea in law, alleging a violation of the general obligation, under Articles 2 and 4 of Regulation 1049/2001 in conjunction with Article 6(3) of Regulation 1049/2001, to conduct an examination of each individual document

               4.

               Fourth plea in law, alleging a violation of Article 4(6) of Regulation 1049/2001, as the refusal to grant partial access to the requested documents was not justified

               5.

               Fifth plea in law, alleging a violation of the duty to state reasons as required by Articles 7(1) and 8(1) of Regulation 1049/2001, as the Parliament failed to address all the applicant’s arguments

      (1)  Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (OJ 2001 L 145, p. 43).

      (2)  Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ 2001 L 8, p. 1).


title: Judgment of the Court (Third Chamber) of  6 October 2005  in Case C-291/03: Reference for a preliminary ruling from the VAT and Duties Tribunal, Manchester, MyTravel plc v Commissioners of Customs & Excise (Sixth VAT Directive — Scheme for travel agents — Package tours — Services bought in from third parties and in-house services — Method of calculating the tax)

text:
               26.11.2005

               EN

               Official Journal of the European Union

               C 296/3

      JUDGMENT OF THE COURT

   (Third Chamber)
   of 6 October 2005
   in Case C-291/03: Reference for a preliminary ruling from the VAT and Duties Tribunal, Manchester, MyTravel plc v Commissioners of Customs & Excise (1)

   (Sixth VAT Directive - Scheme for travel agents - Package tours - Services bought in from third parties and in-house services - Method of calculating the tax)
   (2005/C 296/06)
   Language of the case: English
   In Case C-291/03: reference for a preliminary ruling under Article 234 EC from the VAT and Duties Tribunal, Manchester (United Kingdom), made by decision of 30 June 2003, received at the Court on 4 July 2003, in the proceedings between MyTravel plc and Commissioners of Customs & Excise — the Court (Third Chamber), composed of A. Rosas, President of the Chamber, A. Borg Barthet (Rapporteur), J.-P. Puissochet, S. von Bahr and U. Lõhmus, Judges; P. Léger, Advocate General; M. Ferreira, Principal Administrator, for the Registrar, gave a judgment on 6 October 2005, the operative part of which is as follows:

               1.

               A travel agent or a tour operator who has completed his value added tax return for a tax period using the method laid down by the national rules which transpose into domestic law 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 may recalculate his value added tax liability in accordance with the method held by the Court to comply with Community law, under the conditions laid down by national law, which have to observe the principles of equivalence and effectiveness.

               2.

               Article 26 of Sixth Directive 77/388 must be interpreted as meaning that a travel agent or tour operator who, in return for a package price, supplies to a traveller services bought in from third parties and in-house services must, in principle, identify the part of the package corresponding to his in-house services on the basis of their market value where that value can be established. In such a case, a taxable person may use the criterion of actual costs only if he proves that this criterion accurately reflects the actual structure of the package. Application of the criterion of market value is not subject to the condition that it must be simpler than application of the actual cost method or to the condition that it must produce a value added tax liability identical or close to that which would result from using the actual cost method. Accordingly:

                           —

                           a travel agent or tour operator may not use the market value method at his own discretion and

                           —

                           that method is applicable to in-house services whose market value may be established even if, in the same tax period, the value of certain in-house components of the package cannot be established inasmuch as the taxable person does not sell similar services on a non-package basis.

               3.

               It is for the national tribunal to establish, in the light of the circumstances of the main proceedings, the market value of the flights supplied in the main proceedings as part of package holidays. The national tribunal may establish this market value from average values. In this context, the market based on seats sold to other tour operators may constitute the most appropriate market.

      (1)  OJ C 213 of 06.09.2003.


title: Case T-73/05: Judgment of the Court of First Instance of  16 May 2006  — Martin Magone v Commission (Officials — Career development report — Action for annulment — Action for compensation — Manifest error of assessment — Duty to state reasons — Misuse of powers — Psychological harassment)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/26

         Judgment of the Court of First Instance of 16 May 2006 — Martin Magone v Commission
   (Case T-73/05) (1)

   (Officials - Career development report - Action for annulment - Action for compensation - Manifest error of assessment - Duty to state reasons - Misuse of powers - Psychological harassment)
   (2006/C 165/50)
   Language of the case: French
   Parties

      Applicant: Alejandro Martin Magone (Brussels, Belgium) (represented by: É. Boigelot, lawyer)

      Defendant: Commission of the European Communities (represented by: L. Lozano Palacios and K. Hermann, Agents)
   Re:
   First, an application for annulment of the applicant's career development report for the 2003 assessment exercise, and, second, an application for compensation for material and non-material damage assessed on an equitable basis at EUR 39 169,67
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action.

               2.

               Orders the parties to bear their own costs.

      (1)  OJ C 106, 30.4.2005.


title: Case F-59/13: Action brought on 24 June 2013 — ZZ v EEAS

text:
               10.8.2013

               EN

               Official Journal of the European Union

               C 233/14

         Action brought on 24 June 2013 — ZZ v EEAS
   (Case F-59/13)
   2013/C 233/23
   Language of the case: French

      Parties

      Applicant: ZZ (represented by: D. de Abreu Caldas, A. Coolen, É. Marchal and S. Orlandi, lawyers)

      Defendant: European External Action Service

      Subject-matter and description of the proceedings

   Annulment of the decision rejecting the applicant’s application to have his successive fixed-term employment contracts reclassified as a contract of indefinite duration and to have his period completed as an auxiliary member of the contract staff recognised as a period of service completed as a member of the contract staff.

      Form of order sought

               —

               Annul the decision rejecting the applicant’s application;

               —

               Reclassify his contract of an auxiliary member of the contract staff as a contract of indefinite duration of a member of the contract staff under Article 3a of the CEOS;

               —

               Order the EEAS to pay the costs.


title: Case C-427/10: Judgment of the Court (Third Chamber) of 15 December 2011 (reference for a preliminary ruling from the Corte suprema di cassazione — Italy) — Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA v Ministero dell’Economia e delle Finanze, Agenzia delle Entrate (VAT — Recovery of VAT paid but not due — National legislation under which actions may be brought for the recovery of sums paid but not due, before different courts and subject to different time-limits, depending on whether the claimant is the recipient of the services or their supplier — Possibility for the recipient to claim a VAT refund from the supplier after the expiry of the time-limits within which the supplier is able to bring an action against the tax authority — Principle of effectiveness)

text:
               11.2.2012

               EN

               Official Journal of the European Union

               C 39/6

         Judgment of the Court (Third Chamber) of 15 December 2011 (reference for a preliminary ruling from the Corte suprema di cassazione — Italy) — Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA v Ministero dell’Economia e delle Finanze, Agenzia delle Entrate
   (Case C-427/10) (1)

   (VAT - Recovery of VAT paid but not due - National legislation under which actions may be brought for the recovery of sums paid but not due, before different courts and subject to different time-limits, depending on whether the claimant is the recipient of the services or their supplier - Possibility for the recipient to claim a VAT refund from the supplier after the expiry of the time-limits within which the supplier is able to bring an action against the tax authority - Principle of effectiveness)
   2012/C 39/08
   Language of the case: Italian

      Referring court

   Corte suprema di cassazione

      Parties to the main proceedings

      Applicant: Banca Antoniana Popolare Veneta SpA, incorporating Banca Nazionale dell’Agricoltura SpA

      Defendants: Ministero dell’Economia e delle Finanze, Agenzia delle Entrate

      Re:

   Reference for a preliminary ruling — Corte Suprema di Cassazione — Interpretation of Article 17(3) of Directive 77/388/EEC: Sixth Council Directive 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) — Recovery of tax paid but not due — National legislation under which actions may be brought for recovery before different courts and subject to different time-limits, depending on whether the claimant is the recipient/client of the service on which VAT was paid (10 years) or the supplier/provider of that service (2 years) — Possibility for the recipient/client to claim reimbursement of the VAT from the supplier/provider after expiry of the period during which the latter may bring an action — Principles of tax neutrality, effectiveness and non-discrimination

      Operative part of the judgment

   The principle of effectiveness does not preclude national rules governing the recovery of sums paid but not due, under which the time-limits for a civil law action for recovery of sums paid but not due, brought by the recipient of services against the supplier, a taxable person for the purposes of VAT, are more generous than the specific time-limits for a fiscal law action for a tax refund, brought by the supplier against the tax authority, provided that it is possible for that taxable person effectively to claim reimbursement of the VAT from the tax authority. That condition is not satisfied where the application of such rules has the effect of totally depriving the taxable person of the right to obtain from the tax authority a refund of the VAT paid but not due, which the taxable person has himself had to pay back to the recipient of his services.

      (1)  OJ C 288, 23.10.2010.


title: Case C-267/05: Order of the President of the Court of  7 February 2006  (reference for a preliminary ruling from the High Court — Chancery Division) — Oakley Inc v Animal Ltd and Others

text:
               1.7.2006

               EN

               Official Journal of the European Union

               C 154/14

         Order of the President of the Court of 7 February 2006 (reference for a preliminary ruling from the High Court — Chancery Division) — Oakley Inc v Animal Ltd and Others
   (Case C-267/05) (1)

   (2006/C 154/37)

      Language of the case: English

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 229, 17.09.2005.


title: Case T-438/05: Action brought on  14 December 2005  — Daishowa Seiki v OHIM

text:
               22.4.2006

               EN

               Official Journal of the European Union

               C 96/14

         Action brought on 14 December 2005 — Daishowa Seiki v OHIM
   (Case T-438/05)
   (2006/C 96/27)
   Language in which the application was lodged: German
   Parties

      Applicant: Daishowa Seiki Co. Ltd (Osaka, Japan) (represented by: T. Krüger, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs)
   Other party to the proceedings before the Board of Appeal of OHIM: Tengelmann Warenhandelsgesellschaft KG (Mülheim, Germany)
   Form of order sought

               —

               Annul Decision R928/2004-1 of the First Board of Appeal for the Office for Harmonisation in the Internal Market (Trade Marks and Designs), made on 7 September 2005;

               —

               order the Office for Harmonisation in the Internal Market (Trade Marks and Designs) to pay the costs of this action and of the objection proceedings R928/2004-1.

         Pleas in law and main arguments
   Applicant for a Community trade mark: Daishowa Seiki Co. Ltd

      Community trade mark concerned: figurative mark ‘BIG PLUS’ for goods in Class 7 (Metal machine tools, parts and tool holders) Application no. 1 073 964
   Proprietor of the mark or sign cited in the opposition proceedings: Tengelmann Warenhandelsgesellschaft KG

      Mark or sign cited in opposition: The national figurative mark ‘Plus’ for goods, inter alia in Classes 6 and 8
   Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Setting aside of the decision of the Opposition Division

      Pleas in law: Infringement of Article 8(1)(b) of EC Regulation No. 40/94, as there is no risk of confusion between the opposing trade marks, (i) due to the lack of similarity of the goods and trade marks, and (ii) because the distinctive character of the opposing trademark is limited to the graphical design.


title: Case C-259/10: Reference for a preliminary ruling from Court of Appeal (Civil Division) (England & Wales) made on 26 May 2010 — Commissioners for Her Majesty's Revenue and Customs v The Rank Group PLC

text:
               31.7.2010

               EN

               Official Journal of the European Union

               C 209/28

         Reference for a preliminary ruling from Court of Appeal (Civil Division) (England & Wales) made on 26 May 2010 — Commissioners for Her Majesty's Revenue and Customs v The Rank Group PLC
   (Case C-259/10)
   ()
   2010/C 209/39
   Language of the case: English

      Referring court

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

      Parties to the main proceedings

      Applicant: Commissioners for Her Majesty's Revenue and Customs

      Defendant: The Rank Group PLC

      Questions referred

               1.

               Where there is differential VAT treatment:

                           (i)

                           as between supplies that are identical from the point of view of the consumer; or

                           (ii)

                           as between similar supplies that meet the same needs of the consumer; is that of itself sufficient to establish an infringement of the principle of fiscal neutrality or is it relevant to consider (and, if so, how)

                                       (a)

                                       the regulatory and economic context;

                                       (b)

                                       whether or not there is competition between the identical services or, as the case may be, the similar services in question; and/or

                                       (c)

                                       whether or the different VAT treatment has caused distortion of competition?

               2.

               Is a taxpayer whose supplies are, as a matter of national law, subject to VAT (by reason of the exercise by a Member State of its discretion under Article 13B(f) of the Sixth Directive (1)) entitled to claim a repayment of VAT paid on those supplies on the basis of an infringement of the principle of fiscal neutrality arising out of the VAT treatment of other supplies (‘comparator supplies’) where:

                           (a)

                           as a matter of national law, the comparator supplies were subject to VAT but

                           (b)

                           the taxing authority of the Member State had a practice of treating comparator supplies as exempt from VAT?

               3.

               If the answer to Question 2 is in the affirmative, what conduct amounts to a relevant practice, and in particular:

                           (a)

                           is it necessary that the taxing authority has made a clear and unambiguous statement that comparator supplies would be treated as exempt from VAT;

                           (b)

                           is it relevant that at the time the taxing authority made any statement it had an incomplete or incorrect understanding of facts relevant to the correct VAT treatment of the comparator supplies; and

                           (c)

                           is it relevant that VAT was not accounted for by the taxpayer, or sought by the taxing authority, in respect of the comparator supplies, but that the taxing authority has subsequently sought to recover that VAT, subject to the normal domestic limitation periods?

               4.

               If the difference in fiscal treatment results from a consistent practice of the domestic tax authorities based on a generally accepted understanding of the true meaning of domestic legislation, does it make any difference to the existence of a breach of the principle of fiscal neutrality if:

                           (i)

                           the tax authorities subsequently change their practice;

                           (ii)

                           a national court subsequently holds that the amended practice reflects the correct meaning of domestic legislation;

                           (iii)

                           the Member State is precluded by domestic and/or European law principles, including legitimate expectation, estoppel, legal certainty and non-retroactivity, and/or by limitation periods from collecting the VAT on the supplies previously regarded as exempt?

      (1)  Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment
   OJ L 145, p. 1


title: Case C-104/10: Judgment of the Court (Second Chamber) of 21 July 2011 (reference for a preliminary ruling from the High Court (Ireland)) — Patrick Kelly v National University of Ireland (University College, Dublin) (Directives 76/207/EEC, 97/80/EC and 2002/73/EC — Access to vocational training — Equal treatment for men and women — Rejection of candidature — Access of an applicant for vocational training to information on the qualifications of the other applicants)

text:
               10.9.2011

               EN

               Official Journal of the European Union

               C 269/12

         Judgment of the Court (Second Chamber) of 21 July 2011 (reference for a preliminary ruling from the High Court (Ireland)) — Patrick Kelly v National University of Ireland (University College, Dublin)
   (Case C-104/10) (1)

   (Directives 76/207/EEC, 97/80/EC and 2002/73/EC - Access to vocational training - Equal treatment for men and women - Rejection of candidature - Access of an applicant for vocational training to information on the qualifications of the other applicants)
   2011/C 269/19
   Language of the case: English

      Referring court

   High Court of Ireland

      Parties to the main proceedings

      Applicant: Patrick Kelly

      Defendant: National University of Ireland (University College, Dublin)

      Re:

   Reference for a preliminary ruling — High Court of Ireland — Interpretation of Article 4(1) of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (OJ 1998 L 14, p. 6), Article 4 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions (OJ 1976 L 39, p. 40) and Article 3 of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Council Directive 76/207/EEC (OJ 2002 L 269, p. 15) — Candidate who failed to obtain a place in a vocational training course and who claims that there has been an infringement of the principle of equal treatment — Request for information concerning the qualifications of the other candidates

      Operative part of the judgment

               1.

               Article 4(1) of Council Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex must be interpreted as meaning that it does not entitle an applicant for vocational training, who believes that his application was not accepted because of an infringement of the principle of equal treatment, to information held by the course provider on the qualifications of the other applicants for the course in question, in order that he may establish ‘facts from which it may be presumed that there has been direct or indirect discrimination’ in accordance with that provision.
               Nevertheless, it cannot be ruled out that a refusal of disclosure by the defendant, in the context of establishing such facts, could risk compromising the achievement of the objective pursued by that directive and thus depriving Article 4(1) thereof in particular of its effectiveness. It is for the national court to ascertain whether that is the case in the main proceedings.

               2.

               Article 4 of Council Directive 76/207/EEC of 9 February 1976 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions and Article 1(3) of Directive 2002/73/EC of the European Parliament and of the Council of 23 September 2002 amending Directive 76/207 must be interpreted as meaning that they do not entitle an applicant for vocational training to information held by the course provider on the qualifications of the other applicants for the course in question, either because he believes that he has been denied access to vocational training on the basis of the same criteria as the other candidates and discriminated against on grounds of sex, referred to in Article 4 of Directive 76/207, or because that applicant complains that he was discriminated against on the grounds of sex, referred to in Article 1(3) of Directive 2002/73, in terms of accessing that vocational training.

               3.

               Where an applicant for vocational training can rely on Directive 97/80 in order to obtain access to information held by the course provider on the qualifications of the other applicants for the course in question, that entitlement to access can be affected by rules of European Union law relating to confidentiality.

               4.

               The obligation contained in the third paragraph of Article 267 TFEU does not differ according to whether a Member State has an adversarial or an inquisitorial legal system.

      (1)  OJ C 134, 22.5.2010.


22.1.2000             EN                      Official Journal of the European Communities                                   C 20/29
       Removal from the register of Case T-201/98 (1)                    the register of Case T-98/99, UPS Europe NV/SA v Commission
                                                                         of the European Communities.
                        (2000/C 20/64)
                                                                         (1) OJ C 174 of 19.6.1999.
                   (Language of the case: French)
By order of 8 November 1999, the President of the Fifth
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of
Case T-201/98, Rumpstad ATM B.V. v Commission of the
European Communities.                                                           Removal from the register of Case T-107/99 (1)
(1) OJ C 71 of 13.3.1999.                                                                        (2000/C 20/67)
                                                                                (Language of the case: French)
                                                                         By order of 8 November 1999, the President of the Second
       Removal from the register of Case T-76/99 (1)                     Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register of
                        (2000/C 20/65)                                   Case T-107/99, Maria Soledad Garcia Retortillo v Council of
                                                                         the European Union.
                  (Language of the case: German)
                                                                         (1) OJ C 226 of 7.8.1999.
By order of 18 November 1999, the President of the First
Chamber of the Court of First Instance of the European
Communities has ordered the removal from the register of
Case T-76/99: Jütro Konservenfabrik GmbH & Co KG v
Commission of the European Communities.
(1) OJ C 174 of 19.6.1999.
                                                                                Removal from the register of Case T-117/99 (1)
                                                                                (2000/C 20/68)
       Removal from the register of Case T-98/99 (1)                                        (Language of the case: French)
                        (2000/C 20/66)                                   By order of 8 November 1999, the President of the Fifth
                                                                         Chamber of the Court of First Instance of the European
                                                                         Communities has ordered the removal from the register
                  (Language of the case: English)                        of Case T-117/99, Natalia Martinez Paramo and Others v
                                                                         Commission of the European Communities.
By order of 29 October 1999, the President of the Fourth
Chamber, Extended Composition, of the Court of First Instance
of the European Communities has ordered the removal from                 (1) OJ C 204 of 17.7.1999.


title: Case T-245/08: Action brought on 20 June 2008 — Iranian Tobacco v OHIM — AD Bulgartabac (TIR 20 FILTER CIGARETTES)

text:
               30.8.2008

               EN

               Official Journal of the European Union

               C 223/51

         Action brought on 20 June 2008 — Iranian Tobacco v OHIM — AD Bulgartabac (TIR 20 FILTER CIGARETTES)
   (Case T-245/08)
   (2008/C 223/90)
   Language in which the application was lodged: German
   Parties

      Applicant: Iranian Tobacco Company (Tehran, Iran) (represented by: M. Beckensträter, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: AD Bulgartabac Holding (Sofia, Bulgaria)
   Form of order sought

               —

               annul the decision of the First Board of Appeal of 11 April 2008 (Case R 708/2007-1), notified on 21 April 2008;

               —

               order the third party to pay the refundable costs, including those of the main proceedings and of the defendant;

               —

               in the alternative, annul the decision of 11 April 2008 and that of 7 March 2007 — 1414C — and hold the third party's application of 8 November 2005 to be inadmissible.

         Pleas in law and main arguments

      Registered Community trade mark in respect of which a declaration of invalidity has been sought: the figurative mark ‘TIR 20 FILTER CIGARETTES’ for goods in Class 34 (Community trade mark No 400 804).

      Proprietor of the Community trade mark: the applicant.

      Applicant for the declaration of invalidity: AD Bulgartabac Holding.

      Decision of the Cancellation Division: cancellation of the relevant Community trade mark.

      Decision of the Board of Appeal: dismissal of the applicant's appeal.

      Pleas in law: conditions of admissibility to be taken into consideration ex officio by OHIM concerning AD Bulgartabac Holding's application were not examined, contrary to Community law, to Regulation (EC) No 40/94 (1) and to other procedural principles.

      (1)  Council Regulation (EC) No 40/94 of 20 December 1993 on the Community trade mark (OJ 1994 L 11, p. 1).


title: Case T-82/08: Judgment of the General Court of 27 September 2012 — Guardian Industries and Guardian Europe v Commission (Competition — Agreements, decisions and concerted practices — Market for flat glass in the EEA — Decision finding an infringement of Article 81 EC — Price-fixing — Evidence of the infringement — Calculation of the amount of the fines — Exclusion of captive sales — Obligation to state the reasons on which the decision is based — Equal treatment — Mitigating circumstances)

text:
               17.11.2012

               EN

               Official Journal of the European Union

               C 355/19

         Judgment of the General Court of 27 September 2012 — Guardian Industries and Guardian Europe v Commission
   (Case T-82/08) (1)

   (Competition - Agreements, decisions and concerted practices - Market for flat glass in the EEA - Decision finding an infringement of Article 81 EC - Price-fixing - Evidence of the infringement - Calculation of the amount of the fines - Exclusion of captive sales - Obligation to state the reasons on which the decision is based - Equal treatment - Mitigating circumstances)
   2012/C 355/39
   Language of the case: English

      Parties

      Applicants: Guardian Industries Corp. (Dover, Delaware, United States of America); and Guardian Europe Sàrl (Dudelange, Luxembourg) (represented by: S. Völcker, F. Louis, A. Vallery, C. Eggers and H.-G. Kamann, lawyers)

      Defendant: European Commission (represented by: F. Castillo de la Torre and R. Sauer, acting as Agents)

      Re:

   Application for annulment of Commission Decision C(2007) 5791 final of 28 November 2007 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/39165 — Flat glass), in so far as it concerns the applicants, and for a reduction in the amount of the fine imposed on them by that decision.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Guardian Industries Corp. and Guardian Europe Sàrl to pay the costs.

      (1)  OJ C 107, 26.4.2008.


title: Case C-290/09: Order of the President of the Court of 23 February 2010 (reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna — Italy) — Telecom Italia SpA v Regione autonoma della Sardegna, opposing Space SpA and Passamonti Srl and Others

text:
               22.5.2010

               EN

               Official Journal of the European Union

               C 134/28

         Order of the President of the Court of 23 February 2010 (reference for a preliminary ruling from the Tribunale Amministrativo per la Sardegna — Italy) — Telecom Italia SpA v Regione autonoma della Sardegna, opposing Space SpA and Passamonti Srl and Others
   (Case C-290/09) (1)

   2010/C 134/45

      Language of the case: Italian

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 233, 26.9.2009.


title: Case T-212/01: Action brought on 14 September 2001 by Arnaldo Lucaccioni against the Commission of the European Communities

text:
24.11.2001             EN                     Official Journal of the European Communities                                      C 331/25
The applicant is challenging the Commission’s decision declar-           European Communities on 14 September 2001 by Arnaldo
ing the notified concentration to be incompatible with the               Lucaccioni, resident in St-Leonard-on-Sea (United Kingdom),
common market and the EEA Agreement.                                     represented by Juan Ramon Iturriagagoitia, lawyer.
In support of its claim, the applicant submits that the decision
did not correctly apply the test laid down in Article 2                  The applicant claims that the Court should:
of Regulation (EEC) No 4064/89 for declaring a merger
incompatible with the common market. According to the
applicant the decision failed to address, the question of the            Primarily:
creation or strengthening of a dominant position and the
concept of a significant barrier to competition.
                                                                         —     annul the Commission’s decision of 16 November 2000,
The decision did not, according to the applicant, provide
sufficient evidence of the alleged practices of mixed bundling           —     award a total of EUR 125 000 as compensation for
of aircraft engines with avionics and non-avionics products.                   damage suffered,
Nor was the decision supported by an economic model
showing the negative effect of that practice on competition.
The decision did not provide evidence either of the incompati-           —     order the defendant to pay the costs.
bility with the common market of the alleged vertical inte-
gration through the applicants leasing companies for commer-
cial and corporate jets and through Honeywell’s supply of                Alternatively:
engine starters to engine manufacturers. Nor was the alleged
horizontal overlap between the two companies on the markets              —     acknowledge that Article 14 of the Provisions for the
for large regional jet engines, corporate jet engines and small                Interpretation of the Rules on Insurance Against the Risk
marine gas turbines supported by sufficient evidence.                          of Accident and of Occupational Disease is unlawful.
The applicant further points out that the commitments
proposed by the applicant to enter into were rejected by the
Commission without proper analysis.
                                                                         Pleas in law and main arguments
The applicant also states that the Commission now paints an
entirely different picture of the market from that contained in
a decision 18 months earlier concerning the same market and              The applicant in the present action, who was granted perma-
one of the same parties to the merger.                                   nent invalidity at a rate of 130 % by decision of 15 April 1994,
                                                                         objects to the Appointing Authority’s refusal to recognise an
                                                                         aggravation of his occupational illness liable to give rise to
The applicant submits, in addition, that its rights of defence
                                                                         permanent invalidity pursuant to Article 14 of the Provisions
were not respected, in that the Commission did not give access
                                                                         for the Interpretation of the Rules on Insurance Against the
to all relevant documents, or gave access to other documents
                                                                         Risk of Accident and of Occupational Disease (the Provisions).
without allowing a sufficient period of time in which to review
them. The applicant also claims that its right to be heard was
not respected at the start of the investigation.
                                                                         In support of his claims the applicant puts forward the
                                                                         following pleas:
                                                                         —     Invalidity of Article 14 of the Provisions, which stipulates
                                                                               that accumulated allowances may not exceed 100 %, in
Action brought on 14 September 2001 by Arnaldo                                 so far as the Staff Regulations Committee does not have
Lucaccioni against the Commission of the European                              sufficient powers unconditionally recognised in the Staff
                          Communities                                          Regulations or the Rules,
                        (Case T-212/01)
                                                                         —     Breach of the principles of sound administration, duty to
                                                                               have regard for the interests of officials, protection of
                        (2001/C 331/41)                                        legitimate expectations and non-discrimination,
                   (Language of the case: French)
                                                                         —     Misuse of powers in this case.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the


title: Case T-321/13: Action brought on 13 June 2013 — Adorisio and Others v Commission

text:
               10.8.2013

               EN

               Official Journal of the European Union

               C 233/12

         Action brought on 13 June 2013 — Adorisio and Others v Commission
   (Case T-321/13)
   2013/C 233/21
   Language of the case: English

      Parties

      Applicants: Stefania Adorisio (Roma, Italy) and 367 others (represented by: F. Sciaudone, L. Dezzani, D. Contini, R. Sciaudone and S. Frazzani, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicants claim that the Court should:

               —

               Annul the Commission’s decision of 22 February 2013 (C(2013) 1053 final), relating to State aid SA.35382 (2013/N) — The Netherlands (Rescue SNS REAAL 2013), (OJ 2013 C 104, p. 3);

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

   In support of the action, the applicants rely on five pleas in law.

               1.

               First plea in law, alleging infringement Article 107(3)(b) TFEU and manifest error of assessment, as:

                           —

                           The contested aid measures are not related to exceptional circumstances, but rather to SNS REAAL’s management failure and poor business skills;

                           —

                           The alleged disturbance to the Dutch economy is not serious. The Dutch authorities have not proved the existence of serious social and economic difficulties;

                           —

                           The alleged disturbance does not concern even one entire economic sector, let alone the entire economy of the Netherlands. Indeed, the Dutch Government has not demonstrated that SNS Bank’s bankruptcy would have had systemic implications on the Dutch financial system and, more globally, on the whole Dutch economy and, in this respect, has not provided a quantitative estimate of the potential consequences of an insolvency of the bank for the entire economy.

               2.

               Second plea in law, alleging violation of Article 4(3) of Council Regulation (EC) No 659/99 (1), as the Commission’s decision contains a number of conditions imposed by the Commission and aimed at amending the notified aid measures, which is contrary to Article 4(3) of Council Regulation (EC) No 659/99. Indeed, under such provision, the Commission is not granted, in the preliminary investigation phase, the power to intervene on the State aid measure notified and change it through conditions or other requests imposed on the Member State.

               3.

               Third plea in law, alleging violation of Article 4(4) of Council Regulation (EC) No 659/99, as there were elements and circumstances proving that there were serious doubts about the compatibility of the measures with the common market, such as the inconsistency between the Commission’s statement ‘that Dutch banks performed well in the latest round of EBA (NB: European Banking Authority) stress tests thanks to a favourable weighting of risk-weighted assets (including mortgage loans) and should be able to withstand a heightened level of defaults’ and the passive acceptance of the Dutch authorities’ argument that the Dutch banking sector is instead weak and that the use of the Dutch DGS (Deposit Guarantee Scheme) would have worsened the sector, or the fact that the contested decision contains conditions which represent another clear indication that the opening of the formal investigation procedure was necessary.

               4.

               Fourth plea in law, alleging violation of the applicants’ rights, as:

                           —

                           There is no evidence that the applicants’ complaint against the State aid measures was the object of any investigation and analysis. Indeed it was not referred to in the contested decision;

                           —

                           The applicants were not informed in any way of the contested decision.

               5.

               Fifth plea in law, alleging violation of Article 17 of the Charter of Fundamental Rights of the European Union, as:

                           —

                           The application of State aid rules cannot violate other EU rights, such as the right to property. In the instant case, the Commission could not rely on expropriation of investments without even analysing if that act was being carried out according to the law. Expropriation is per se a violation of the right to property and the Commission could not ignore this circumstance in its assessment;

                           —

                           The Commission should have verified the conditions and terms of such expropriation, in order to decide if that was an element that it could rely on in assessing the aid measures.

      (1)  Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ 1999 L 83, p. 1)


title: Case C-491/09: Order of the President of the Court of 6 April 2010 — European Commission v Kingdom of Belgium

text:
               17.7.2010

               EN

               Official Journal of the European Union

               C 195/16

         Order of the President of the Court of 6 April 2010 — European Commission v Kingdom of Belgium
   (Case C-491/09) (1)

   2010/C 195/24

      Language of the case: French

   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 24, 30.1.2010.


title: Case C-292/15: Judgment of the Court (Fourth Chamber) of 27 October 2016 (request for a preliminary ruling from the Vergabekammer Südbayern — Germany) — Hörmann Reisen GmbH v Stadt Augsburg, Landkreis Augsburg (Reference for a preliminary ruling — Public procurement — Public passenger transport services by bus — Regulation (EC) No 1370/2007 — Article 4(7) — Subcontracting — Requirement that the operator perform a major part of the public passenger transport services itself — Scope — Article 5(1) — Contract-award procedure — Award of the contract in accordance with Directive 2004/18/EC)

text:
               9.1.2017

               EN

               Official Journal of the European Union

               C 6/20

         Judgment of the Court (Fourth Chamber) of 27 October 2016 (request for a preliminary ruling from the Vergabekammer Südbayern — Germany) — Hörmann Reisen GmbH v Stadt Augsburg, Landkreis Augsburg
   (Case C-292/15) (1)

   ((Reference for a preliminary ruling - Public procurement - Public passenger transport services by bus - Regulation (EC) No 1370/2007 - Article 4(7) - Subcontracting - Requirement that the operator perform a major part of the public passenger transport services itself - Scope - Article 5(1) - Contract-award procedure - Award of the contract in accordance with Directive 2004/18/EC))
   (2017/C 006/24)
   Language of the case: German

      Referring court

   Vergabekammer Südbayern

      Parties to the main proceedings

      Applicant: Hörmann Reisen GmbH

      Defendant: Stadt Augsburg, Landkreis Augsburg

      Operative part of the judgment

               1.

               Article 5(1) of Regulation (EC) No 1370/2007 of the European Parliament and of the Council of 23 October 2007 on public passenger transport services by rail and by road and repealing Council Regulations (EEC) Nos 1191/69 and 1107/70 must be interpreted as meaning that, in a contract award procedure for public passenger transport services by bus, Article 4(7) of that regulation remains applicable to that contract;

               2.

               Article 4(7) of Regulation No 1370/2007 must be interpreted as meaning that it does not preclude the contracting authority from setting at 70 % the proportion of self-provision by the operator responsible for the administration and performance of a contract for public passenger transport by bus, such as that at issue in the main proceedings.

      (1)  OJ C 294, 7.9.2015.


title: Case T-571/11: Action brought on 7 November 2011 — El Corte Inglés v OHIM

text:
               14.1.2012

               EN

               Official Journal of the European Union

               C 13/19

         Action brought on 7 November 2011 — El Corte Inglés v OHIM
   (Case T-571/11)
   2012/C 13/41
   Language in which the application was lodged: Spanish

      Parties

      Applicant: El Corte Inglés, SA (Madrid, Spain) (represented by: E. Seijo Veiguela, lawyer, and J. L. Rivas Zurdo, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Groupe Chez Gerard Restaurants Ltd (London, United Kingdom)

      Form of order sought

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 July 2011 in Case R 1946/2010-1;

               —

               Order the defendant and, where appropriate, the other party to the proceedings to pay the costs, if that other party appears and contests the action.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Groupe Chez Gerard Restaurants Ltd.

      Community trade mark concerned: Word mark ‘CLUB GOURMET’ for goods in Classes 16, 21, 29, 30, 32 and 33.

      Proprietor of the mark or sign cited in the opposition proceedings: Applicant.

      Mark or sign cited in opposition: National figurative mark ‘CLUB DEL GOURMET, EN … El Corte Inglés’, applications for the national word mark ‘EL SITIO DEL GOURMET’ and for the national and Community trade marks ‘CLUB DEL GOURMET’ for services in Class 35.

      Decision of the Opposition Division: Rejection of the opposition.

      Decision of the Board of Appeal: Dismissal of the appeal.

      Pleas in law: Infringement of Article 8(1)(b) and Article 8(3) of Regulation No 207/2009 as there is a likelihood of confusion between the trade marks at issue.


title: Case T-550/14: Action brought on 23 July 2014  — Volkswagen v OHIM (COMPETITION)

text:
               22.9.2014

               EN

               Official Journal of the European Union

               C 329/24

         Action brought on 23 July 2014 — Volkswagen v OHIM (COMPETITION)
   (Case T-550/14)
   2014/C 329/33
   Language of the case: German

      Parties

      Applicant: Volkswagen AG (Wolfsburg, Germany) (represented by U. Sander, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 15 May 2014 in Case R 2082/2013-1;

               —

               Order the defendant to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the word mark ‘COMPETITION’ for goods and services in Classes 12, 28, 35 and 37 — Community trade mark application No 1 1 7 69  171

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

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


title: Case T-117/10: Judgment of the General Court of 28 March 2014 — Italy v Commission (ERDF — Reduction of financial assistance — 2000 - 2006 regional operational programme for the region of Apulia (Italy) covered by objective No 1 — Serious failings in the management or control systems which could lead to systemic irregularities — Partnership principle — Proportionality — Article 39(3)(b) of Regulation (EC) No 1260/1999 — Articles 4, 8, 9 and 10 of Regulation (EC) No 438/2001 — Duty to state reasons — Lack of competence)

text:
               19.5.2014

               EN

               Official Journal of the European Union

               C 151/17

         Judgment of the General Court of 28 March 2014 — Italy v Commission
   (Case T-117/10) (1)

   ((ERDF - Reduction of financial assistance - 2000 - 2006 regional operational programme for the region of Apulia (Italy) covered by objective No 1 - Serious failings in the management or control systems which could lead to systemic irregularities - Partnership principle - Proportionality - Article 39(3)(b) of Regulation (EC) No 1260/1999 - Articles 4, 8, 9 and 10 of Regulation (EC) No 438/2001 - Duty to state reasons - Lack of competence))
   2014/C 151/21
   Language of the case: Italian

      Parties

      Applicant: Italian Republic (represented by: G. Palmieri, Agent, and by P. Gentili, avvocato dello Stato)

      Defendant: European Commission (represented by: A. Steiblytė and D. Recchia, Agents)

      Re:

   Application to annul Commission Decision C (2009) 10350 final of 22 December 2009 reducing the financial assistance from the European Regional Development Fund allocated to the Italian Republic pursuant to Commission Decision C(2000) 2349 of 8 August 2000, approving the regional operational programme POR Puglia, in respect of the period 2000-2006, under objective No 1.
   The Court:

               1.

               Dismisses the action;

               2.

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

      (1)  OJ C 148, 5.6.2010.


               11.9.2004

               EN

               Official Journal of the European Union

               C 228/43

         Removal from the Register of Case T-306/99 (1)

   (2004/C 228/99)

      (Language of the case: Dutch)

   By order of 11 May 2004, the President of the Second Chamber (Extended Composition) of the Court of First Instance of the European Communities has ordered the removal from the Register of Case T-306/99, Oliecentrum Nederland B.V., supported by the Kingdom of the Netherlands v Commission of the European Communities.

      (1)  OJ C 63, 4.3.2000.


title: Case F-45/10: Action brought on 11 June 2010 — Kaser/Commission

text:
               14.8.2010

               EN

               Official Journal of the European Union

               C 221/60

         Action brought on 11 June 2010 — Kaser/Commission
   (Case F-45/10)
   ()
   2010/C 221/96
   Language of the case: English

      Parties

      Applicant: Ferdinand Kaser (Brussels, Belgium) (represented by: M. Schober, lawyer)

      Defendant: European Commission

      The subject matter and description of the proceedings

   First, annulment of the Decision of the European Commission CMS 07/046 removing applicant from his post, without reduction of the pension rights, witch took effect on 15 August 2009 and the annulment of all decisions taken against the applicant in the period between September 2003 until the removing from the post and, second, a claim for damages.

      Form of order sought

   The applicant claim that the Court should:

               —

               Annul the Decision CMS 07/046 due to harassment, mismanagement and the abuse of the fundamental right to be heard;

               —

               annul all decisions taken by the Appointing Authority against the applicant between the period September 2003 until the removing from the post due to harassment and mismanagement due to the abuse of the right of the applicant to be heard;

               —

               enable a hearing of the applicant according to Article 7(1) and Article 24 of the Staff Regulations, and to refer to the submitted requests in February 2008 and March 2008;

               —

               grant a symbolic compensation of one (1) Euro to the applicant in order to compensate his moral and professional prejudice he suffered as exposed in the present complaint, as far as the objective of such a complaint is not money but recognition of dignity and professional reputation of the applicant.


title: Action brought on 21 May 1996 by the National Farmers' Union, International Traders Ferry Limited, UK Genetics, R. S. and E. M. Wright Limited, and Prosper de Mulder Limited against the Commission of the European Communities (Case T-76/96)

text:
No C 210/22         1 EN |                Official Journal of the European Communities                                    20 . 7 . 96
Action brought on 21 May 1996 by the National Farmers'               The applicants submit that the Decision is unlawful on the
Union, International Traders Ferry Limited, UK Genetics,             following grounds .
R. S. and E. M. Wright Limited, and Prosper de Mulder
Limited against the Commission of the European
                           Communities                               — The Commission lacked competence to adopt the
                        ( Case T-76/96 )                                 Decision . The Decision has its purported legal basis in
                          ( 96/C 210/51 )                                Council Directives 90/425/EEC, concerning veterinary
                                                                         and zootechnical checks applicable in intra-Community
                                                                         trade in certain live animals and products, and
                (Language of the case: English)                          89/662/EEC, concerning veterinary checks in
                                                                         intra-Community trade . Those Directives were adopted
An action against the Commission of the European                         on the basis of Article 43 of the EEC Treaty, which gives
Communities was brought before the Court of First                        the Council, but not the Commission, competence to act
Instance of the European Communities on 21 May 1996 by                   in agricultural fields . The limits of the Commission's
the National Farmers' Union, International Traders Ferry                 competence, if any, to adopt the Decision are therefore
Limited, UK Genetics, R. S. and E. M. Wright Limited, and                to be found in the two Directives, which are concerned
Prosper de Mulder Limited, all represented by Stuart Isaacs              only with the protection of animal health and human
QC and Clive Lewis , Barristers, instructed by Burges                    health and apply only to intra-Community trade . The
Salmon, Solicitors, with an address for service in                       contested Decision was adopted not because it was
Luxembourg at the office of Elvinger Hoss & Prussen , BP                 intended to protect against any serious hazard to public
425 .                                                                    health but because of 'serious concern among
                                                                         consumers'. Furthermore, it also prohibits exports from
                                                                         the United Kingdom to third countries in order ' to
The applicants claim that the Court should :                             prevent deflections of trade '. However, such a ban goes
                                                                         well beyond what might have been necessary in order to
— déclaré Commission Décision 96/239/EC void, and                        prevent the items referred to in Article 1 of the Decision
                                                                         from being exported from the United Kingdom to a
— order the Commission to pay the applicants' costs ;                    third country and then imported back into the
                                                                         Community.
in the alternative,
— declare that the Decision is void in
                                                                     — In adopting the Decision, the Commission misused its
                                                                         powers . It is clear that the main purpose of the Decision
    — its application to exports to third countries,                     was not to protect against any serious hazard to public
        and/or
                                                                         health but to allay unspecified concern among
                                                                         consumers .
    — in its application to all or certain of the following:
        ( a ) bovine semen,
                                                                     — The Decision infringes the fundamental principle of
        ( b ) bovine embryos,                                            proportionality. It is disproportionate because it was not
                                                                         necessary or appropriate to the aim of allaying consumer
        (c ) live calves under six months,                               uncertainty or for the protection of human health ( if that
        ( d ) fresh bovine meat from animals aged less than              were indeed the aim pursued by the Commission,
              two and a half years at date of slaughter,                 contrary to the recitals in the Decision ). A worldwide
                                                                         ban was not necessary, given that Community and
        (e ) tallow,                                                     United Kingdom measures for protection against BSE
                                                                         already existed and that new information provided by
        ( f) gelatine .                                                  the United Kingdom did not suggest that there was any
                                                                         increased or changed risk arising from the consumption
Pleas in law and main arguments                                          of beef or beef products . In particular, the earlier
                                                                          Commission Decisions regulating the export of live
The applicants, companies engaged respectively in the                    calves, bovine embryos and meat products only applied
transhipment of non-pedigree livestock from the United                   to exports from the United Kingdom to other Member
Kingdom to the rest of the European Union, in the export                  States . No action was considered necessary to prohibit
and import of bovine genetics, in the rearing of cattle                  exports to third countries . No evidence has been
exclusively for slaughter for the Italian market, and in the             produced to suggest that it was necessary or appropriate
rendering of animal by-products and waste, and a trade                    now to prohibit these exports for reasons of public
association representing the majority of farmers in England               health or to allay consumer uncertainty in the European
and Wales, challenge Commission Decision 96/239/EC on                     Union .
emergency measures to protect against bovine spongiform
encephalopathy . Article 1 of the Decision prohibits the
United Kingdom from exporting from its territory to the
other Member States and to third countries the items
specified in its provisions .


title: Case C-588/10: Judgment of the Court (Second Chamber) of 26 January 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny Izba Finansowa Wydzial I — Poland) — Minister Finansów v Kraft Foods Polska SA (Taxation — VAT — Directive 2006/112/EC — Article 90(1) — Price reduction after the transaction was effected — National legislation which makes reduction in the taxable amount subject to the requirement that the supplier of the goods or services be in possession of acknowledgment of receipt of a correcting invoice by the purchaser of the goods or services — Principle of VAT neutrality — Principle of proportionality)

text:
               10.3.2012

               EN

               Official Journal of the European Union

               C 73/5

         Judgment of the Court (Second Chamber) of 26 January 2012 (reference for a preliminary ruling from the Naczelny Sąd Administracyjny Izba Finansowa Wydzial I — Poland) — Minister Finansów v Kraft Foods Polska SA
   (Case C-588/10) (1)

   (Taxation - VAT - Directive 2006/112/EC - Article 90(1) - Price reduction after the transaction was effected - National legislation which makes reduction in the taxable amount subject to the requirement that the supplier of the goods or services be in possession of acknowledgment of receipt of a correcting invoice by the purchaser of the goods or services - Principle of VAT neutrality - Principle of proportionality)
   2012/C 73/07
   Language of the case: Polish

      Referring court

   Naczelny Sąd Administracyjny Izba Finansowa Wydzial I

      Parties to the main proceedings

      Applicant: Minister Finansów

      Defendant: Kraft Foods Polska SA

      Re:

   Reference for a preliminary ruling — Naczelny Sąd Administracyjny — Interpretation of Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (OJ 2006 L 347, p. 1) — Taxable amount — Price reduction after the transaction was effected — National legislation which makes reduction in the taxable amount subject to the other party to the contract obtaining and confirming receipt of a corrected invoice

      Operative part of the judgment

   The requirement that, in order to be entitled to reduce the taxable amount as set out in the initial invoice, the taxable person must be in possession of acknowledgment of receipt of a correcting invoice by the purchaser of the goods or services constitutes a condition for the purpose Article 90(1) of Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax.
   The principles of the neutrality of value added tax and proportionality do not, in principle, preclude such a requirement. However, where it is impossible or excessively difficult for the taxable person who is a supplier of goods or services to obtain such acknowledgment of receipt within a reasonable period of time, he cannot be denied the opportunity of establishing, by other means, before the national tax authorities of the Member State concerned, first, that he has taken all the steps necessary in the circumstances of the case to satisfy himself that the purchaser of the goods or services is in possession of the correcting invoice and is aware of it and, second, that the transaction in question was in fact carried out in accordance with the conditions set out in the correcting invoice.

      (1)  OJ C 89, 19.3.2011.


title: Case C-565/08: Action brought on 19 December 2008 — Commission of the European Communities v Italian Republic

text:
               7.3.2009

               EN

               Official Journal of the European Union

               C 55/12

         Action brought on 19 December 2008 — Commission of the European Communities v Italian Republic
   (Case C-565/08)
   (2009/C 55/19)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa and L. Prete, acting as Agents)

      Defendant: Italian Republic
   Forms of order sought

               —

               Declare that the Italian Republic has failed to fulfil its obligations under Articles 43 EC and 49 EC by adopting provisions fixing compulsory ceilings for lawyers' fees;

               —

               Order the Italian Republic to pay the costs.

         Pleas in law and main arguments
   The capping of the fees that may be charged for the court-based and out-of-court services of lawyers constitutes a restriction on the freedom of establishment within the meaning of Article 43 EC, and also a restriction on the freedom to provide services within the meaning of Article 49 EC. Indeed, a compulsory scale of fee ceilings that must be applied, irrespective of the quality of the service provided, the work required and the costs incurred, may make the Italian market in legal services unattractive for foreign professionals. Lawyers established in other Member States are therefore discouraged from establishing themselves in Italy or providing their services there on a temporary basis.
   First, having to adapt to a new (and very complex) fee regime entails additional costs that may make it more difficult to exercise the fundamental freedoms recognised by the Treaty.
   Secondly, fee ceilings represent a further restriction on the free movement of legal services in the internal market, since they prevent the quality of the activities carried out by lawyers established in Member States other than Italy from being correctly remunerated; this means that some lawyers, who normally ask for higher fees than those established under the Italian legislation on the basis of the Italian market, are deterred from providing their services in Italy on a temporary basis or from establishing themselves in that State.
   Lastly, the rigidity of the Italian fee regime prevents lawyers (including those established abroad) from making special offers in specific situations and/or to specific clients: for example, a package of given legal services for a fixed fee, or a number of legal services provided in several Member States at a common rate. The Italian legislation may therefore lead the situation of lawyers established abroad to be less competitive since it deprives them of an effective means of penetrating the Italian legal market.
   In addition, the disputed measure appears neither suitable for attaining the general interest objectives referred to by the Italian authorities, nor the least restrictive means of achieving those objectives. In particular, the disputed measure does not appear to be a suitable means of ensuring that the less affluent have access to justice, or that the recipients of legal services are protected, or for ensuring the proper administration of justice. Nor does the measure appear proportionate, since there are other measures which appear to be appreciably less restrictive for lawyers established abroad, and equally (if not more) suitable for achieving the protection objectives relied on by the Italian authorities.
   Lastly, the Italian authorities have not explained what, if any, alternative measures, less restrictive of lawyers established in other Member States, have been considered; nor have they set out the reasons why the general interests pursued are not already protected by the provisions in force in the other Member States of the Community for governing the legal profession.


title: Joined Cases T-115/09 and T-116/09: Judgment of the General Court of (Fourth Chamber) of 14 February 2012 — Electrolux and Whirlpool v Commission (State aid — Restructuring aid for a manufacturer of large home appliances notified by the French Republic — Decision declaring the aid compatible with the common market subject to conditions — Manifest errors of assessment — Guidelines on State aid for rescuing and restructuring firms in difficulty)

text:
               24.3.2012

               EN

               Official Journal of the European Union

               C 89/21

         Judgment of the General Court of (Fourth Chamber) of 14 February 2012 — Electrolux and Whirlpool v Commission
   (Joined Cases T-115/09 and T-116/09) (1)

   (State aid - Restructuring aid for a manufacturer of large home appliances notified by the French Republic - Decision declaring the aid compatible with the common market subject to conditions - Manifest errors of assessment - Guidelines on State aid for rescuing and restructuring firms in difficulty)
   2012/C 89/33
   Language of the case: English

      Parties

      Applicants: Electrolux AB (Stockholm, Sweden) (represented by: F. Wijckmans and H. Burez, lawyers) (Case T-115/09); and Whirlpool Europe BV (Breda, Netherlands) (represented: initially by F. Tuytschaever and B. Bellen, and subsequently by H. Burez and F. Wijckmans, lawyers)

      Defendant: European Commission (represented by: L. Flynn and C. Giolito, Agents)

      Interveners in support of the defendant: French Republic (represented: initially by G. de Bergues and A.-L. Vendrolini, and subsequently by G. de Bergues and J. Gstalter, Agents); Fagor France SA (Rueil-Malmaison, France) (represented by J. Derenne and A. Müller-Rappard, lawyers)

      Re:

   Annulment of the Commission Decision of 21 October 2008 on State aid C 44/2007 (ex N 460/2007) which France is planning to implement for FagorBrandt (OJ 2009 L 160, p. 11.

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision 2009/485/EC of 21 October 2008 on State aid No C 44/07 (ex N 460/07) which France is planning to implement for FagorBrandt;

               2.

               Orders the European Commission to bear its own costs and to pay those of Electrolux AB and Whirlpool Europe BV;

               3.

               Orders the French Republic and Fagor France SA to bear their own costs.

      (1)  OJ C 113, 16.5.2009.


title: Case T-883/16 R: Order of the President of the General Court of 21 July 2017 — Poland v Commission (Application for interim measures — Internal market in natural gas — Directive 2009/73/EC — Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation — Commission decision amending the exemption from the EU requirements — Application for a stay of execution of a measure — Lack of any urgency)

text:
               4.9.2017

               EN

               Official Journal of the European Union

               C 293/34

         Order of the President of the General Court of 21 July 2017 — Poland v Commission
   (Case T-883/16 R)
   ((Application for interim measures - Internal market in natural gas - Directive 2009/73/EC - Application by the Bundesnetzagentur for review of the exemption of the OPAL pipeline from the EU requirements for its operation - Commission decision amending the exemption from the EU requirements - Application for a stay of execution of a measure - Lack of any urgency))
   (2017/C 293/41)
   Language of the case: Polish

      Parties

      Applicant: Republic of Poland (represented by: B. Majczyna, M. Kawnik and K. Rudzińska, acting as Agents)

      Defendant: European Commission (represented by: O. Beynet and K. Herrmann, acting as Agents)

      Intervener in support of the applicant: Republic of Lithuania (represented by: D. Kriaučiūnas and R. Krasuckaitė, acting as Agents)

      Intervener in support of the defendant: Federal Republic of Germany (represented by: T. Henze and R. Kanitz, acting as Agents)

      Re:

   Request on the basis of Articles 278 TFEU and 279 TFEU seeking a stay of execution of Commission Decision C(2016) 6950 final of 28 October 2016 on review of the exemption of the OPAL pipeline from the requirements on third party access and tariff regulation granted under Directive 2003/55/EC.

      Operative part of the order

               1.

               The application for interim measures is rejected.

               2.

               The order of 23 December 2016 is revoked insofar as it relates to Case T-883/16 R.

               3.

               The costs are reserved.


title: Case C-404/11 P: Order of the Court of 2 February 2012 — Elf Aquitaine SA v European Commission (Appeal — Regulation (EC) No 1/2003 — Competition — Cartel — Sodium chlorate market — Concept of an ‘undertaking’ — Presumption of decisive influence — Scope of that presumption — Factors not capable of rebutting the presumption — Personal fine — Unlimited jurisdiction)

text:
               5.5.2012

               EN

               Official Journal of the European Union

               C 133/11

         Order of the Court of 2 February 2012 — Elf Aquitaine SA v European Commission
   (Case C-404/11 P) (1)

   (Appeal - Regulation (EC) No 1/2003 - Competition - Cartel - Sodium chlorate market - Concept of an ‘undertaking’ - Presumption of decisive influence - Scope of that presumption - Factors not capable of rebutting the presumption - Personal fine - Unlimited jurisdiction)
   2012/C 133/20
   Language of the case: French

      Parties

      Appellant: Elf Aquitaine SA (represented by: E. Morgan de Rivery and E. Lagathu, avocats)

      Other party to the proceedings: European Commission (represented by: E. Gippini Fournier and R. Sauer, acting as Agents)

      Re:

   Appeal brought against the judgment of the General Court (Second Chamber) of 17 May 2011 in Case T-299/08 Elf Aquitaine v Commission, by which the General Court dismissed the action brought by the applicant for annulment of Commission Decision C(2008) 2626 final of 11 June 2008 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case COMP/38.695 — Sodium chlorate) — Competition — Cartel — Infringement of the principles of conferral and proportionality — Manifestly erroneous interpretation — Infringement of the rights of the defence, of the principles of equality and equality of arms — Duty to state reasons — Illegality of the personal fine

      Operative part of the order

               1.

               The appeal is dismissed.

               2.

               Elf Aquitaine SA is ordered to pay the costs.

      (1)  OJ C 298, 8.10.2011.


title: Case C-414/06: Judgment of the Court (Fourth Chamber) of 15 May 2008 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Lidl Belgium GmbH & Co. KG v Finanzamt Heilbronn (Freedom of establishment — Direct taxation — Taking account of losses incurred by a permanent establishment situated in a Member State and belonging to a company which has its registered office in another Member State)

text:
               5.7.2008

               EN

               Official Journal of the European Union

               C 171/6

         Judgment of the Court (Fourth Chamber) of 15 May 2008 (reference for a preliminary ruling from the Bundesfinanzhof, Germany) — Lidl Belgium GmbH & Co. KG v Finanzamt Heilbronn
   (Case C-414/06) (1)

   (Freedom of establishment - Direct taxation - Taking account of losses incurred by a permanent establishment situated in a Member State and belonging to a company which has its registered office in another Member State)
   (2008/C 171/09)
   Language of the case: German
   Referring court
   Bundesfinanzhof
   Parties to the main proceedings

      Applicant: Lidl Belgium GmbH & Co. KG

      Defendant: Finanzamt Heilbronn
   Re:
   Preliminary ruling — Bundesfinanzhof — Interpretation of Articles 43 EC and 56 EC — Deduction from a German company's taxable profits of losses resulting from the activities of a permanent establishment in another Member State — Refusal of such deduction on the basis of a bilateral convention concluded with that other Member State for the purpose of preventing double taxation
   Operative part of the judgment
   Article 43 EC does not preclude a situation in which a company established in a Member State cannot deduct from its tax base losses relating to a permanent establishment belonging to it and situated in another Member State, to the extent that, by virtue of a double taxation convention, the income of that establishment is taxed in the latter Member State where those losses can be taken into account in the taxation of the income of that permanent establishment in future accounting periods.

      (1)  OJ C 326, 30.12.2006.