title: Case T-271/02: Action brought on 2 September 2002 by Österreichische Volksbanken-Aktiengesellschaft and Niederösterreichische Landesbank-Hypothekenbank AG against the Commission of the European Communities

text:
9.11.2002              EN                      Official Journal of the European Communities                                       C 274/33
The applicant also argues that the Commission’s assertion that            The applicant claims that the Court should:
the below-cost selling complained of arose as a result of an
aggressive rebate policy and that there is thus no causal link            —     annul the decision of the Third Board of Appeal of
between it and the applicant’s public service obligations is not                26 June 2002 in the appeal procedure R 206/2002-3;
based on any evidence and is clearly inaccurate. Further, the
Commission has exceeded its powers in the area of services in             —     order the defendant to pay the costs.
the general economic interest, as, according to the case-law, it
has no authority to decide on the level of costs or the efficiency
of the postal service provider.
                                                                          Pleas in law and main arguments
The applicant submits that the Commission has misapplied                  Community trade mark           Word mark ‘bestpartner’ — appli-
Article 87 and infringed the case-law on findings regarding aid           applied for:                   cation No 2 268 134
to undertakings providing services in the general economic
interest. The Commission has furnished no evidence that the               Goods or services:             Services in Classes 36, 38 and
decision on cross-subsidisation in favour of the business client                                         42 (inter alia, insurance, Internet
parcel service can be attributed to State-run bodies of the                                              services and data processing for
Federal Republic of Germany. Moreover the Commission has                                                 others)
disregarded the fact that a purely internal offsetting of losses
within an undertaking does not constitute aid, but is merely              Decision before         the    Refusal of registration by the
covered by Article 82. It has also disregarded the fact that the          Board of Appeal:               examiner
financing of temporary below-cost selling was an economically
sound decision.                                                           Decision of the Board of       Dismissal of appeal
                                                                          Appeal:
Finally, the applicant submits that the Commission has                    Pleas in law:                  —     No grounds for refusal under
infringed the principle of the right to a fair hearing.                                                        Article 7(1)(b) and (c) of
                                                                                Regulation (EC) No 40/
                                                                                94 ( 1);
( 1) Commission Decision 2001/354/EC of 20 March 2001 relating                                           —     No need to keep free.
     to a proceeding under Article 82 of the EC Treaty (Case COMP/
     35.141 Deutsche Post AG) (OJ 2001 L 125, p. 27).
                                                                          (1 ) Council Regulation (EC) No 40/94 of 20 December 1993 on the
                                                                               Community trade mark (OJ 1994 L 11, p. 1).
Action brought on 28 August 2002 by MLP Finanz-                           Action brought on 2 September 2002 by Österreichische
dienstleistungen AG against the Office for Harmonisation                  Volksbanken-Aktiengesellschaft and Niederösterreichi-
      in the Internal Market (Trade Marks and Designs)                    sche Landesbank-Hypothekenbank AG against the Com-
                                                                                mission of the European Communities
                         (Case T-270/02)                                                            (Case T-271/02)
                         (2002/C 274/58)                                                            (2002/C 274/59)
                                                                                (Language of the Case: German)
                   (Language of the case: German)
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
An action against the Office for Harmonisation in the Internal            European Communities on 2 September 2002 by Österreichi-
Market (Trade Marks and Designs) was brought before the                   sche Volksbanken-Aktiengesellschaft and Niederösterreichi-
Court of First Instance of the European Communities on                    sche Landesbank-Hypothekenbank AG, established in Vienna
28 August 2002 by MLP Finanzdienstleistungen AG, Heidel-                  and St. Pölten (Austria), represented by A. Ablasser, R. Roniger
berg (Germany), represented by W. Göpfert, lawyer.                        and R. Bierwagen, Lawyers.
 ---pagebreak--- C 274/34                 EN                    Official Journal of the European Communities                                      9.11.2002
The applicants claim that the Court should:                               In addition, the requirement under Article 81(1) EC that trade
                                                                          between States be affected is not met. The arrangements on
                                                                          the Austrian banking market were not capable of affecting
—     annul Article 1 of Commission Decision C(2002) 2091                 trade between States, and no fault can be attributed to the
      final of 11 June 2002 in Case COMP/36.571/D-1 —                     applicants with regard to that requirement since they could
      Austrian Banks, in so far as it relates to the applicants;          assume, in particular on the basis of the legal position in
                                                                          Austria at that time and the participation of State authorities,
                                                                          that their conduct was lawful under European cartel law too.
—     annul the first sentence of Article 2 of the decision in so         In determining the gravity of the infringement, the decision
      far as it relates to the applicants;                                fails to have regard to the fact that no binding arrangements
                                                                          in the sense of a price cartel were entered into, and not a single
—     annul Article 3 of the decision in so far as it relates to the      attenuating circumstance was taken into account.
      applicants or, in the alternative, reduce the fine imposed
      on the applicants in Article 3;
                                                                          The applicants plead that a further procedural error is consti-
—     in the alternative to the first claim, annul the decision           tuted by the decisions and measures of the Commission
      allowing the FPÖ (Austrian Freedom Party) as a complain-            allowing the FPÖ (Austrian Freedom Party) as a complainant
      ant and the transmission of the statement of objections;            and transmitting the statement of objections to it.
—     order the defendant to pay the costs.
Pleas in law and main arguments
                                                                          Action brought on 6 September 2002 by Krüger GmbH
                                                                          & Co KG against the Office for Harmonisation in the
The proceeding conducted by the defendant was directed                             Internal Market (Trade Marks and Designs)
against regular meetings of banks in Austria (‘Bankenrunden’).
By the contested decision the Commission found that the
applicants — together with six other Austrian banking insti-                                        (Case T-273/02)
tutions — had infringed Article 81 EC by participating in
agreements and concerted practices concerning prices, charges
and advertising measures, designed to restrict competition on                                       (2002/C 274/60)
the Austrian banking market from 1 January 1995 until
24 June 1998. The Commission imposed fines on the banks
concerned.
                                                                          (Language of the case to be determined pursuant to Article 131(2)
                                                                          of the Rules of Procedure — language in which the application was
                                                                                submitted: German)
The applicants contend that the contested decision is unlawful
first of all because the finding of the facts is partly incorrect,
partly incomplete and therefore defective. The decision thus
infringes essential procedural requirements within the meaning
of the second paragraph of Article 230 EC. In addition, the               An action against the Office for Harmonisation in the Internal
decision displays numerous defects in its reasoning and                   Market (Trade Marks and Designs) was brought before the
contradictions. This concerns the choice of the persons to                Court of First Instance of the European Communities on
whom the decision was addressed, as a whole, and the question             6 September 2002 by Krüger GmbH & Co KG, Bergisch
why the applicants were chosen on the basis of the criterion              Gladbach (Germany), represented by S. v. Petersdorff-Campen,
of the size of the institutions.                                          lawyer. Calpis Co Ltd, Tokyo, Japan was an additional party to
                                                                          the proceedings before the Board of Appeal.
The applicants further contend that the decision infringes the
principle of equal treatment since they were discriminated                The applicant claims that the Court should:
against when the persons to whom the decision was to be
addressed were decided upon. They took part in the various                —      annul the decision of the First Board of Appeal of 25 June
rounds of meetings far less frequently than other banks or not                   2002, reference No R 484/2000-1;
at all, nor are they comparable with other banks as regards
size. The Commission also infringed the principle of due
process and the applicants’ rights of defence.                            —      order the Office to pay the applicant’s costs.


title: Case C-166/99: Reference for a preliminary ruling from the Cour du Travail, Brussels (Fourth Chamber), by judgment of that court of 28 April 1999 in the case of Marthe Defreyn v Sabena SA

text:
3.7.1999                EN                     Official Journal of the European Communities                                        C 188/23
The second infringement                                                   Pleas in law and main arguments
                                                                          Under Article 189 of the EC Treaty, according to which a
The Commission maintains that Italy has failed to fulfil its              directive is to be binding, as to the result to be achieved, upon
obligations under Community law because it has failed to                  each Member State to which it is addressed, Member States are
transpose fully, clearly and unambiguously into national law              required to observe the time-limits laid down in directives for
the whole substantive content of Article 9 of Direc-                      their transposition. The time-limit in the present case expired
tive 79/409/EEC: the national rules provide for derogation in             on 1 Juli 1997 without the Italian Republic having brought
some of the cases referred to in Article 9(1)(a) and (b), but do          into the necessary provisions in order to comply with the
not comply with the conditions and detailed rules laid down               directives referred to in the Commission’s application.
in Article 9(2) or make derogation conditional upon the
investigation of other satisfactory solutions, at least in cases
where derogation is based on reasons connected with air                   (1) OJ L 125 of 23.5.1996, p. 3.
safety.                                                                   (2) OJ L 125 of 23.5.1996, p. 10.
(1) OJ No L 103 of 25.4.1979, p. 1.
(2) Decree of the President of the Council of Ministers.
                                                                          Reference for a preliminary ruling from the Cour du
                                                                          Travail, Brussels (Fourth Chamber), by judgment of that
                                                                          court of 28 April 1999 in the case of Marthe Defreyn v
                                                                                Sabena SA
                                                                                (Case C-166/99)
Action brought on 30 April 1999 by the Commission of                                               (1999/C 188/52)
  the European Communities against the Italian Republic
                                                                          Reference has been made to the Court of Justice of the
                         (Case C-161/99)                                  European Communities by a judgment of the Cour du Travail
                                                                          (Labour Court), Brussels (Fourth Chamber), of 28 April 1999,
                                                                          which was received at the Court Registry on 4 May 1999, for
                         (1999/C 188/51)                                  a preliminary ruling in the case of Marthe Befreyn v Sabena
                                                                          SA on the following questions:
An action against the Italian Republic was brought before the             1. Can the additional pre-retirement payment provided for
Court of Justice on 30 April 1999 by the Commission of the                     by Collective Agreement No 17, rendered compulsory by
European Communities, represented by Francesco P. Ruggeri                      the Royal Decree of 16 January 1975 and provided for in
Laderchi, of its Legal Service, acting as Agent, with an address               the Collective labour Agreement of 23 May 1984 con-
for service in Luxembourg at the office of Carlos Gómez de la                 cluded within Joint Sub-committee No 315.1, be treated
Cruz, of its Legal Service, Wagner Centre, Kirchberg.                          as an allowance payable under an occupational social
                                                                               security scheme to which the Protocol on Article 119 of
The applicant claims that the Court of Justice should:                         the Treaty establishing the European Community applies?
                                                                          2. Are the provisions of Collective Labour Agreement No 17
(1) declare that, by failing to adopt the laws, regulations and                and the Collective Labour Agreement of 23 May 1984
    administrative provisions necessary in order to comply                     concluded within Joint Sub-committee No 315.1 compat-
    with:                                                                      ible with Article 5 of Directive 76/207/EC (1)in that they
                                                                               exclude female workers over the age of 60 from the benefit
    (a) Council Directive 96/22/EC (1) of 29 April 1996                        of pre-retirement payments which constitute additional
         concerning the prohibition on the use in stockfarming                 redundancy payments, granted in addition to unemploy-
         of certain substances having a hormonal or thyrostatic                ment benefit, whereas such payments are guaranteed for
         action and of beta-agonists, and repealing Direc-                     male workers until the age of 65?
         tives 81/602/EEC, 88/146/EEC and 88/299/EEC
                                                                          3. If the above two questions are answered in the affirmative,
                                                                               does the application of the Protocol on Article 119 of the
    (b) Council Directive 96/23/EC       (2) of 29 April 1996 on               Treaty preclude the action brought by Mrs Defreyn from
         measures to monitor certain substances and residues                   succeeding, inasmuch as it is founded on breach of
         thereof in live animals and animal products and                       Article 5 of Directive 76/207?
         repealing Directives 85/358/EEC and 86/469/EEC and
         Decisions 89/187/EEC and 91/664/EEC,
                                                                          (1) Council Directive 76/207/EEC of 9 February 1976 on the
or by failing in any event to communicate those provisions,                   implementation of the principle of equal treatment for men and
the Italian Republic has failed to fulfil its obligations under the           women as regards access to employment, vocational training and
Treaty and the said directives;                                               promotion, and working conditions (OJ 1976 L 39, p. 40).
(2) order the Italian Republic to pay the costs.


title: Case C-462/08: Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 27 October 2008 — Ümit Bekleyen v Land Berlin

text:
               24.1.2009

               EN

               Official Journal of the European Union

               C 19/12

         Reference for a preliminary ruling from the Oberverwaltungsgericht Berlin-Brandenburg (Germany) lodged on 27 October 2008 — Ümit Bekleyen v Land Berlin
   (Case C-462/08)
   (2009/C 19/20)
   Language of the case: German
   Referring court
   Oberverwaltungsgericht Berlin-Brandenburg
   Parties to the main proceedings

      Applicant: Ümit Bekleyen

      Defendant: Land Berlin
   Question referred
   Is the second paragraph of Article 7 of Decision No 1/80 of the EEC-Turkey Association Council on the development of the Association to be interpreted as meaning that the right of access to the labour market and the corresponding right of residence following the completion of a vocational training course in the host Member State can also be invoked in a situation in which the child who was born in the host Member State, but afterwards returned with her family to the family's country of origin, returns on her own to the relevant Member State after she has reached the age of majority in order to start a vocational training course, at a moment occurring 10 years after her parents, Turkish nationals who used to be employed in that Member State, had permanently left that Member State?


title: Case T-171/04: Action brought on 17 May 2004 by Daniel Surget against the Council of the European Union and the Commission of the European Communities

text:
               24.7.2004

               EN

               Official Journal of the European Union

               C 190/19

         Action brought on 17 May 2004 by Daniel Surget against the Council of the European Union and the Commission of the European Communities
   (Case T-171/04)
   (2004/C 190/31)
   Language of the case: French
   An action against the Council of the European Union and the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 17 May 2004 by Daniel Surget, residing in Cherbourg (France), represented by Jean-François Péricaud, lawyer.
   The applicant claims that the Court should:

               —

               order the Council and the Commission jointly and severally to pay the sum of EUR 909 428, or in the alternative EUR 740 190, with interest in either case at the legal rate from the date this action was brought, by way of damages;

               —

               order the Council and the Commission to bear the costs jointly and severally.

         Pleas in law and main arguments:
   The pleas in law and principal arguments are the same as those relied on in Case T-440/03 Arizmendi and Others v Council and Commission (1).

      (1)  OJ C 59, 6. 3. 2004, p. 31.


title: Case T-266/06: Order of the Court of First Instance of 4 June 2007 — Commission v TH Parkner

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/41

         Order of the Court of First Instance of 4 June 2007 — Commission v TH Parkner
   (Case T-266/06) (1)

   (2007/C 183/80)

      Language of the case: German

   The President of the Court of First Instance (Third Chamber) has ordered that the case be removed from the register.

      (1)  OJ C 294, 2.12.2006.


title: Case C-551/07: Order of the Court (Seventh Chamber) of 19 December 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Deniz Sahin v Bundesminister für Inneres (Article 104(3) of the Rules of Procedure — Directive 2004/38/EC — Articles 18 EC and 39 EC — Right to respect for family life — Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker and subsequently married a national of another Member State)

text:
               21.2.2009

               EN

               Official Journal of the European Union

               C 44/23

         Order of the Court (Seventh Chamber) of 19 December 2008 (reference for a preliminary ruling from the Verwaltungsgerichtshof — Austria) — Deniz Sahin v Bundesminister für Inneres
   (Case C-551/07) (1)

   (Article 104(3) of the Rules of Procedure - Directive 2004/38/EC - Articles 18 EC and 39 EC - Right to respect for family life - Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker and subsequently married a national of another Member State)
   (2009/C 44/39)
   Language of the case: German
   Referring court
   Verwaltungsgerichtshof (Austria)
   Parties to the main proceedings

      Applicant: Deniz Sahin

      Defendant: Bundesminister für Inneres
   Re:
   Reference for a preliminary ruling — Verwaltungsgerichtshof (Austria) — Interpretation of Articles 18 EC and 39 EC, as well as Articles 3(1), 6(2), 7(1)(d) and (2), 9(1) and 10(1) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC (OJ 2004 L 158, p. 77) — Right of residence of a national of a non-member country who entered the territory of a Member State as an asylum seeker and subsequently married a national of another Member State
   Operative part of the order

               1.

               Articles 3(1), 6(2) and 7(1)(d) and (2) of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC, 73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC must be interpreted as applying also to family members who arrived in the host Member State independently of the Union citizen and acquired the status of family member or started to lead a family life with that Union citizen only after arriving in that State. In that regard, the fact that, at the time the family member acquires that status or starts to lead a family life, he resides temporarily in the host Member State pursuant to that State's asylum laws has no bearing.

               2.

               Articles 9(1) and 10 of Directive 2004/38 preclude a national provision under which family members of a Union citizen who are not nationals of a Member State and who, in accordance with Community law, and in particular Article 7(2) of the directive, have a right of residence, cannot be issued with a residence card of a family member of a Union citizen solely because they are entitled temporarily to reside in the host Member State under that State's asylum laws.

      (1)  OJ C 64, 8.3.2008.


title: Case C-295/99: Action brought on 5 August 1999 by the Kingdom of Belgium against the Commission of the European Communities

text:
16.10.1999              EN                     Official Journal of the European Communities                                        C 299/11
Action brought on 5 August 1999 by the Kingdom                                in meat products obtained from bovine animals and pigs
of Belgium against the Commission of the European                             having such a low fat content;
                           Communities
                                                                          (4) order the Commission to pay the costs.
                         (Case C-295/99)
                                                                          Pleas in law and main arguments
                         (1999/C 299/11)
                                                                          (Decision 1999/368)
An action against the Commission of the European Communi-
ties was brought before the Court of Justice of the European
Communities on 5 August 1999 by the Kingdom of Belgium,
represented by Anni Snoecx, Adviser in the Ministry of Foreign            — lack of competence: Article 9(3) of Directive 89/662/EEC
Affairs, Foreign Trade and Development Aid, and, in her                       and Article 10(3) of Directive 90/425/EEC allow isolated
absence, by Raymonde Foucart, Director-General in the same                    interim protective measures to be taken with regard,
Ministry, assisted by Hans Gilliams and Jan Meyers, of the                    respectively, to products and animals and products from a
Brussels Bar, with an address for service in Luxembourg at the                ‘region affected by the epizootic disease’ or from a ‘given’
Belgian Embassy, 4 Rue des Girondins.                                         establishment. An unusually high intake of dioxins, or
                                                                              even symptoms of disease resulting therefrom, does not
                                                                              amount to an ‘epizootic disease’. Nor are the measures
                                                                              contained in Decision 1999/368 limited to one or more
The applicant claims that the Court should:                                   ‘given’ establishments. Moreover, the aforementioned
                                                                              articles were only capable of being used by the Commission
                                                                              as a legal basis if it was not informed of the measures taken
(1) annul Commission Decision 1999/368/EC of 4 June 1999                      by the Member State concerned or if it considered those
     on protective measures with regard to contamination                      measures to be inadequate, and only if the measures
     by dioxins of products intended for human or animal                      adopted were measures which, having regard to the
     consumption derived from bovine animals and pigs,                        seriousness of the risk to human or animal health and any
                                                                              protective measures already taken by the Member State
                                                                              concerned, were so urgent that the Standing Veterinary
     or at least, in the alternative, Article 1(1) of that decision           Committee could not be expected, even as a master of
     in so far as it imposes a prohibition on trace (i) for an                urgency, to give its advice. That was not the position on
     unlimited period as regards suspected potential contami-                 4 June 1999 as regards the very far-reaching measures
     nation, in particular without limiting that prohibition to               taken by the Commission in Decision 1999/368 in relation
     bovine animals and pigs reared between 15 January and                    to Belgian bovine animals and pigs and meat and other
     3 June 1999 and to products obtained from such animals;                  products derived therefrom. Indeed, taking into account
     (ii) in respect of meat and meat products having a low fat               (i) the intrinsically far smaller risk which the contamination
     content (in particular, less than 20 %); and (iii) in respect            in question by dioxins of compound feedingstuffs for
     of raw milk, heat-treated milk and milk-based products, as               bovine animals and pigs represented for products derived
     defined by Council Directive 92/46/EEC;                                  from those animals, particularly long-fat products, (ii) the
                                                                              limited risks to public health arising from the short-term
                                                                              peak intake of dioxins, and (iii) the protective measures
(2) annul Article 1(1) of Commission Decision 1999/389/EC                     which had already been taken at that time by the Belgian
     of 11 June 1999 on protective measures with regard to                    authorities, it is hard to see why the situation on 4 June
     contamination by dioxins of products intended for human                  1999 was so urgent as to preclude any possibility of
     consumption derived from bovine animals and pigs and                     seeking the urgent advice of the Standing Veterinary
     revoking Decision 1999/368/EC, in so far as it imposes a                 Committee. The existence of any such urgency was further
     prohibition on trade (i) for an unlimited period as regards              contradicted by the fact (i) that the Commission had
     suspected potential contamination, in particular without                 already been informed on 27 May 1999 about the
     limiting that prohibition to bovine animals and pigs reared              contamination by dioxins of compound feedingstuffs
     between 15 January and 3 June 1999 and to products                       which had been established in Belgium, (ii) that this was
     obtained from such animals; (ii) in respect of meat and                  discussed at the meeting of the Standing Veterinary
     meat products having a low fat content (in particular, less              Committee on 1-2 June 1999 and (iii) that on 3 June the
     than 20 %); and (iii) in respect of raw milk, heat-treated               Commission laid down protective measures, by means of
     milk and milk-based products, as defined by Council                      Decision 1999/363/EC, in relation to the intrinsically more
     Directive 92/46/EEC;                                                     vulnerable domestic fowl and domestic fowl products
                                                                              sector, having obtained the advice of the Standing Vet-
                                                                              erinary Committee in that regard.
(3) annul Article 1(1) of Commission Decision 1999/449/EC
     of 9 July 1999 on protective measures with regard to                 — Infringement of essential procedural requirements:
     contamination by dioxins of certain products of animal                   Decision 1999/368 was not, as prescribed by Article 9(3)
     origin intended for human or animal consumption, in so                   of Directive 89/662/EEC and Article 10(3) of Directive
     far as it imposes a prohibition on trade in beef and pigmeat             90/425/EEC, adopted ‘in collaboration with’ Belgium as
     having a low fat content (in particular, less than 20 %) and             the Member State concerned.
 ---pagebreak--- C 299/12               EN                      Official Journal of the European Communities                                    16.10.1999
(Decision 1999/368 — alternatively Decisions 1999/389 and                          in architecture, including measures to facilitate the
1999/449)                                                                          effective exercise of the right of establishment and
                                                                                freedom to provide services, as amended;
— Breach of the general principle of care: Decision 1999/368                  (2) by adopting Article 4.2.(a) of legislative decree No 129
    was adopted with excessive haste, without any meeting of                       of 27 January 1992 and Article 4.1.(a) of decree
    the Standing Veterinary Committee taking place (even as a                      No 776 of the Ministry for Universities and Scientific
    matter of urgency) and without any actual consultation                         and Technological Research of 10 June 1994 which
    with the competent Belgian authorities. Consequently, the                      lay down a general requirement for the production of
    contested provisions manifestly disregard various scientific                   the original diploma or a certified true copy thereof;
    and factual data which substantially affect the actual health
    risk. The measures taken by the Commission must correctly
    reflect the real level of risk to public health. In that respect,              by adopting Article 4.2.(c) of decree No 129/92 and
    there are two important elements to be borne in mind,                          Article 4.1.(c) of decree No 776/94 which lay down a
    namely (i) the fact that scientific investigation has not                      general requirement for a certificate of nationality;
    conclusively shown that the short-term peak intake of
    dioxins causes significant damage to human health in the                       by adopting Article 4.3 of decree No 129/92 and
    long term, and (ii) the fact that the contamination by                         article 10 of decree No 746/94 which routinely require
    dioxins of compound feedingstuffs for bovine animals and                       an official translation of documents;
    pigs represents a relatively low risk in respect of products
    obtained from those animals, particularly long-fat prod-
    ucts. In particular, in recital (10) in the preamble to                        by adopting Article 11(1)(c) and (d) of decree No
    Decision 1999/449, the Commission overlooks the fact                           129/92, which extends the validity of certificates after
    that the tolerable daily intake recommended by the World                       5.8.1987;
    Health Organisation relates to a norm for a recurring
    intake over the long term which is, as such, of little
    relevance to incidental, short term exposure.                             (3) by prohibiting architects providing services in Italy
                                                                                from having an infrastructure in Italy (Article 9.1 of
— Breach of the general principle of proportionality: the                          decree No 129/92);
    objective pursued could have been attained by more
    specific and less burdensome measures. In any event,                      (4) by requiring an architect providing services to register
    having regard to the other significant concerns in the                         with the regional professional body for architects
    matters, the contested provisions are excessively stringent.                   (Article 9.3 of decree No 129/92 and Article 7 and 8
                                                                                of decree No 776/94), contrary to the provisions of
                                                                                Article 22 of the directive; and
                                                                              (5) by applying Article 4(6) to 4(8) of decree No 129/92
                                                                                in a manner contrary to Article 20(1) of the directive,
                                                                                has breached the requirements imposed on it by
Action brought on 9 August 1999 by the Commission of                               Articles 12, 20, 22, 27 and 31 of Directive
  the European Communities against the Italian Republic                            85/384/EEC, and, in respect of point 3 above, by
                                                                                Article 59 of the EC Treaty (now, after amendment,
                                                                                Article 49 EC);
                         (Case C-298/99)
                                                                          II. order the Italian Republic to pay the costs.
                         (1999/C 299/12)
An action against the Italian Republic was brought before the
Court of Justice of the European Communities on 9 August                  Pleas in law and main arguments
1999 by the Commission of the European Communities,
represented by Enrico Traversa, Legal Adviser, and Elisabetta
Montaguti, of its Legal Service, with an address for service in
Luxembourg at the office of Carlos Gómez de la Cruz, of                  Breaches relating to failure to transpose or
its Legal Service, Wagner Centre, Rue Alcide de Gasperi,                  transpose fully the directive
Kirchberg.
                                                                          — Article 4(1) of the directive was transposed by Article 2.1
The applicant claims that the Court should:
                                                                              of legislative decree No 129/92 which regulates the
                                                                              minimum length of training. However, that decree does
I.  Declare that the Italian Republic                                         not take account of the three year training in the ‘Fach-
                                                                              hochschulen’ of the Federal Republic of Germany.
    (1) by failing to take all the measures necessary to
         implement Articles 4(1), second part, 4(2), 7, 11 and
         14 of Council Directive 85/384/EEC (1) of 10 June                — Article 4(2) of the directive concerning recognition of
         1985 on the mutual recognition of diplomas, certifi-                 training in architecture pursued as part of a social better-
         cates and other evidence of formal qualifications                    ment scheme or a part-time course was not transposed.


title: Case T-82/01: Action brought on 5 April 2001 by VOF Josanne and Others against the Commission of the European Communities

text:
C 186/12                EN                     Official Journal of the European Communities                                      30.6.2001
Action brought on 5 April 2001 by VOF Josanne and                         In regard to dredging equipment, the applicants submit that in
Others against the Commission of the European Com-                        general the activities in question involve removal of the
                               munities                                   dredged material. Such removal is in general an activity
                                                                          inherent in that of dredging equipment such as hopper and
                                                                          suction dredgers. This, however, does not constitute a carriage
                           (Case T-82/01)                                 of goods within the meaning of Article 1 of the regulation.
                          (2001/C 186/18)                                 Should it none the less be held that the transport inherent in
                                                                          the operation of dredging equipment does constitute a carriage
                                                                          of goods within the meaning of Article 1 of the regulation, the
                                                                          question arises as to whether the Josanne, as a specialised vessel
                     (Language of the case: Dutch)                        under Article 4(6) of the regulation, is eligible for exemption
                                                                          from the scope of Article 4(1) thereof. The applicants take the
                                                                          view that the conditions laid down by Article 4(6) of the
An action against the Commission of the European Communi-                 regulation have been satisfied and that the vessel does not
ties was brought before the Court of First Instance of the                contribute to an increase in fleet capacity and does not
European Communities on 5 April 2001 by VOF Josanne,                      adversely affect the objectives of the Community rules. The
established in Papendrecht, P. van Wijnen and A.J. van Wijnen,            Commission, they submit, errs in its view that the Josanne fails
both resident in Papendrecht, and A. Veen, resident in                    to satisfy those criteria on the ground that the vessel can
Meerkerk, all represented by J. van Dam, of the Rotterdam Bar.            transport a variety of types of goods, and that bringing that
                                                                          vessel into service would consequently contribute to an
                                                                          increase in fleet capacity. The Josanne is not suitable for the
The applicants claim that the Court should:
                                                                          carriage of any sort of goods other than dredged material.
(1) Annul Commission Decision SG (2001) D/286100 of
      9 February 2001 not to grant the applicants the requested           The applicants offer to substantiate their views by all legal
      exemption from the old-for-new obligations set out in               means, in particular by way of witnesses and experts.
      Article 4(1) of Council Regulation (EC) No 718/1999 of
      29 March 1999 on a Community-fleet capacity policy to
      promote inland waterway transport, and rule that the
      requested exemption ought to be granted in respect of
      the hopper and suction dredger Josanne;
(2) Order the defendant to pay the costs.
                                                                          Action brought on 11 April 2001 by IAMA Consulting
Pleas in law and main arguments                                            S.r.l. against Commission of the European Communities
The applicants challenge Commission Decision SG (2001)                                               (Case T-85/01)
D/286100 of 9 February 2001, which is addressed to them.
That decision was issued in response to the request which VOF
                                                                                (2001/C 186/19)
Josanne submitted to the Commission on 27 June 2000 that
the hopper and suction dredger Josanne be exempted from
application of Article 4(1) of Council Regulation No 718/1999
of 29 March 1999. In the contested decision, the Commission                                  (Language of the case: Italian)
decided not to grant the requested exemption, a decision
which has a direct adverse effect on the applicants’ interests.
                                                                          An action against the Commission of the European Communi-
                                                                          ties was brought before the Court of First Instance of the
The Josanne was specially designed to perform dredging and                European Communities on 11 April 2001 by IAMA Consulting
suction work and consequently intended for use in ‘wet                    S.r.l., represented by Vincenzo Salvatore, lawyer.
contracting’, that is to say, with regard to water- (public-works)
related activities. The Josanne was thus designed for only one            The applicant claims that the Court should:
sort of material, namely ‘dredged material, dredged mud’.
                                                                          —      annul the contested provisions in so far as they are
                                                                                unlawful, inasmuch as the expenses incurred by IAMA
According to the Commission, although the Josanne is indeed                      Consulting S.r.l. in the periods 1 May 1996 to 31 October
an item of dredging equipment, the exemption under                               1997 (Project REGIS 22337) and 1 November 1996 to
Article 2(2)(g) of Regulation No 718/1999 is not applicable                      31 October 1997 (Project REFIAG 23200) are not
inasmuch as the vessel is also designed for the transport of                     recognised as eligible, and make any other appropriate
filling sand, filling earth, fouled earth and fouled dredged mud.                order;


title: Case C-102/13 P: Appeal brought on 1 March 2013 by the Federal Republic of Germany against the order of the General Court (Eighth Chamber) of 18 December 2012 in Case T-205/11 Germany v Commission

text:
               8.6.2013

               EN

               Official Journal of the European Union

               C 164/8

         Appeal brought on 1 March 2013 by the Federal Republic of Germany against the order of the General Court (Eighth Chamber) of 18 December 2012 in Case T-205/11 Germany v Commission
   (Case C-102/13 P)
   2013/C 164/13
   Language of the case: German

      Parties

      Appellant: Federal Republic of Germany (represented by: T. Henze and J. Möller, acting as Agents)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside the order of the General Court of the European Union of 18 December 2012 in Case T-205/11;

               —

               declare the action admissible and refer it back to the General Court for a decision on the merits; and

               —

               order the European Commission to pay the costs of the proceedings before the General Court and before the Court of Justice.

      Pleas in law and main arguments

   The appeal has been brought against the order of the General Court of the European Union of 18 December 2012 in Case T-205/11, by which the General Court dismissed the action brought by the Federal Republic of Gemany for annulment of Commission Decision 2011/527/EU of 26 January 2011 on State aid C-7/10 (ex CP 250/09 and NN 5/10) implemented by Germany (Sanierungsklausel).
   The Federal Government’s appeal is based on two grounds of appeal, each of which concerns a complaint as to insufficient reasoning:

               —

               Breach of the principle of the efficient administration of justice, which is a special manifestation of the general legal principle of legal certainty, in that the General Court erred in its classification of the Commission’s chosen notification procedure in respect of the decision at issue, and did not establish any requirements as to the formalities to be observed in order for notification, with a form for acknowledgement of receipt, of a decision under Article 7 of Council Regulation No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (1) to be effective.

               —

               Breach of the principle of the efficient administration of justice, which is a special manifestation of the general legal principle of legal certainty, in that the General Court found that the Commission was not, in relation to the complaint of late submission of the application, required to adduce evidence of receipt of mail by an identifiable person or of the fact that the person concerned was authorised to accept notification.

      (1)  OJ 1999 L 83, p. 1.


title: Case T-166/14: Action brought on 3 March 2014 — PRS Mediterranean v OHIM — Reynolds Presto Products (NEOWEB)

text:
               12.5.2014

               EN

               Official Journal of the European Union

               C 142/45

         Action brought on 3 March 2014 — PRS Mediterranean v OHIM — Reynolds Presto Products (NEOWEB)
   (Case T-166/14)
   2014/C 142/58
   Language in which the application was lodged: English

      Parties

      Applicant: PRS Mediterranean Ltd (Tel Aviv, Israel) (represented by: A. Späth and V. Töbelmann, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Reynolds Presto Products, Inc. (Richmond, United States)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 28 November 2013 given in Joined Cases R 889/2012-2 and R 635/2012-2;

               —

               Order the defendant to pay the costs of proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The applicant

      Community trade mark concerned: The word mark ‘NEOWEB’ for goods in Class 19 — Community trade mark application No 6 184 568

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

      Mark or sign cited in opposition: Various national trademarks of the word mark ‘GEOWEB’ for goods in Classes 1, 17 and 19 and the non-registered mark ‘GEOWEB’ used in the course of trade in all Member States of the European Union

      Decision of the Opposition Division: Partially upheld the opposition

      Decision of the Board of Appeal: Dismissed the appeal proceedings

      Pleas in law: Infringement of Articles 8(1)(b), 8(3), 8(4) and 8(5) CTMR.


title: Case C-178/05: Action brought on 19 April 2005 by the Commission of the European Communities against the Hellenic Republic

text:
               25.6.2005

               EN

               Official Journal of the European Union

               C 155/8

         Action brought on 19 April 2005 by the Commission of the European Communities against the Hellenic Republic
   (Case C-178/05)
   (2005/C 155/15)
   Language of the case: Greek
   An action against the Hellenic Republic was brought before the Court of Justice of the European Communities on 19 April 2005 by the Commission of the European Communities, represented by Dimitrios Triantafillou, with an address for service in Luxembourg.
   The applicant claims that the Court should:

               1.

               declare that, as a result of its legislative provisions concerning the imposition of duty on the transfer of registered offices and the transfer of effective centres of management and concerning the exemption from that duty of all cooperative agricultural organisations of whatever level, of associations and consortia thereof of any kind, of co-ownership of vessels, of shipping consortia, and of shipping companies of every kind, the Hellenic Republic has failed to fulfil its obligations under Directive 69/335/EEC; (1)

               2.

               order the Hellenic Republic to pay the costs.

         Pleas in law and main arguments of the Commission
   The Commission submits that the relevant criterion for imposition of duty on the transfer of the registered office or effective centre of management is whether or not the company is classified as a capital company in the State of origin, with the result that duty is not imposed when the Member State of origin does not consider a company to be a capital company. The Commission therefore objects to the fact that the Greek legislation ascribes importance only to whether or not capital duty is imposed in the State of origin, exempting from duty only the transfer to Greece of a registered office or effective centre of management from a Member State which imposes capital duty. The Commission's view is based on a both literal and systemic interpretation of the directive, which is related to the nature as capital companies of the companies liable for duty and is reinforced by the amendment brought about by Directive 85/303/EEC which moves towards abolition of capital duty.
   As regards the exemption of agricultural cooperatives and shipping companies, categories covering entire branches of the economy are involved; the Greek authorities have not explained why those categories do not comprise capital companies and their total exemption is not covered by the power under the directive to exempt certain transactions. Furthermore, where the directive intended to exempt whole branches it did so expressly (for example, public undertakings and organisations).

      (1)  OJ, English Special Edition 1969 (II), p. 412.


title: Case C-207/06: Reference for a preliminary ruling from the Unabhängiger Finanzsenat Salzburg-Aigen (Austria) lodged on 8 May 2006 — Schwaninger Martin, Viehhandel — Viehexport v Zollamt Salzburg, Erstattungen

text:
               12.8.2006

               EN

               Official Journal of the European Union

               C 190/7

         Reference for a preliminary ruling from the Unabhängiger Finanzsenat Salzburg-Aigen (Austria) lodged on 8 May 2006 — Schwaninger Martin, Viehhandel — Viehexport v Zollamt Salzburg, Erstattungen
   (Case C-207/06)
   (2006/C 190/12)
   Language of the case: German
   Referring court
   Unabhängiger Finanzsenat Salzburg-Aigen
   Parties to the main proceedings

      Applicant: Martin Schwaninger, Viehhandel — Viehexport

      Defendant: Zollamt Salzburg, Erstattungen
   Questions referred

               1.

               Is Article 1 of Commission Regulation (EC) No 615/98 (1) of 18 March 1998 to be understood as meaning that Chapter VII 48 point 7(b) of the annex to Directive 91/628/EEC (2) of 19 November 1991 applies analogously in the case of transport by sea on a regular and direct link between a geographical point of the Community and a geographical point in a third country by means of vehicles loaded on to vessels without unloading of the animals?

               2.

               If question one is answered in the affirmative, is Chapter VII 48 point 7(b) of the annex to Directive 91/628/EEC to be understood as meaning that, in the case of transport of bovine animals, the journey time by sea does not comply with the rule in point 4(d) if, after 14 hours of travel, the animals are not given a rest period of at least one hour?

               3.

               If question one is answered in the negative, is the then applicable provision in Chapter VII 48 point 7(a) of the annex to Directive 91/628/EEC to be understood as meaning that the journey time by sea on a regular and direct link between a geographical point of the Community and a geographical point in a third country by means of vehicles loaded on to vessels without unloading of the animals is immaterial provided that the animals are regularly fed and watered and, in such a case, does a further period of 29 hours of transport by road begin immediately after unloading the lorry at the port of destination?

               4.

               If question three (point 2.3) is answered in the affirmative, is the first indent of Article 5A point 2(d)(ii) of Directive 91/628/EEC to be understood as meaning that the staff in charge of the transport are required to state in the route plan the times at which the animals transported were fed and watered during the ferry journey and that a pre-typed statement indicating that 'during the ferry journey, animals are fed and watered in the evenings and mornings, at midday, and in the evenings and mornings' does not meet the requirements of Directive 91/628/EEC, with the effect in law that the failure to sate the measures actually taken to care for the animals leads to a loss of the right to an export refund in so far as the proof required cannot by provided by any other means?

      (1)  OJ 1998 L 82, p. 19.

      (2)  OJ 1991 L 340, p. 17.


title: Case C-217/99: Action brought on 8 June 1999 by the Commission of the European Communities against the Kingdom of Belgium

text:
7.8.1999                EN                       Official Journal of the European Communities                                        C 226/23
Reference for a preliminary ruling by the Landesgericht                          Presidential Decree No 641/1972, regard being had to the
Feldkirch als Arbeits- und Sozialgericht by order of that                        fact that the said Article 11 retroactively extended to taxes
court of 16 March 1999 in the case of Friedrich Jauch                            paid but not due the three-year time-limit which, however,
      against Pensionsversicherungsanstalt der Arbeiter                          in the abovementioned second paragraph of Article 13 —
                                                                                on the basis of the true meaning of the words used in
                          (Case C-215/99)                                        context — was expressly limited solely to the case of
                                                                                ‘repayment of charges paid by mistake’ so as to induce not
                                                                                only the interested parties but also all the trial judges to
                          (1999/C 226/37)                                        interpret it in that manner?
Reference has been made to the Court of Justice of the                           In short, does the principle of legal certainty allow the
European Communities by order of the Landesgericht                               national court to apply — both then and now — a
(Regional Court) Feldkirch, in its capacity as a court with                      time-limit based on a provision which, having regard to
jurisdiction in employment and social security matters, of                       the ordinary meaning of the words, does not apply to the
16 March 1999, received at the Court Registry on 7 June                          case before it?
1999, for a preliminary ruling in the case of Friedrich Jauch v
Pensionsversicherungsanstalt der Arbeiter (Employees’ Retire-               2. Must the provisions of Articles 10 and 12(1)(e) of Council
ment Insurance Institution) on the following question:                           Directive 69/335/EEC (2) be interpreted as preventing the
                                                                                introduction of national legislation, like that introduced by
‘Is it an infringement of Article 19(1) of Council Regulation                    the Italian legislature in the form of Article 11(1) and (2)
(EEC) No 1408/71 of 14 June 1971 (1) on the application of                       of Law No 448/1998, which — ex post facto — reduces
social security schemes to employed persons, to self employed                    refunds in respect of amounts paid but not due by way of
persons and to members of their families moving within the                       annual charge on a flat-rate basis for entry on the register
Community, in its current version, to make entitlement                           of undertakings (at that time document registries) of
to nursing benefit pursuant to the current version of the                        company documents in respect of each of which the
Bundespflegegeldgesetz (Federal Law on nursing benefit; BGBl                     company had already paid a sum provided for by the
110/1993) dependent on the person in need of care having                         national legislation?
his normal residence in Austria?’
                                                                                In short, is it permitted—in the light of the abovemen-
                                                                                tioned directive—for the national legislature to duplicate,
(1) OJ, English Special Edition 1971 (II), p. 416.                               ex post facto by means of what purports to be an
                                                                                interpretative law, levies which have already been paid?
                                                                            (1) (1988) ECR 3249.
                                                                            (2) OJ L 249 of 3.10.1969, p. 25.
Reference for a preliminary ruling by the Tribunale di
Milano, First Civil Chamber, by order of that court of
15 May 1998 in the case of Riccardo Prisco Srl v
          Amministrazione delle Finanze dello Stato
                          (Case C-216/99)                                   Action brought on 8 June 1999 by the Commission of the
                                                                             European Communities against the Kingdom of Belgium
                          (1999/C 226/38)
                                                                                (Case C-217/99)
Reference has been made to the Court of Justice of the
European Communities by an order of the First Civil Chamber
of the Tribunale di Milano by order of 15 May 1999, which                                             (1999/C 226/39)
was received at the Court Registry on 7 June 1999, on the
following questions:                                                        An action against the Kingdom of Belgium was brought before
                                                                            the Court of Justice of the European Communities on 8 June
1. Do the principles of legal certainty and the protection of               1999 by the Commission of the European Communities,
     individuals — which, according to the judgment of the                  represented by Hendrik van Lier, Legal Adviser, acting as
     Court of Justice of 21 June 1988 in Case 257/88 (1) and                Agent, with an address for service in Luxembourg at the office
     in other judgments, require that, in areas covered by                  of Carlos Gómez de la Cruz, of its Legal Service, Wagner
     Community law, the Member States’ legal rules should be                Centre, Kirchberg.
     worded unequivocally so as to give the persons concerned
     a clear and precise understanding of their rights and
     obligations and enable the national courts to ensure that              The applicant claims that the Court should:
     those rights and obligations are observed — and the
     Community principle of proportionality preclude a Mem-                 — declare that, by laying clown in Article 6(1)(1) of the Royal
     ber State from relying on national rules setting a peremp-                  Decree of 3 March 1992, concerning the placing on the
     tory time-limit, such as those deriving from the combined                   market of nutrients and foodstuffs to which nutrients have
     provisions of the second paragraph of Article 13 of                         been added an obligation to indicate on the labelling of the
 ---pagebreak--- C 226/24                 EN                   Official Journal of the European Communities                                           7.8.1999
     products involved a notification number provided for by             2. order the Grand Duchy of Luxembourg to pay the costs.
     Article 4 thereof, the Kingdom of Belgium has failed to
     fulfil its obligations under Articles 28 ff. (ex Article 30) of
     the EC Treaty;
                                                                         Pleas in law and main arguments
— order the Kingdom of Belgium to pay the costs.
                                                                         The third paragraph of Article 249 of the EC Treaty is binding
                                                                         and therefore requires the Member States to comply with the
                                                                         time-limits laid down in directives. The prescribed period laid
Pleas in law and main arguments                                          down in the first paragraph of Article 15 of the directive ended
                                                                         on 1 January 1997 without the Grand Duchy of Luxembourg
                                                                         having adopted the necessary measures.
Despite the fact that the legislation applies to both national
and foreign products equally, the obligation to indicate the
notification number attributed by the Belgian authorities                (1) OJ L 213 of 7.9.1995, p. 1.
could have restrictive effects on trace, since it makes special
packaging or labelling necessary when contemplating distri-
bution in Belgium. Since it is merely the result of a desire to
facilitate monitoring measures and to make it easy to check
whether a product has been previously notified, it cannot be
justified by public health considerations, since less burdensome
measures could easily be devised. The Belgian authorities are
wrong to cite examples of Community provisions providing
for marking (veterinary sector, milk products, toys, aerosol
sprays and medicinal products) which permit the free move-               Action brought on 8 June 1999 by the Commission of the
ment of the product while indicating its compliance with                     European Communities against the French Republic
binding legislation, when the obligation which is the subject-
matter of the present action serves to lighten controls after
prior notification is given.                                                                        (Case C-219/99)
                                                                                (1999/C 226/41)
                                                                         An action against the French Republic was brought before the
                                                                         Court of Justice of the European Communities on 8 June 1999
                                                                         by the Commission of the European Communities, represented
                                                                         by Hendrik van Lier, Legal Adviser, acting as Agent with an
                                                                         address for service in Luxembourg at the Chambers of Carlos
Action brought on 8 June 1999 by the Commission of the                   Gómez de la Cruz, Wagner Centre, Kirchberg.
European Communities against the Grand Duchy of
                            Luxembourg
                                                                         The Commission of the European Communities claims that
                                                                         the Court should:
                          (Case C-218/99)
                                                                         1. declare that, by failing to adopt the laws, regulations
                          (1999/C 226/40)                                     and administrative provisions necessary to comply with
                                                                              European Parliament and Council Directive 95/16/EC of
                                                                              29 June 1995 on the approximation of the laws of the
An action against the Grand Duchy of Luxembourg was                           Member States relating to lifts (1), the French Republic has
brought before the Court of Justice of the European Communi-                  failed to fulfil its obligations under that directive;
ties on 8 June 1999 by the Commission of the European
Communities, represented by Hendrik van Lier, Legal Adviser,             2. order the French Republic to pay the costs.
acting as Agent, with an address for service in Luxembourg at
the Chambers of Carlos Gómez de la Cruz, Wagner Centre,
Kirchberg.
                                                                         Pleas in law and main arguments
The Commission of the European Communities claims that
the Court should:                                                        The pleas in law and main arguments are the same as those in
                                                                         Case C-218/99 (2).
1. declare that, by failing to adopt the laws, regulations
     and administrative provisions necessary to comply with
                                                                         (1) OJ L 213 of 7.9.1995, p. 1.
     European Parliament and Council Directive 95/16/EC of               (2) See p. 24 of this Official Journal.
     29 June 1995 on the approximation of the laws of the
     Member States relating to lifts (1), the Grand Duchy of
     Luxembourg has failed to fulfil its obligations under that
     directive;


title: Case C-115/00: Reference for a preliminary ruling by the Finanzgericht Münster by order of 23 February 2000 in the case of Andreas Hoves Internationaler Transport-Service S.à.r.l. v Finanzamt Borken

text:
10.6.2000              EN                    Official Journal of the European Communities                                            C 163/13
6. Should the reply to Question 4 be in the negative:                   Reference for a preliminary ruling from the Cour d’Appel
                                                                        de Paris (13th Chamber) in the case of Ministère Public v
    In order to comply with the obligation of cooperation and                                  Claude Laguillaumie
    solidarity incumbent under Article 5 of the EC Treaty (now
    Article 10 EC) on national authorities, in particular the                                    (Case C-116/00)
    courts, and with the principle of effectiveness, must
    application of national rules of substantive or procedural
    law curtailing the ability to assert claims which are well                                   (2000/C 163/22)
    founded under Community law, such as in the present
    case a claim founded on State liability, be deferred pending
                                                                        Reference has been made to the Court of Justice of the
    full elucidation of the substance of the claim at Community
                                                                        European Communities by request received at the Court
    law, if necessary following a reference to the Court of
                                                                        Registry on 27 March 2000 from the Cour d’Appel de Paris
    Justice for a preliminary ruling?
                                                                        (13th Chamber) for a preliminary ruling in the case of
                                                                        Ministère Public (Public Prosecutor) v Claude Laguillaumie.
                                                                        The Cour d’Appel de Paris (13th Chamber) asks the Court of
                                                                        Justice to rule on the compatibility of the decree of 1 April
                                                                        1992 and the ministerial decrees of 12 November 1992 and
                                                                        30 August 1996 authorising Eco Emballage SA and granting
                                                                        it exclusive rights in French territory to the reclamation of all
                                                                        products other than glass and medicines, with the principles
                                                                        laid down in Article 85 of the Treaty of Rome (now Article 81
Reference for a preliminary ruling by the Finanzgericht
                                                                        EC), Article 86 of the Treaty of Rome (now Article 82
Münster by order of 23 February 2000 in the case of
                                                                        EC), Directive 91/156/EEC (1) of 18 March 1991, Directive
Andreas Hoves Internationaler Transport-Service S.à.r.l.
                                                                        83/189/EEC (2) of 28 March 1983, Articles 30 and 36 of the
                      v Finanzamt Borken
                                                                        Treaty of Rome (now, after amendment, Articles 28 and 30
                                                                        EC) and Directive 94/62/EC (3) of 20 December 1994.
                         (Case C-115/00)
                                                                        (1) Council Directive 91/156/EEC of 18 March 1991 amending
                         (2000/C 163/21)                                    Directive 75/442/EEC on waste (OJ 1991 L 78, p. 32).
                                                                        (2) Council Directive 83/189/EEC of 28 March 1983 laying down a
                                                                            procedure for the provision of information in the field of technical
                                                                            standards and regulations (OJ 1983 L 109, p. 8).
Reference has been made to the Court of Justice of the
                                                                        (3) European Parliament and Council Directive 94/62/EC of
European Communities by order of 23 February 2000 by the                    20 December 1994 on packaging and packaging waste (OJ 1994
Finanzgericht Münster (Finance Court, Münster), which was                   L 365, p. 10).
received at the Court Registry on 27 March 2000, for a
preliminary ruling in the case of Andreas Hoves Internationaler
Transport-Service S.à.r.l. v Finanzamt Borken on the following
questions:
1. Does Article 6 of Council Regulation (EEC) No 3118/93
    of 25 October 1993 (OJ 1993 L 279, p. 1) preclude
    national rules which result in motor vehicle tax being
    charged for the use of commercial goods vehicles which
    are registered in another Member State of the European
    Union, for which a cabotage authorisation has been issued
                                                                        Action brought on 27 March 2000 by the Commission of
    in that Member State, which carry out cabotage operations
                                                                                the European Communities against Ireland
    in the Federal Republic of Germany and which have their
    regular base there?
                                                                                (Case C-117/00)
2. Does Article 5 of Council Directive 93/89/EEC of
    25 October 1993 (OJ 1993 L 279, p. 32), in cases like that                                   (2000/C 163/23)
    mentioned in Question 1, preclude national rules such as
    the second half of the second sentence of Paragraph 1(1)(2)
    of the Kraftfahrzeugsteuergesetz (KraftStG, Law on Motor            An action against Ireland was brought before the Court of
    Vehicle Tax) in conjunction with Paragraph 1(1)(3) of the           Justice of the European Communities on 27 March 2000 by
    KraftStG?                                                           the Commission of the European Communities, represented
                                                                        by Mr Richard Wainwright, Principal Legal Adviser, acting as
                                                                        agent, with an address for service at the office of Mr Carlos
                                                                        Gómez de la Cruz, a member of the Legal Service of the
                                                                        Commission, Wagner Centre, Kirchberg, Luxembourg.


title: Case C-407/10: Order of the President of the Eighth Chamber of the Court of 28 February 2011 — European Commission v Republic of Estonia

text:
               11.6.2011

               EN

               Official Journal of the European Union

               C 173/9

         Order of the President of the Eighth Chamber of the Court of 28 February 2011 — European Commission v Republic of Estonia
   (Case C-407/10) (1)

   2011/C 173/20
   Language of the case: Estonian
   The President of the Eighth Chamber has ordered that the case be removed from the register.

      (1)  OJ C 274, 9.10.2010.


title: Case C-164/00: Reference for a preliminary ruling by the High Court of Justice (England & Wales), Queen's Bench Division, by order of that court of 1 March 2000, in the case of Katia Beckman against Dynamco Whicheloe Macfarlane Ltd

text:
8.7.2000                EN                   Official Journal of the European Communities                                          C 192/9
1. As not precluding a legislative provision of the host                The applicant claims that the Court should:
    Member State pursuant to which employees of the credit
    institution concerned are required to give evidence as              (1) declare that, by failing to adopt all the measures necessary
    witnesses in criminal proceedings concerning services pro-              in order to comply with the obligations laid down in
    vided by them, under the freedom to provide services, in                Article 5(4)(a) and point 2 in Annex III to Council Directive
    the territory of the host Member State in circumstances in              91/676/EEC (1) of 12 December 1991 concerning the
    which employees of credit institutions of the host Member               protection of waters against pollution caused by nitrates
    State are under a like obligation to give evidence as                   from agricultural sources, the Federal Republic of Germany
    witnesses;                                                              has failed to fulfil its obligations under that directive;
2. As not precluding a legislative provision of the host                (2) order the Federal Republic of Germany to pay the costs.
    Member State pursuant to which employees of the credit
    institution concerned who, when interviewed as suspects,
    choose not to rely on their right to remain silent, may             Pleas in law and main arguments
    as suspects make a statement in criminal proceedings
    concerning services provided by them, under the freedom             Article 5(1) of Directive 91/676/EEC prescribes, in conjunction
    to provide services, in the territory of the host Member            with Annex III, maximum amounts, for each farm or livestock
    State in circumstances in which employees of credit                 unit, of manure to be applied to the land per hectare and per
    institutions established in the host Member State have the          year. Under the German provisions (Paragraphs 2(1) and 4(5)
    same right to make a statement as suspects, where they do           of the Düngeverordnung (Manure Regulation)), regard may be
    not or do not wish to rely on their right to remain silent;         had, within specified parameters, to ‘unavoidable production
                                                                        losses’ in the case of farm manure originating from animals
3. As precluding a legislative provision of the Member State            and to ‘storage losses’ in the case of liquid manure and slurry.
    of origin pursuant to which employees of the credit                 As a result, between 10 % and 20 % of the total quantities of
    institution concerned may be rendered criminally and                nitrogen are regarded as ‘normal’ losses arising from volatisa-
    civilly liable if, in the context of a criminal investigation       tion, and no regard is had to the fact that, to a large extent,
    conducted in a host Member State (see points 1 and 2) (in           those quantities of nitrogen escape into the air and then settle
    this case Belgium), they give evidence concerning services          once again on the ground and on expanses of water, thereby
    provided by them in the territory of the host Member State          contributing to water pollution.
    under the freedom to provide services;
                                                                        The maximum quantities laid down in the directive must apply
4. As precluding a legislative provision of the Member State            uniformly throughout the Community. Following discussions,
    of origin pursuant to which employees of the credit                 the Commission once again referred the question of interpret-
    institution concerned may be rendered criminally and                ation to the committee provided for in Article 9 of the
    civilly liable if, in the context of a criminal investigation       directive, and confirmed in written communications to the
    conducted in a host Member State (see points 1 and 2) (in           Federal Republic of Germany, Austria and Luxembourg that
    this case Belgium), they make a statement as suspects               the quantities specified in point 2 of Annex III to the directive
    concerning services provided by them in the territory of            are to be regarded as quantities of manure ex storage.
    the host Member State (in this case Belgium) under the
    freedom to provide services, whilst at the same time not
    relying or not wishing to rely on the right to remain silent?       (1) OJ L 375 of 31.12.1991, p. 1.
                                                                        Reference for a preliminary ruling by the High Court of
Action brought on 27 April 2000 by the Commission of                    Justice (England & Wales), Queen’s Bench Division, by
the European Communities against the Federal Republic                   order of that court of 1 March 2000, in the case of Katia
                            of Germany                                     Beckman against Dynamco Whicheloe Macfarlane Ltd
                          (Case C-161/00)                                                         (Case C-164/00)
                          (2000/C 192/16)                                                         (2000/C 192/17)
An action against the Federal Republic of Germany was                   Reference has been made to the Court of Justice of the
brought before the Court of Justice of the European Communi-            European Communities by an order of the High Court of
ties on 27 April 2000 by the Commission of the European                 Justice (England & Wales), Queen’s Bench Division, of 1 March
Communities, represented by Götz zur Hausen, Legal Adviser,             2000, which was received at the Court Registry on 5 May
with an address for service in Luxembourg at the office of              2000, for a preliminary ruling in the case of Katia Beckman
Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre           against Dynamco Whicheloe Macfarlane Ltd, on the following
C 254, Kirchberg.                                                       questions:
 ---pagebreak--- C 192/10                EN                     Official Journal of the European Communities                                          8.7.2000
In circumstances where:                                                   viii)The Regulations containing the provisions for the ‘annual
                                                                               allowance’ and the ‘lump sum’ compensation payment
                                                                               were made pursuant to statutory provisions relating to
                                                                               ‘Compensation for loss of office etc.’ and empowering the
i)   An NHS employee, being a member of the NHS Superannu-                     Secretary of State to make regulations for the payment of
     ation Scheme, with five years qualifying service in the                   ‘pensions, allowances or gratuities by way of compen-
     Scheme and aged between 50 and the normal retirement                      sation’.
     age, is entitled to financial benefits following dismissal for
     redundancy.
                                                                          ix) The principal Regulations governing the NHS Superannu-
                                                                               ation Scheme oblige the NHS employer who has dismissed
ii) The benefits consist of:                                                   the employee to make contributions to the Secretary of
                                                                               State to cover the extra costs of the immediate payment of
                                                                               the early retirement pension and retirement lump sum,
                                                                               and the ‘annual allowance’ and ‘lump sum’ compensation.
     (a) early payment of the retirement pension and lump
          sum to which the employee would otherwise have
          become entitled only on reaching normal retirement              x) The undertaking in which the employee works is trans-
          age under that scheme and;                                           ferred to a private company and:
                                                                               (a) The employee’s membership of the NHS Superannu-
     (b) compensation consisting of an annual allowance and                        ation scheme has ceased, save that the employee has a
          lump sum compensation calculated by reference to the                     right to superannuation benefits from the scheme
          rate by which the early retirement pension would be                      payable (in the ordinary course of events) at and from
          increased if a specified further period of reckonable                    normal retirement age.
          years were added to the employee’s actual reckonable
          years.
                                                                               (b) The private company (not being an NHS employer)
                                                                                cannot make payments to the NHS Superannuation
                                                                                Scheme in order to enhance the employee’s benefits
iii) The entitlement to the benefits has been agreed between                       from that Scheme.
     NHS employers and recognised trades unions and recorded
     in a collective agreement, the terms of which are set out in
     the conditions of service for the employee’s post.                   xi) The private company then dismisses the employee for
                                                                               redundancy.
iv) There is provision in that collective agreement for it to be               1. Is the employee’s entitlement to early payment of
     implemented by secondary legislation in the form of                           pension and retirement lump sum and/or to the annual
     Regulations approved by the UK Parliament and it is so                        allowance and lump sum compensation, a right to an
     implemented.                                                                  old-age, invalidity or survivors’ benefit within the
                                                                                meaning of Article 3.3 of Council Directive
                                                                                77/187/EEC? (1);
v) The benefits are provided to the employee by the Secretary
     of State pursuant to such Regulations.                                    2. If and to the extent that the answer to Question 1. is
                                                                                ‘no’, is there an obligation of the transferor arising
                                                                                from the contract of employment, the employment
vi) The collective agreement confirmed existing arrangements                       relationship or the collective agreement within the
     within the NHS for premature retirement with immediate                        meaning of Article 3.1 and/or 3.2 which transfers by
     payment of superannuation benefits and ‘compensation’                         reason of the transfer of the undertaking and renders
     following dismissal for redundancy and in the interests of                    the transferee liable to pay the benefits to the employee
     the efficiency of the service, but altered the provisions as                  upon dismissal?
     to the further reckonable years to be used in the calculation
     of the ‘annual allowance’ and ‘lump sum compensation’
     and extended eligibility to those in a further category of
     efficiency dismissal.                                                (1) of 14 February 1977 on the approximation of the laws of the
                                                                              Member States relating to the safeguarding of employees’ rights
                                                                              in the event of transfers of undertakings, businesses or parts of
                                                                              businesses (OJ L 61, 05.03.77, p. 26).
vii) The Regulations in which provision for the early payment
     of retirement pension and lump sum is made are the
     principal regulations governing the NHS Superannuation
     Scheme, which is a statutory scheme outside the UK Social
     Security scheme.


title: Case T-370/10 R: Order of the President of the General Court of 24 January 2011 — Rubinetterie Teorema v Commission (Application for interim measures — Competition — Decision of the Commission to impose a fine — Bank guarantee — Application for suspension of application — Financial harm — Lack of exceptional circumstances — Lack of urgency)

text:
               5.3.2011

               EN

               Official Journal of the European Union

               C 72/18

         Order of the President of the General Court of 24 January 2011 — Rubinetterie Teorema v Commission
   (Case T-370/10 R)
   (Application for interim measures - Competition - Decision of the Commission to impose a fine - Bank guarantee - Application for suspension of application - Financial harm - Lack of exceptional circumstances - Lack of urgency)
   2011/C 72/30
   Language of the case: Italian

      Parties

      Applicant: Rubinetterie Teorema SpA (Flero, Italy) (represented by: R. Cavani, M. di Muro and P. Preda, lawyers)

      Defendant: European Commission (represented by: A. Antoniadis, F. Castillo de la Torre and L. Malferrari, agents)

      Re:

   Application for suspension of application of Commission Decision C(2010) 3 4185 final of 23 June 2010 relating to a proceeding pursuant to Article 101 [TFEU] and Article 53 of the EEA Agreement (Case COMP/39.092 — Bathroom fittings and fixtures).

      Operative part of the order

               1.

               The application for suspension of application is rejected.

               2.

               The costs are reserved.


30 . 12. 95           HENI                   Official Journal of the European Communities                               No C 351 / 11
        specific area related payment on a farmer whose area            from the register of Case C-98/95 : Commission of the
        actually determined is found to be less than that               European Communities v. Kingdom of Belgium .
        declared in the aid application when the difference
        more than 20 % but when no false intention or serious           (') OJ No C 159 , 24 . 6 . 1995 .
        negligence has been found ?
(') OJ No L 391 , 31 . 12 . 1992 , p . 36 .
( 2 ) OJ No L 156 , 7 . 7. 1995 , p . 27 .
                                                                              Removal from the register of Case C- 113/95 ( )
                                                                                95/C 351 /21 )
         Removal from the register of Case C-14/95 ( )                  By order of 4 October 1995 the President of the Court of
                                                                        Justice of the European Communities ordered the removal
                           ( 95/C 351 / 19                              from the register of Case C- 113/95 : Commission of the
                                                                        European Communities v. Italian Republic .
By order of 26 September 1995 the President of the Sixth
Chamber of the Court of Justice of the European                         (') OJ No C 159 , 24 . 6 . 1995 .
Communities ordered the removal from the register of Case
C-14/95 : Commission of the European Communities v.
Kingdom of Belgium .
(') O J No C 54 , 4 . 3 . 1995 .
                                                                              Removal from the register of Case C-125/95 ( )
                                                                                ( 95/C 351 /22 )
                                                                        By order of 24 October 1995 the President of the Court of
         Removal from the register of Case C-98/95 ( )                  Justice of the European Communities ordered the removal
                           ( 95/C 351 /20 )                             from the register of Case C-125/95 : Commission of the
                                                                        European Communities v. Portuguese Republic .
By order of 22 September 1995 the President of the Court of
Justice of the European Communities ordered the removal                 (') OJ No C 137, 3 . 6 . 1995 .
                                                       COURT OF FIRST INSTANCE
 JUDGMENT OF THE COURT OF FIRST INSTANCE                                should not be taken into consideration, and of the
                        of 19 October 1995                              defendant's decision of 22 March 1993 rejecting that
     in Case T-562/93 : Dieter Obst v. Commission of the
                                                                        application and, second, for compensation for the material
                                                                        and non-material damage allegedly suffered by the applicant
                    European Communities (')                            — the Court of First Instance ( Second Chamber ), composed
(Officials — Recruitment procedure — Act adversely                      of: B. Vesterdorf, President, and D. P. M. Barrington and A.
affecting an official — Article 45 of the StaffRegulations —            Saggio, Judges; H. Jung, Registrar, has given a judgment on
Notice of vacancy — Misuse of powers — Statement of                     19 October 1995 , in which it:
              reasons — Compensation for damage)
                            ( 95/C 351 /23 )                            1 . orders the Commission to pay to the applicant the sum
                                                                            of ECU 2 000 by way of damages for breach of
                 (Language of the case: German)                             duty;
In Case T-562/93 : Dieter Obst, an official of the                      2 . dismisses the remainder of the application;
Commission of the European Communities, residing at
Everberg ( Belgium ), represented initially by Heinz-Jorg
Moritz and subsequently by Lothar Mahlberg,                             3 . orders the Commission to bear its own costs and to pay
Rechtsanwalte, with an address for service in Luxembourg                    one quarter of the costs of the applicant, who is ordered
care of Marianne Moritz, 25a Rue de Schonfels, Bridel , v.                   to bear three quarters of his own costs.
Commission of the European Communities ( Agents : Joseph
Griesmar and Bertrand Wagenbaur ) — application, first, for             (') OJ No C 338 , 15 . 12 . 1993 .
the annulment of notice No 45/93 of the Advisory
Committee on Appointments of 18 February 1993 ,
inasmuch as it indicates that the application of the applicant