title: Case C-314/02: Action brought on 6 September 2002 by the Kingdom of the Netherlands against the Commission of the European Communities

text:
C 247/12               EN                      Official Journal of the European Communities                                    12.10.2002
Action brought on 6 September 2002 by the Kingdom of                            cannot possibly be used as a basis on which to assess
the Netherlands against the Commission of the European                          those measures, which were notified in 1995. According
                           Communities                                          to a Commission decision of 11 December 1998 relating
                                                                                to a German fiscal measure and taxation according
                         (Case C-314/02)                                        to tonnage (see: Staatliche Beihilfe No N 396/98 —
                                                                                Deutschland, SG(98) D/11575), there was in December
                         (2002/C 247/20)                                        1998 still no question whatever of port activities being
                                                                                excluded from aid measures within the maritime sector.
An action against the Commission of the European Communi-                       On the contrary, that decision brings (maritime) trans-
ties was brought before the Court of Justice of the European                    port, including that of tugs, in foreign ports expressly
Communities on 6 September 2002 by the Kingdom of the                           within the scope covered by the German measures.
Netherlands, represented by H.G. Sevenster, acting as Agent,                    Should the Commission, when carrying out its task of
with an address for service in The Hague.                                       constant review of existing aid measures, classify such a
                                                                                measure, whether on its own initiative or in response to
The Kingdom of the Netherlands claims that the Court should:                    a complaint, forthwith and retroactively as a new aid
                                                                                measure, that would be at variance with the system laid
1.    Annul Commission Decision C(2002) 2158 final of                           down in Article 88 EC and Regulation (EC) No 659/
      19 June 2002 concerning State aid provided by the                         1999.
      Netherlands in favour of the activities of Netherlands tug
                                                                                A claim for repayment as from 12 September 1990 is
      boats in seaports and inland waterways within the EU;
                                                                                contrary to the basis used by the Commission itself in its
2.    In the alternative, annul Article 3 of that Decision;                     investigation and is for that reason contrary to law.
                                                                                The contested decision is also otherwise ambiguous with
3.    Order the Commission to pay the costs.                                    regard to its scope. Use of the term ‘inland waterways’
                                                                                rests on the assumption that that term has a Community-
                                                                                wide definition; such, however, is not the case.
Pleas in law and main arguments
                                                                          —     Infringement of the principle of legal certainty.
—     Breach of law: the Netherlands Government disputes the
      Commission’s description in the contested decision of the           —     Failure to comply with the obligation to provide reasons.
      aid measures in question as constituting new aid. The
      Commission appears intent on suggesting that the
      Netherlands Government failed to indicate that the
      measures in question (‘tax incentives’ and ‘taxation
      according to tonnage’) could also apply to tug-boat
      services within ports and inland waterways. It is, however,                 Removal from the register of Case C-145/00 ( 1)
      clear from the documents available to the Commission
      that, with regard to tug-boat activities, it is only the                                    (2002/C 247/21)
      formal criterion as to whether a vessel can be treated as
      ‘sea-going’ that is conclusive in determining the scope of
      application of the measures in question. The place where            By order of 17 June 2002 the President of the Fifth Chamber
      the tug-boat activities are actually performed is irrelevant.       of the Court of Justice of the European Communities ordered
                                                                          the removal from the register of Case C-145/00: Commission
      The Commission erred in basing its decision as to the
      compatibility of the aid in question on the Community’s             of the European Communities v Kingdom of the Netherlands.
      1997 Guidelines on State aid to maritime transport (OJ
      1997 C 205 of 5 July 1997, p. 5). Those Guidelines                  (1 ) OJ C 233 of 12.8.2000.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 22 October 1998 in Joined Cases C-9/97 and C-118/97 (references for a preliminary ruling from the Maaseutuelinkeinojen Valituslautakunta (Finland): Raija-Liisa Jokela (C-9/97) and Laura Pitkäranta (C-118/97) (Definition of 'national court or tribunal' - Agriculture - Compensatory allowance for permanent natural handicaps - Conditions for granting the allowance)

text:
19.12.98             EN                Official Journal of the European Communities                                      C 397/3
              JUDGMENT OF THE COURT                                    transactions consisting of services supplied partly by
                                                                       himself and partly by other taxable persons, the VAT
                      (Fifth Chamber)                                  scheme under that article applies solely to the services
                                                                       supplied by third parties. A trader may not be required
                    of 22 October 1998
                                                                       to calculate the part of the package corresponding to
in Joined Cases C-308/96 and C-94/97 (references for a                 the in-house services by the actual cost method where
preliminary ruling from the High Court of Justice of                   it is possible to identify that part of the package on
England and Wales, Queen's Bench Division, and the VAT                 the basis of the market value of services similar to
and Duties Tribunal, London): Commissioners of Customs                 those which form part of the package.
and Excise v. T. P. Madgett and R. M. Baldwin, and T. P.
Madgett and R. M. Baldwin v. Commissioners of Customs
                        and Excise (1)                            (1) OJ C 336, 9.11.1996, and
                                                                      OJ C 131, 26.4.1997.
(VAT Ð Article 26 of the Sixth VAT Directive Ð Scheme
for travel agents and tour operators Ð Hotel undertakings
Ð Accommodation and travel package Ð Basis of
                 calculation of the margin)
                       (98/C 397/04)
                                                                                JUDGMENT OF THE COURT
               (Language of the case: English)
                                                                                (Fifth Chamber)
                                                                                of 22 October 1998
In Joined Cases C-308/96 and C-94/97: references to the           in Joined Cases C-9/97 and C-118/97 (references for a
Court under Article 177 of the EC Treaty from the High            preliminary ruling from the Maaseutuelinkeinojen
Court of Justice of England and Wales, Queen's Bench              Valituslautakunta (Finland): Raija-Liisa Jokela (C-9/97)
Division, and the VAT and Duties Tribunal, London, for                         and Laura Pitkäranta (C-118/97) (1)
preliminary rulings in the proceedings pending before
them between Commissioners of Customs and Excise and              (Definition of national court or tribunal' Ð Agriculture
T. P. Madgett and R. M. Baldwin, trading as The Howden            Ð Compensatory allowance for permanent natural
Court Hotel (Case C-308/96), and between T. P. Madgett                handicaps Ð Conditions for granting the allowance)
and R. M. Baldwin, trading as The Howden Court Hotel,
and Commissioners of Customs and Excise (Case C-94/97)                                     (98/C 397/05)
Ð on the interpretation of Article 26 of the Sixth Council
Directive 77/388/EEC of 17 May 1977 on the
harmonisation of the laws of the Member States relating
to turnover taxes Ð Common system of value added tax:                             (Language of the case: Finnish)
uniform basis of assessment (OJ L 145, 13.6.1977, p. 1)
Ð the Court (Fifth Chamber), composed of: J.-P.
Puissochet, President of the Chamber, J. C. Moitinho de
Almeida, C. Gulmann (Rapporteur), L. Sevón and M.
Wathelet, Judges; P. LeÂger, Advocate-General; H. A. Rühl,
Principal Administrator, for the Registrar, has given a             (Provisional translation; the definitive translation will be
judgment on 22 October 1998, in which it has ruled:                         published in the European Court Reports)
1. Article 26 of the Sixth Council Directive 77/388/EEC           In Joined Cases C-9/97 and C-118/97: References to the
    of 17 May 1977 on the harmonisation of the laws of            Court under Article 177 of the EC Treaty by the
    the Member States relating to turnover taxes Ð                Maaseutuelinkeinojen Valituslautakunta (Finland) for a
    Common system of value added tax: uniform basis of            preliminary ruling in the proceedings brought by Raija-
    assessment aplies to a hotelier who, in return for a          Liisa Jokela (C-9/97) and Laura Pitkäranta, represented by
    package price, habitually offers his customers, in            her guardian Anne Pitkäranta (C-118/97) Ð application
    addition to accommodation, return transport between           for the interpretation of Articles 17 and 18 of Council
    certain distant pick-up points and the hotel and a            Regulation (EEC) No 2328/91 of 15 July 1991 on
    coach excursion during their stay, those transport            improving the efficiency of agricultural structures (OJ
    services being bought in from third parties.                  L 218, 6.8.1991, p. 1), and Article 1 of Council Directive
                                                                  75/268/EEC of 28 April 1975 on mountain and hill
                                                                  farming and farming in certain less-favoured areas (OJ
                                                                  L 128, 19.5.1975, p. 1) Ð the Court (Fifth Chamber),
2. On a proper construction of Article 26 of the Sixth            composed of: J.-P. Puissochet, President of the Chamber, P.
    Directive 77/388/EEC, where a trader subject to that          Jann (Rapporteur), J. C. Moitinho de Almeida, C.
    article effects, in return for a package price,               Gulmann and M. Wathelet, Judges; J. Mischo, Advocate-
 ---pagebreak--- C 397/4               EN                  Official Journal of the European Communities                                     19.12.98
General; H. von Holstein, Deputy Registrar, has given a              Mafar Srl (C-22/97) Ð on the consequences arising under
judgment on 22 October 1998, in which it:                            national law from the incompatibility of a domestic
                                                                     charge with Community law Ð the Court, composed of:
                                                                     G. C. Rodríguez Iglesias, President, P. J. G. Kapteyn, J.-P.
1. It is not contrary to Articles 17 and 18 of Council               Puissochet (Rapporteur), G. Hirsch and P. Jann (Presidents
     Regulation (EEC) No 2328/91 of 15 July 1991 on                  of Chambers), G. F. Mancini, J. C. Moitinho de Almeida,
     improving the efficiency of agricultural structures or to       C. Gulmann, J. L. Murray, D. A. O. Edward, H.
     Article 1 of Council Directive 75/268/EEC of 28 April           Ragnemalm, L. Sevón, M. Wathelet, R. Schintgen and
     1975 on mountain and hill farming and farming in                K. M. Ioannou, Judges; D. Ruiz-Jarabo Colomer,
     certain less-favoured areas to grant a compensatory             Advocate-General; H. von Holstein, Deputy Registrar, for
     allowance for permanent natural handicaps to a                  the Registrar, has given a judgment on 22 October 1998,
     farmer whose home is not on the farm.                           in which it has ruled:
2. It is not contrary either to the principle of equal               The obligation on a national court to disapply national
     treatment or to that of legal certainty for a farmer            legislation introducing a charge contrary to Community
     claiming the compensatory allowance who does not                law must lead that court, in principle, to uphold claims
     live on his farm but more than 12 kilometres by road            for repayment of that charge. Such repayment must be
     from its operational centre to be required to work the          ensured in accordance with the provisions of its national
     farm himself, to derive at least 50 % of his income             law, on condition that those provisions are not less
     from farming or similar activities and, in addition, to         favourable than those governing similar domestic actions
     establish the existence of special grounds.                     and do not render virtually impossible or excessively
                                                                     difficult the exercise of rights conferred by Community
                                                                     law. Any reclassification of the legal relationship
(1) OJ C 74, 8.3.1997, and                                           established between the tax authorities of a Member State
    OJ C 166, 31.5.1997.
                                                                     and certain companies in that State when a domestic
                                                                     charge subsequently found to be contrary to Community
                                                                     law was levied is therefore a matter for national law.
                                                                     (1) OJ C 94, 22.3.1997.
               JUDGMENT OF THE COURT
                     of 22 October 1998
in Joined Cases C-10/97 to C-22/97 (references for a
preliminary ruling from the Pretura Circondariale di
Roma): Ministero delle Finanze v. IN.CO.GE.'90 Srl and                              JUDGMENT OF THE COURT
                           Others (1)
                                                                                (Sixth Chamber)
(Recovery of sums paid but not due Ð Treatment of a
    national charge incompatible with Community law)                                      of 22 October 1998
                         (98/C 397/06)                               in Joined Cases C-36/97 and C-37/97 (references for a
                                                                     preliminary ruling from the Schleswig-Holsteinisches
                                                                     Verwaltungsgericht): Hilmar Kellinghusen v. Amt für
                                                                     Land- und Wasserwirtschaft Kiel and Ernst-Detlef Ketelsen
                (Language of the case: Italian)
                                                                           v. Amt für Land- und Wasserwirtschaft Husum (1)
                                                                     (Common agricultural policy Ð Administrative fees Ð
                                                                                Charging to beneficiaries)
  (Provisional translation; the definitive translation will be
          published in the European Court Reports)                                           (98/C 397/07)
In Joined Cases C-10/97 to C-22/97: references to the                               (Language of the case: German)
Court under Article 177 of the EC Treaty from the
Pretura Circondariale di Roma (District Magistrate's
Court, Rome) (Italy) for a preliminary ruling in the
proceedings pending before that court between Ministero
                                                                       (Provisional translation; the definitive translation will be
delle Finanze and IN.CO.GE.'90 Srl (C-10/97), Idelgard
                                                                               published in the European Court Reports)
Srl (C-11/97), Iris'90 Srl (C-12/97), Camed Srl (C-13/97),
Pomieza Progetti Appalti Srl (PPA) (C-14/97), Edilcam Srl
(C-15/97), A. Cecchini & C. Srl (C-16/97), EMO Srl
(C-17/97), Emoda Srl (C-18/97), Sappesi Srl (C-19/97),               In Joined Cases C-36/97 and C-37/97: references to
Ing. Luigi Martini Srl (C-20/97), Giacomo Srl (C-21/97),             the Court under Article 177 of the EC Treaty by the


title: Action brought on 6 October 1995 by Marco Mazzocchi-Alemanni against the Commission of the European Communities (Case T-186/95)

text:
No C 333/ 18          EN                  Official Journal of the European Communities                                     9 . 12 . 95
have been paid for already by the sums paid during the               publication, the general implementing provisions applicable
course of the contract and that therefore nothing further            did not provide that the abovementioned six-month period
was due to the undertaking.                                          had to be complied with 'on pain of a request being declared
                                                                     time-barred '.
The legal representative of the undertaking then wrote to the
authorities of the Centre, making counter-allegations highly         The applicant based the request giving rise to the contested
insulting to the applicant. At the same time the applicant           decision on, first, the fact that he had been unable to comply
received a great many anonymous telephone calls which                with the six-month period laid down by the general
openly threatened him and his family .                               implementing provisions because he was on leave on
                                                                     personal grounds when the agreement with the Italian
The applicant perceived that those facts constituted the             authority was published and, second, the fact that he had
situation envisaged by the first subparagraph of Article 24          not been informed before 15 March 1994 , the date on which
of the Staff Regulations and on 28 July 1994 he submitted            the judgment in Case T- 100/92 La Pietra was delivered, that
a request to the appointing authority for the assistance             this period allowed account to be taken of circumstances
provided for in such circumstances. The appointing                   excusing delay in making a request other than force
authority has made no reply to that request.                         majeure .
                                                                     The applicant first of all contends that it was open to the
                                                                     Commission to notify its officials of the agreement in
                                                                     question through the medium of the Administrative Notices
                                                                     as well as through the Official Journal of the European
Action brought on 8 October 1995 by Giovanni Sergio                  Communities. In view of the fact that the defendant chose
     against Commission of the European Communities                  the former option, the applicant cannot then be deemed to
                       ( Case T-185 /95 )                            have been aware of the texts thus published, with the result
                                                                     that the time-limit provided for by the general implementing
                         ( 95/C 333/34 )                             provisions and the dies a quo resulting from the publication
                                                                     of the agreement or from his reinstatement in his post after
                (Language of the case: French)                       leave on personal grounds can operate against him only
                                                                     from the date on which he became aware of them .
An action against the Commission of the European                     Furthermore, as follows from the judgment in Case T-70/91
Communities was brought before the Court of First                    Moretto, it is now established that a failure to comply with
Instance of the European Communities on 8 October 1995               the six-month period may be justified by facts, other than
by Giovanni Sergio, residing in Brussels ( Belgium ),                force majeure, which are not attributable to fault on the part
                                                                     of the official concerned .
represented by Marc-Albert Lucas, of the Liege Bar.
                                                                     Finally, the applicant claims that he cannot be deemed to
The applicant claims that the Court should :                         have been aware of the judgment in Moretto on the date of
                                                                     its delivery or of its publication in the European Court
— annul the Commission decision 7 July 1994 ,                        Reports, since the Commission has the duty to inform its
                                                                     staff of the consequences of judgments having particular
— recognize the applicant's option, under Article 11 ( 2 ) of        significance for Community officials .
     Annex VIII to the Staff Regulations, to transfer pension
     rights acquired in Italy from 22 November 1961 to
     21 November 1964 in respect of his service with the
     authorities of the Commune of Cutro,
— order the defendant to pay the costs .
                                                                            Action brought on 6 October 1995 by Marco
Pleas in law and main arguments:                                         Mazzocchi-Alemanni against the Commission of the
                                                                                European Communities
The applicant, an official working with the Commission,
                                                                                ( Case T- 186/95 )
 contests the refusal to grant his request for the transfer of
 pension rights which he had acquired prior to his                                             ( 95/C 333/35 )
 appointment, when he was working in Italy.
                                                                                (Language of the case: French)
 Pursuant to Article 11 ( 2 ) of Annex VIII to the Staff
 Regulations, the Commission adopted a number of general
 implementing provisions, which laid down a six-month                 An action against the Commission of the European
 period within which such a transfer had to be requested; at          Communities was brought before the Court of First
 the time when agreement was reached with the competent               Instance of the European Communities on 6 October 1995
 Italian authority which made this transfer possible, the             by Marco Mazzocchi-Alemanni, residing in Libreville
 applicant was on leave on personal grounds and was                   ( Gabon ), represented by Nicolas Lhoest, of the Brussels Bar,
 therefore unable to be aware of this. This agreement was             with an address for service in Luxembourg at the office of
 published in the Administrative Notices. At the time of this         Fiduciaire Myson S.ar.l., 1 Rue Glesener.
 ---pagebreak--- 9 . 12 . 95            EN                 Official Journal of the European Communities                                    No C 333/ 19
The applicant claims that the Court should:                               the other four pleas advanced by the applicant ) order
                                                                          the Commission to examine all internal documents
— annul the decision of the Commission of 9 November                      connected with the adoption of the contested decision,
     1994 refusing the applicant full reimbursement of the                in order to determine whether that decision was adopted
     difference between the medical expenses actually                     in accordance with the principle of collegiality and the
     incurred and payments from the Joint Sickness                        Commission's rules of procedure;
     Insurance Scheme, in accordance with Article 24 of
     Annex X to the Staff Regulations,                               3 . order the defendant to pay all of the costs of the
                                                                          proceedings.
— annul, in so far as may be necessary, the decision
     adopted by the Commission on 3 July 1995 in response            Pleas in law and main arguments:
    to the complaint;
                                                                     1 . The Commission has failed, with regard to the aid
— order the defendant to pay in full the difference between               measures approved in the contested decision, to initiate
    the expenses actually incurred and payments from the                  without delay the formal procedure under Article 93 ( 2 )
    Joint Sickness Insurance Scheme, amounting in the                     of the EC Treaty, since the aid provisions of the Law on
    present case to Bfr 253 353 ;                                         the fiscal regime in respect of environmental protection
                                                                          give rise to a number of serious problems which cannot
— declare that the General Provisions implementing the                    be resolved by carrying out the prima facie examination
    first and second paragraphs of Annex X to the Staff                   provided for by Article 93 ( 3 ).
    Regulations are unlawful, and consequently withdraw
    them;                                                            2 . Inadequate and contradictory reasoning.
— order the defendant to pay all the costs .                         3 . Breach of general principles of Community law:
                                                                          deviation from its own published guidelines , in
Pleas in law and main arguments:                                          particular the 'framework rules on aid for
                                                                          environmental protection' ( OJ 1994 C 72 , p. 3 ).
The pleas in law and main arguments are the same as those
relied on in Case T-21 /95 ( ).                                     4 . The Commission has exceeded its powers : approval of
                                                                          an aid measure of unspecified duration on condition
(') OJ No C 87, 8 . 4 . 1995 , p . 15 .
                                                                          that, following a specific date, it is not to be further
                                                                          implemented without first having been renotified to the
                                                                          Commission : approval was thus granted subject to a
                                                                          ' resolutive condition '.
                                                                     5.   It is assumed that the Commission has failed to observe
                                                                          the principle of collegiality: hence the application for
Action brought on 9 October 1995 by NV Waterleiding                       measures of inquiry.
Maatschappij 'Noord-West Brabant' against the
         Commission of the European Communities                      6 . The Commission wrongly refused to review its earlier
                        ( Case T-188/95 )                                 judgment concerning previously notified aid measures
                          ( 95/C 333/36 )                                 which hat not yet been implemented, irrespective of the
                                                                          fact that the new framework rules had meanwhile
                                                                          entered into force .
                (Language of the case: Dutch)
                                                                     (') That decision, addressed to the Netherlands Government,
An action against the Commission of the European                         declares that the aid measures contained in the Law on the fiscal
Communities was brought before the Court of First                        regime in respect of environmental protection, whereby taxes
Instance of the European Communities on 9 October 1995                   are to be introduced in relation to groundwater, waste products,
by NV Waterleiding Maatschappij 'Noord-West Brabant',                    fuels and uranium 235 , are compatible with the common
established pursuant to statute at Oudenbosch                            market .
( Netherlands ), represented by P. H. L. M. Kuypers, of the
Breda Bar, and H. M. Gilliams, of the Brussels Bar, with an
address for service in Luxembourg at the Chambers of
J.-M. Bauler, 47 Grand-Rue .
                                                                     Action brought on 9 October 1995 by Service pour le
The applicant claims that the Court should :                         Groupement d'Acquisitions ( SGA ) against the Commission
                                                                                of the European Communities
1 . declare the action admissible and well-founded and
                                                                                Case T-189/95 )
     consequently annul decision SG(95 ) D/8442 of the
     Commission of 3 July 1995 concerning aid case No                                           ( 95/C 333/37 )
     NN 13/95 ( Netherlands — Law on the fiscal regime in
     respect of environmental protection ) ( [ );                                      (Language of the case: French)
2 . ( only in the event that the Court considers that the            An action against the Commission of the European
     contested decision cannot be annulled on the grounds of         Communities was brought before the Court of First


title: Case C-391/07: Reference for a preliminary ruling from the Finanzgericht Hamburg lodged on 20 August 2007 — Glencore Grain Rotterdam BV v Hauptzollamt Hamburg-Jonas

text:
               10.11.2007

               EN

               Official Journal of the European Union

               C 269/30

         Reference for a preliminary ruling from the Finanzgericht Hamburg lodged on 20 August 2007 — Glencore Grain Rotterdam BV v Hauptzollamt Hamburg-Jonas
   (Case C-391/07)
   (2007/C 269/52)
   Language of the case: German
   Referring court
   Finanzgericht Hamburg
   Parties to the main proceedings

      Applicant: Glencore Grain Rotterdam BV

      Defendant: Hauptzollamt Hamburg-Jonas
   Questions referred:
   Must Article 13 of Regulation (EC) No 1501/95 be interpreted as meaning that production of the proof described in the second paragraph thereof results in waiver of the need not only for proof of completion of customs formalities for release for consumption but also for production of the transport documents (Article 18(3) of Regulation (EEC) No 3665/87, now Article 16(3) of Regulation (EC) No 800/99)?


title: Case C-183/15: Judgment of the Court (Seventh Chamber) of 10 December 2015 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — TSI GmbH v Hauptzollamt Aachen (Reference for a preliminary ruling — Common Customs Tariff — Tariff classification — Combined Nomenclature — Sub-heading 9027 10 10 — Ultraviolet aerodynamic particle sizer spectrometers — Handheld particle counters)

text:
               8.2.2016

               EN

               Official Journal of the European Union

               C 48/6

         Judgment of the Court (Seventh Chamber) of 10 December 2015 (request for a preliminary ruling from the Finanzgericht Düsseldorf — Germany) — TSI GmbH v Hauptzollamt Aachen
   (Case C-183/15) (1)

   ((Reference for a preliminary ruling - Common Customs Tariff - Tariff classification - Combined Nomenclature - Sub-heading 9027 10 10 - Ultraviolet aerodynamic particle sizer spectrometers - Handheld particle counters))
   (2016/C 048/09)
   Language of the case: German

      Referring court

   Finanzgericht Düsseldorf

      Parties to the main proceedings

      Applicant: TSI GmbH

      Defendant: Hauptzollamt Aachen

      Operative part of the judgment

   The Combined Nomenclature in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, as amended by Commission Regulation (EC) No 1031/2008 of 19 September 2008 must be interpreted as meaning that ultraviolet aerodynamic particle sizer spectrometers and handheld particle counters, such as those at issue in the main proceedings, do not fall under subheading 9027 10 10 thereof.

      (1)  OJ C 254, 3.8.2015.


title: Judgment of the Court (Second Chamber) of 12 May 2005 in Case C-444/03: Reference for a preliminary ruling from the Verwaltungsgericht Berlin Meta Fackler KG v Bundesrepublik Deutschland (Medicinal products for human use — Homeopathic medicinal products — National provision excluding from the special, simplified registration procedure a medicinal product composed of known homeopathic substances if its use as a homeopathic medicinal product is not generally known)

text:
               23.7.2005

               EN

               Official Journal of the European Union

               C 182/11

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 12 May 2005
   in Case C-444/03: Reference for a preliminary ruling from the Verwaltungsgericht Berlin Meta Fackler KG v Bundesrepublik Deutschland (1)

   (Medicinal products for human use - Homeopathic medicinal products - National provision excluding from the special, simplified registration procedure a medicinal product composed of known homeopathic substances if its use as a homeopathic medicinal product is not generally known)
   (2005/C 182/20)
   Language of the case: German
   In Case C-444/03: reference for a preliminary ruling under Article 234 EC from the Verwaltungsgericht Berlin (Germany), made by decision of 28 August 2003, received at the Court on 21 October 2003, in the proceedings between Meta Fackler KG and Bundesrepublik Deutschland — the Court (Second Chamber), composed of C.W.A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann (Rapporteur), P. Kūris and J. Klučka, Judges; P. Léger, Advocate General, K. Sztranc, Administrator, for the Registrar, gave a judgment on 12 May 2005, the operative part of which is as follows:
   Articles 14 and 15 of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use must be interpreted as meaning that they preclude a national provision which does not permit use of the special simplified registration procedure for a medicinal product composed of several known homeopathic substances where its use as a homeopathic medicinal product is not generally known.

      (1)  OJ C 21 of 24.01.2004.


title: Case T-140/13: Action brought on 8 March 2013 — Scheepsbouw Nederland v Commission

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/22

         Action brought on 8 March 2013 — Scheepsbouw Nederland v Commission
   (Case T-140/13)
   2013/C 147/39
   Language of the case: English

      Parties

      Applicant: Scheepsbouw Nederland (Rotterdam, Netherlands) (represented by: K. Struckmann, lawyer, and G. Forwood, Barrister)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the European Commission of 20 November 2012 in case SA.34736 (Early depreciation of certain assets acquired through a financial leasing), published in the Official Journal of the European Union on 13 December 2012 (OJ 2012 C 384, p. 2); and

               —

               Order the defendant to pay the costs of these proceedings.

      Pleas in law and main arguments

   In support of the action, the applicant relies on one plea in law, alleging that the Commission failed to comply with Article 108(3) TFEU and Article 4(2) and 4(3) of Council Regulation (EC) No 659/1999 (1).
   In this respect, the applicant argues that, in view of the circumstances of the case, as well as the insufficient and incomplete nature of the substantive examination carried out by the Commission during the preliminary examination procedure, there is sufficient evidence of the existence of serious difficulties as to the assessment of the proposed measure. The Commission was therefore not properly able to conclude, following its preliminary examination, that the measure in question was not State aid within the meaning of Article 107(1) TFEU. The Commission had no choice but to open the formal investigation procedure under Article 108(2) TFEU.

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


title: Case T-426/15: Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)

text:
               5.10.2015

               EN

               Official Journal of the European Union

               C 328/17

         Action brought on 29 July 2015 — Schräder v CPVO — Hansson (Seimora)
   (Case T-426/15)
   (2015/C 328/17)
   Language in which the application was lodged: German

      Parties

      Applicant: Ralf Schräder (Lüdinghausen, Germany) (represented by: T. Leidereiter, lawyer)

      Defendant: Community Plant Variety Office (CPVO)

      Other party to the proceedings before the Board of Appeal: Jørn Hansson (Søndersø, Denmark)

      Details of the proceedings before the CPVO

      Proprietor of the Community plant variety right at issue: Other party to the proceedings before the Board of Appeal

      Community plant variety right at issue: Community variety EU 8536 ‘SEIMORA’

      Procedure before the CPVO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the Board of Appeal of the CPVO of 24 February 2015 in Case A002/2014

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               order the CPVO to pay the costs.

      Pleas in law

               —

               Infringement of Article 75 of Regulation No 2100/94;

               —

               Infringement of Article 20(1)(c) of Regulation No 2100/94 read in conjunction with Articles 11(1), 54(2) and 76 of Regulation No 2100/94 and Article 51 of Regulation No 874/2009.


title: Case T-657/13: Action brought on 11 December 2013 — BH Stores v OHIM — Alex Toys (ALEX)

text:
               1.3.2014

               EN

               Official Journal of the European Union

               C 61/11

         Action brought on 11 December 2013 — BH Stores v OHIM — Alex Toys (ALEX)
   (Case T-657/13)
   2014/C 61/19
   Language in which the application was lodged: English

      Parties

      Applicant: BH Stores BV (Curaçao) (represented by: T. Dolde and M. Hawkins, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Alex Toys LLC (Greenwich, United States of America)

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the Second Board of Appeal of the Office for Harmonization in the Internal Market (Trade Marks and Designs) of 16 September 2013 given in Case R 1950/2012-2;

               —

               Order the defendant to bear the costs of proceedings.

      Pleas in law and main arguments

      Applicant for a Community trade mark: The other party to the proceedings before the Board of Appeal

      Community trade mark concerned: The word mark ‘ALEX’ for goods in Classes 16, 20, and 28 — Community trade mark application No 6 540 173

      Proprietor of the mark or sign cited in the opposition proceedings: The applicant

      Mark or sign cited in opposition: The German trade mark registration Nos 1 049 274 and 648 968 for the word mark ‘ALEX’ and the German trade mark registration No 39 925 705 for the figurative mark containing the verbal element ‘ALEX’ for goods in Class 28

      Decision of the Opposition Division: Rejected the opposition

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Articles 75 and 8(1)(b) CTMR


title: Case T-243/17: Action brought on 24 April 2017 — Ecolab Deutschland and Lysoform Dr. Hans Rosemann v ECHA

text:
               10.7.2017

               EN

               Official Journal of the European Union

               C 221/31

         Action brought on 24 April 2017 — Ecolab Deutschland and Lysoform Dr. Hans Rosemann v ECHA
   (Case T-243/17)
   (2017/C 221/44)
   Language of the case: English

      Parties

      Applicants: Ecolab Deutschland GmbH (Monheim, Germany) and Lysoform Dr. Hans Rosemann GmbH (Berlin, Germany) (represented by: K. Van Maldegem, M. Grunchard and P. Sellar, lawyers)

      Defendant: European Chemicals Agency

      Form of order sought

   The applicants claim that the Court should:

               —

               declare the application admissibble and well-founded;

               —

               annul the decision of the European Chemicals Agency (‘ECHA’) concerning the inclusion of the company Sasol Chemie GmbH & Co. KG, as active supplier for the substance 1-Propanol on the list provided by Article 95(1) of Regulation (EU) No 528/2012 (1) (the ‘Article 95 List’) for product types 1, 2 and 4;

               —

               order ECHA to pay the costs of these proceedings.

      Pleas in law and main arguments

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

               1.

               First plea in law, alleging an infringement of Article 95(1), second paragraph, of Regulation (EU) No 528/2012

                           —

                           The applicants put forward that ECHA has failed to follow the legal conditions for the inclusion of a company such as Sasol in the Article 95 List as provided for in Article 95(1) of Regulation (EU) No 528/2012, as it was not possible for Sasol to have submitted a complete dossier to ECHA. According to the applicants, its dossier cannot have included either a copy of the Comet Assay test or a letter of access granting reference rights to that test.

               2.

               Second plea in law, alleging an infringement of the principle of non-discrimination

                           —

                           The applicants put forward that by accepting the dossier submitted by Sasol for the purpose of Article 95 List inclusion as complete, ECHA has treated companies in a similar situation differently without objective justification in breach of the principle of non-discrimination.

               3.

               Third plea in law, alleging an infringement of the level playing field established by Regulation (EU) No 528/2012 as well as the creation of unfair competition

                           —

                           The applicants claim that by including Sasol on the Article 95 List, ECHA has failed to apply the rules under Articles 62 and 63 of Regulation (EU) No 528/2012 which are designed to ensure a level playing field between those companies such as the applicants which have taken part in the 1-Propanol review and those, such as Sasol, which have not.

      (1)  Regulation (EU) No 528/2012 of the European Parliament and of the Council of 22 May 2012 concerning the making available on the market and use of biocidal products (OJ L 167, p. 1).


title: Case F-126/06: Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 Magazzu v Commission (Staff cases — Officials — Appointment — Members of the temporary staff appointed as officials — Candidates’ names included on a reserve list of a competition published prior to the entry into force of the new Staff Regulations — Grading pursuant to the new less favourable rules — Acquired rights — Principle of non-discrimination — Articles 2, 5 and 12 of Annex XIII to the Staff Regulations)

text:
               11.9.2010

               EN

               Official Journal of the European Union

               C 246/40

         Judgment of the Civil Service Tribunal (Second Chamber) of 8 July 2010 Magazzu v Commission
   (Case F-126/06) (1)

   (Staff cases - Officials - Appointment - Members of the temporary staff appointed as officials - Candidates’ names included on a reserve list of a competition published prior to the entry into force of the new Staff Regulations - Grading pursuant to the new less favourable rules - Acquired rights - Principle of non-discrimination - Articles 2, 5 and 12 of Annex XIII to the Staff Regulations)
   2010/C 246/68
   Language of the case: French

      Parties

      Applicant: Salvatore Magazzu (Brussels, Belgium) (represented by: initially T. Bontinck and J. Feld, lawyers, and subsequently T. Bontinck and S. Woog, lawyers)

      Defendant: European Commission (represented by: J. Currall and G. Berscheid, agents)

      Re:

   Application for annulment of the decision of the Appointing Authority of 13 December 2005 by which the applicant, a temporary agent in Grade A*11 who was successful in open competition COM/A/18/04, was appointed as an official with classification in Grade A*6, step 2, in accordance with Annex XIII of the Staff Regulations.

      Operative part of the judgment

   The Tribunal:

               1.

               Dismisses the application.

               2.

               Orders each party to bear their own costs.

      (1)  OJ C 310, 16.12.2006, p. 32.


title: Case T-294/14: Action brought on 2 May 2014  — Klemme v Commission

text:
               14.7.2014

               EN

               Official Journal of the European Union

               C 223/43

         Action brought on 2 May 2014 — Klemme v Commission
   (Case T-294/14)
   2014/C 223/46
   Language of the case: German

      Parties

      Applicant: Klemme AG (Lutherstadt Eisleben, Germany) (represented by: T. Volz, M. Ringel, B. Wißmann, M. Püstow, C. Oehme and T. Wielsch, lawyers)

      Defendant: European Commission

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the decision of the European Commission of 18 December 2013 to open the formal investigation procedure under Article 108(2) TFEU against the Federal Republic of Germany regarding the support for renewable electricity and the reduced EEG-surcharge for energy-intensive users, State aid SA.33995 (2013/C) (ex 2013/NN), in so far as it applies to the reduction of the EEG-surcharge for energy-intensive users;

               —

               order the defendant to pay the costs.

      Pleas in law and main arguments

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

               1.

               First plea in law: No advantage within the meaning of Article 107(1) TFEU

                           —

                           The applicant claims that the reduction of the EEG-surcharge for energy-intensive users, provided for in the Gesetz für den Vorrang erneuerbarer Energien (Law for the priority of renewable energy sources, hereinafter referred to as EEG), does not constitute aid within the meaning of Article 107(1) TFEU. In this context, the applicant states that energy-intensive users are not favoured by the arrangement. The special compensation regime is, instead, compensation for exceptional costs which affect the applicant and comparable users to a special degree in the context of the support for renewable electricity, and is intended to re-establish the competitiveness of energy-intensive users who were initially considerably adversely affected by the EEG-surcharge.

               2.

               Second plea in law: No State resources within the meaning of Article 107(1) TFEU

                           —

                           In addition, the applicant claims that the special compensation regime does not constitute a measure granted ‘by a Member State or through State resources’. The applicant states, in this context, that the EEG-surcharge is not a State resource and that even a waiver of those resources by the special compensation regime cannot therefore constitute a measure granted through State resources.

                           —

                           The EEG-surcharge is not collected, administered or even allocated by the State or by a public or private institution nominated or established by the State. Instead, the EEG-surcharge can be directly collected by the transmission system operators on the basis of a corresponding entitlement under civil law. The EEG-surcharge does not benefit the State budget, and consequently the special compensation regime in no way indirectly or directly reduces State revenue.

                           —

                           The EEG-resources are also not available to State authorities. There is also no public control over the EEG-resources, such as by the Bundesamt für Wirtschaft und Ausfuhrkontrolle (Federal Office of Economics and Export Control, BAFA) or the Bundesnetzagentur (Federal Network Agency).


title: Case C-42/05: Reference for a preliminary ruling from the Cour de cassation de Belgique (Court of Cassation, Belgium) (First Chamber), by order of that court of 20 January 2005, in the case of the Belgian State v Ring Occasions and Fortis Banque

text:
               16.4.2005

               EN

               Official Journal of the European Union

               C 93/9

         Reference for a preliminary ruling from the Cour de cassation de Belgique (Court of Cassation, Belgium) (First Chamber), by order of that court of 20 January 2005, in the case of the Belgian State v Ring Occasions and Fortis Banque
   (Case C-42/05)
   (2005/C 93/17)
   Language of the case: French
   Reference has been made to the Court of Justice of the European Communities by order of the Cour de cassation de Belgique (First Chamber), of 20 January 2005, received at the Court Registry on 3 February 2005, for a preliminary ruling in the proceedings between the Belgian State and Ring Occasions and Fortis Banque, on the following questions:

               1.

               Where the recipient of a supply of goods is a taxable person who has entered into a contract in good faith without knowledge of a fraud committed by the seller, does the principle of fiscal neutrality in respect of value added tax mean that the fact that the contract of sale is void, by reason of a rule of domestic civil law which renders the contract incurably void as contrary to public policy on the ground of illegal basis of the contract attributable to the seller, cannot cause that taxable person to lose his right to deduct that tax?

               2.

               Is the answer different where the contract is incurably void for fraudulent evasion of VAT itself?


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 16 July 1998 in Case T-72/97: Proderec - Formação e Desinvolvimento de Recursos Humanos, ACE v. Commission of the European Communities (European Social Fund - Decision to reduce two financial aids - Action for annulment - Admissibility - Certification of factual and accounting accuracy - Lack of competence of the national body - Statement of reasons - Rights of the defence)

text:
C 312/10             EN                  Official Journal of the European Communities                                  10.10.98
                                                   COURT OF FIRST INSTANCE
  JUDGMENT OF THE COURT OF FIRST INSTANCE                             JUDGMENT OF THE COURT OF FIRST INSTANCE
                       of 21 July 1998                                                     of 16 July 1998
                                                                    in Case T-93/96 Catherine Presle v. European Centre for
in Joined Cases T-66/96 and T-221/97: John Mellett v.
                                                                             the Development of Vocational Training (1)
     Court of Justice of the European Communities (1)
                                                                    (Officials Ð Change of posting Ð Obligation to state
(Officials Ð Admissibility Ð Establishment Ð Legitimate             reasons Ð Principle of protection of legitimate
              expectations Ð Equal treatment)                                       expectations Ð Duty of care)
                        (98/C 312/26)                                                        (98/C 312/27)
                                                                                (Language of the case: German)
               (Language of the case: English)
                                                                    In Case T-93/96 Catherine Presle, an official of the
                                                                    European Centre for the Development of Vocational
                                                                    Training, residing in Berlin, represented by Frank Montag,
In Joined Cases T-66/96 and T-221/97: John Mellett, a               of the Brussels Bar, with an address for service in
member of the temporary staff at the Court of Justice of            Luxembourg at the Chambers of Aloyse May, 31 Grand-
the European Communities, residing at 61 Rue des                    rue, against European Centre for the Development of
Maraîchers, Plateau du Kirchberg, Luxembourg,                       Vocational Training (Agent: Bertrand Wägenbaur) Ð
represented by Brendan O'Donovan, Solicitor, and Conor              application for annulment of the decision of the European
Quigley, Barrister, with an address for service in                  Centre for the Development of Vocational Training of
Luxembourg at the aforementioned address, against Court             22 May 1996 transferring the applicant to Thessalonika
of Justice of the European Communities (Agent: Timothy              (Greece) as from 1 July 1996 Ð the Court (Fifth
Millett) Ð application, in Case T-66/96, for annulment of           Chamber), composed of: J. Azizi, President, and R.
the decision of the Court of Justice of the European                García-Valdecasas and M. Jaeger, Judges; H. Jung,
Communities of 14 June 1995 and, in Case T-221/97, for              Registrar, gave a judgment on 16 July 1998, the operative
annulment of the decisions of the President of the Court            part of which is as follows:
of Justice of 17 October 1996 and 4 December 1996 not
to commence the procedure leading to the establishment
of the applicant as a permanent official Ð the Court of             1. The application is dismissed.
First Instance (Fifth Chamber), composed of: J. Azizi,
President, R. García-Valdecasas and M. Jaeger, Judges; A.           2. Each of the parties shall bear their own costs,
Mair, Administrator, for the Registrar, has given a                     including those incurred in the interim proceedings.
judgment on 21 July 1998, in which it:
                                                                    (1) OJ C 233, 10.8.1996.
1. joins Cases T-66/96 and T-221/97 for the purposes of
    the judgment;
                                                                      JUDGMENT OF THE COURT OF FIRST INSTANCE
2. annuls the decision of 14 June 1995 of the
    Administrative Committee of the Court of Justice, as it                                of 16 July 1998
    is apparent from point 4 of the minutes, and the                in Case T-72/97: Proderec Ð FormacËaÄo e Desinvolvi-
    decisions of the President of the Court of Justice of           mento de Recursos Humanos, ACE v. Commission of the
    17 October 1996 and 4 December 1996 not to                                        European Communities (1)
    commence the procedure which could have led to the
    establishment of the applicant as a permanent official;         (European Social Fund Ð Decision to reduce two financial
                                                                    aids Ð Action for annulment Ð Admissibility Ð
                                                                    Certification of factual and accounting accuracy Ð Lack
                                                                    of competence of the national body Ð Statement of
3. orders the Court of Justice to pay the costs in Case                           reasons Ð Rights of the defence)
    T-66/96 and in Case T-221/97.
                                                                                (98/C 312/28)
(1) OJ C 233, 10.8.1996 and C 331, 1.11.1997.                                    (Language of the case: Portuguese)
                                                                    In Case T-72/97: Proderec FormacËaÄo e Desinvolvimento
                                                                    de Recursos Humanos, ACE, established in Almada
 ---pagebreak--- 10.10.98             EN                Official Journal of the European Communities                                  C 312/11
(Portugal), represented by Manuel Rodrigues, of the                    ORDER OF THE COURT OF FIRST INSTANCE
Lisbon Bar, v. Commission of the European Communities                                    of 16 July 1998
(Agents: Maria Teresa Figueira and Knut Simonsson) Ð
application for the annulment of Commission Decisions             in Case T-274/97: Ca'Pasta Srl v. Commission of the
C(96) 2554 and C(96) 2555 of 9 December 1996 reducing                               European Communities (1)
two Community aids granted by the European Social Fund
                                                                  (Regulation (EEC) No 4028/86 Ð Common fisheries
Ð the Court (Fourth Chamber), composed of: P. Lindh,
                                                                  policy Ð Community financial assistance Ð Procedure for
President, K. Lenaerts and J. D. Cooke, Judges; B. Pastor,
                                                                  cancelling the assistance Ð Action for annulment Ð
Principal Administrator, for the Registrar, has given a
                                                                                Inadmissibility)
judgment on 16 July 1998, in which it:
                                                                                (98/C 312/30)
1. dismisses the action;
                                                                                (Language of the case: Italian)
2. orders the applicant to pay the costs.
                                                                  In Case T-274/97: Ca'Pasta Srl, represented by Paolo Piva,
                                                                  of the Venice Bar, and Guy Arendt, of the Luxembourg
(1) OJ C 166, 31.5.1997.
                                                                  Bar, with an address for service in Luxembourg at the
                                                                  latter's Chambers, 7 Val Sainte-Croix v. Commission of
                                                                  the European Communities (Agents: Hubert van Vliet and
                                                                  Alberto Dal Ferro) Ð application for annulment of a
                                                                  decision allegedly contained in a letter of 4 August 1997
                                                                  sent by the Commission to the applicant Ð the Court of
     ORDER OF THE COURT OF FIRST INSTANCE                         First Instance (Third Chamber), composed of: V. Tiili,
                                                                  President, and C. P. BrieÈt and A. Potocki, Judges; H. Jung,
                       (First Chamber)                            Registrar, made an order on 16 July 1998, the operative
                        of 7 July 1998                            part of which is as follows:
in Case T-178/97 Albano Moncada v. Commission of the
                  European Communities (1)                        1. The action is dismissed as inadmissible.
(Officials Ð Deputising for a hierarchical superior Ð
Action manifestly inadmissible and not well founded in            2. The applicant is ordered to pay the costs.
                              law)
                                                                  (1) OJ C 387, 20.12.1997.
                         (98/C 312/29)
               (Language of the case: French)
In Case T-178/97: Albano Moncada, an official of the
Commission of the European Communities, residing in                    ORDER OF THE COURT OF FIRST INSTANCE
Luxembourg, represented by Jean-NoeÈl Louis, Thierry                                      of 6 July 1998
Demaseure and Ariane Tornel, of the Brussels Bar, with an
address for service in Luxembourg at the offices of               in Case T-286/97: Anthony Goldstein v. Commission of
Fiduciaire Myson SARL, 30 Rue de Cessange, against the                            the European Communities (1)
Commission of the European Communities (Agents:
                                                                  (Action for failure to act Ð Obligation to act Ð None Ð
Christine Berardis-Kayser and Florence Duvieusart-
                                                                        Action manifestly lacking any foundation in law)
Clotuche) Ð application for, first, annulment of the
Commission's decision of 12 August 1996 directing a                                       (98/C 312/31)
colleague in a lower grade than the applicant to deputise
during the absences of his hierarchical superior and,
                                                                                (Language of the case: English)
second, for damages Ð the Court (First Chamber),
composed of: B. Vesterdorf, President, and R. M. Moura
Ramos and P. Mengozzi, Judges; H. Jung, Registrar, has            In Case T-286/97, Anthony Goldstein, residing in London,
made an order on 7 July 1998 in which it:                         represented by Raymond St John Murphy, Solicitor, 3
                                                                  Kings Bench Walk, Inner Temple, London, against
                                                                  Commission of the European Communities (Agent:
1. dismisses the application;
                                                                  Richard Lyal) Ð application for a finding that the
                                                                  Commission failed to act by failing to take a decision on a
2. orders the parties to bear their own costs.                    complaint (IV/34.824 Ð Goldstein/GMC) against certain
                                                                  anti-competitive practices, lodged by the applicant under
                                                                  Article 3(2) of Council Regulation No 17 of 6 February
(1) OJ C 252, 16.8.1997.
                                                                  1962, First Regulation implementing Articles 85 and 86 of
                                                                  the Treaty (OJ, English Special Edition 1959Ð1962, p. 87)
                                                                  Ð the Court of First Instance (Third Chamber), composed


title: Joined Cases C-608/10, C-10/11 and C-23/11: Judgment of the Court (First Chamber) of 12 July 2012 (references for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas (Agriculture — Export refunds — Incorrect indication of the exporter in the export declaration — National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration — Correction of the export declaration after the goods have been released)

text:
               22.9.2012

               EN

               Official Journal of the European Union

               C 287/6

         Judgment of the Court (First Chamber) of 12 July 2012 (references for a preliminary ruling from the Finanzgericht Hamburg — Germany) — Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11) v Hauptzollamt Hamburg-Jonas
   (Joined Cases C-608/10, C-10/11 and C-23/11) (1)

   (Agriculture - Export refunds - Incorrect indication of the exporter in the export declaration - National legislation making entitlement to an export refund subject to the entry of the applicant as the exporter in the export declaration - Correction of the export declaration after the goods have been released)
   2012/C 287/10
   Language of the cases: German

      Referring court

   Finanzgericht Hamburg

      Parties to the main proceedings

      Applicants: Südzucker AG (C-608/10), WEGO Landwirtschaftliche Schlachtstellen GmbH (C-10/11), Fleischkontor Moksel GmbH (C-23/11)

      Defendant: Hauptzollamt Hamburg-Jonas

      Re:

   References for a preliminary ruling — Finanzgericht Hamburg — Interpretation of Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products (OJ 1999 L 102, p. 11) and of Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code (OJ 1992 L 302, p. 1) — Incorrect indication of the exporter in the export declaration — National rules making the right to an export refund subject to the entry of the applicant as exporter in the export declaration

      Operative part of the judgment

               1.

               Article 5(7) of Commission Regulation (EC) No 800/1999 of 15 April 1999 laying down common detailed rules for the application of the system of export refunds on agricultural products, as amended by Commission Regulation (EC) No 90/2001 of 17 January 2001, must be interpreted as meaning that, in principle, the holder of an export licence is entitled to an export refund only if he is registered as exporter in box 2 of the export declaration lodged with the competent customs office.

               2.

               Article 78(1) and (3) of Council Regulation (EEC) No 2913/92 of 12 October 1992 establishing the Community Customs Code must be interpreted as allowing a post-clearance revision of the export declaration for the purpose of refunds, in order to change the name of the exporter featuring in the box provided for that purpose, and as meaning that the customs authorities are required:

                           —

                           firstly, to examine whether a revision of that declaration must be considered to be possible in that, in particular, the objectives of the European Union legislation as regards export refunds have not been threatened and the goods in question have in fact been exported, this being a matter for the applicant to establish, as well as;

                           —

                           secondly, where relevant, to take the measures necessary to regularise the situation, taking account of the new information available to them.

               3.

               Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that, in a case such as Case C-608/10, in which the holder of an export licence is not registered as the exporter in box 2 of the export declaration, the customs authorities cannot grant that holder the export refund without prior correction of the export declaration.

               4.

               In a case such as those in Cases C-10/11 and C-23/11, the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is bound by a post-clearance revision, by the customs office of export, of the reference in box 2 of the export declaration, or, as the case may be, of the T5 control copy, if the amending decision fulfils all the formal and substantive conditions of a ‘decision’ provided for both by Article 4(5) of Regulation No 2913/92 and by the relevant provisions of the national law concerned. It is for the referring court to determine whether those conditions have been satisfied in the disputes in the main proceedings.

               5.

               Article 5(7) of Regulation No 800/1999, as amended by Regulation No 90/2001, and the customs legislation of the European Union must be interpreted as meaning that the customs office responsible for paying the export refund is not entitled, in a case such as Case C-23/11, and if it is not bound under national law by the revision made by the customs office of export, to take at face value the reference in box 2 of the export declaration and to refuse an application for an export refund on the ground that the party making that application is not the exporter of the goods covered by that application. By contrast, if the competent customs office grants the application for amendment and validly rectifies the exporter’s name, the customs office responsible for paying the export refund is bound by that decision.

      (1)  OJ C 113, 9.4.2011.

      OJ C 120, 16.4.2011.


title: Case T-151/99: Action brought on 21 June 1999 by Tecnagrind s.l.- Tecnologias Agrarias e Industriales - against Commission of the European Communities

text:
C 246/42                EN                      Official Journal of the European Communities                                     28.8.1999
The applicant claims that the Court should:                                represented by Piero A. M. Ferrari, Aurelio Pappalardo and Pier
                                                                           Francesco Meneghini, of the Roma, Trapani and Milan Bars,
    declare that                                                           with an address for service in Luxembourg at the Chambers of
                                                                           Alain Lorang, 51 Rue Albert Premier.
    1. the applicant is entitled to a survivor’s pension based
          on 35 % of a Grade A 6/8 salary with annual adjust-
          ments,                                                           The applicant claims that the Court of First Instance should:
    2. the applicant is not bound to repay the amount of                   — annul Commission Decision C (1999) 532 of 4 March
          DM 40 518 .61 pursuant to the Commission’s decision                   1999 or, in the alternative, reduce the amount of the grant
          of 21 September 1998,                                                 to be repaid to the Commission to such extent as may be
                                                                                decided in the course of the proceedings;
    and order the applicant to pay the costs of the proceedings.
                                                                           — order the Commission to pay the costs.
Pleas in law and main arguments
                                                                           Pleas in law and main arguments
The applicant, who was divorced from her husband, a
Community official who died in 1973, and was entitled to be
maintained by him from that time, receives a widow’s                       The applicant contests Commission Decision C (1999) 532 of
pension from the Commission. The applicant claims that the                 4 March 1999, which reduces the contribution made to one
Commission has already committed numerous administrative                   of its subsidiaries by the Commission under Commission
errors in her case on previous occasions.                                  Decision C (93) 3395 of 26 November 1992 concerning grant
                                                                           of the EAGGF, Guidance Section, contribution under Council
                                                                           Regulation (EEC) No 4256/88 (1), in connection with Project
The Commission informed her by letter of 20 August 1998                    No 92.ES.06.031 entitled ‘Demonstrative project for the
that her monthly pension payment had been incorrect since                  multiple optimisation of Vetiver (Vetiveria Zizanioides) A in the
February 1994 and did not correspond to the decision in the                Mediterranean area’.
relevant amendment notice, pursuant to which she is entitled
to a survivor’s pension of 26.56498 %, not 35 %, of a Grade
A 6/8 salary. She was therefore informed that this oversight               The pleas in law and main arguments are the same as those in
would be corrected in the statement for September 1998 and                 Case T-141/99 Vela s.r.l. v Commission.
that the situation with regard to the overpaid sums would be
regularized.
                                                                           (1) Council Regulation (EEC) No 4256/88 of 19 December 1988
                                                                               laying down provisions for implementing Regulation (EEC) No
The applicant claims that the Commission misapplied the                        2052/88 as regards the EAGGF Guidance Section (OJ L 337 of
provisions cited by her of Article 41 of Annex VIII to the Staff               24.12.1994, p. 11).
Regulations and Article 85 of the Staff Regulations. As was
correctly pointed out in the notice of complaint, the amount
of a pension may be reassessed in the event of an error or
omission in the calculation thereof. In exercising that discre-
tion, it is imperative that the Commission weigh up its interests
against those of the person concerned, which it did not do.
Furthermore, a lawful administrative act conferring a benefit
may not be annulled and even an unlawful administrative act
may only be annulled within a reasonable time.
                                                                           Action brought on 21 June 1999 by Tecnagrind s.l. —
                                                                           Tecnologias Agrarias e Industriales — against Commission
                                                                                of the European Communities
                                                                                (Case T-151/99)
Action brought on 21 June 1999 by Tecnagrind s.l. against                                          (1999/C 246/84)
          Commission of the European Communities
                         (Case T-150/99)                                                      (Language of the case: Italian)
                         (1999/C 246/83)                                   An action against the Commission of the European Communi-
                                                                           ties was brought before the Court of First Instance of the
                                                                           European Communities on 21 June 1999 by Tecnagrind s.l.
                    (Language of the case: Italian)                        — Tecnologias agrarias e industralIes — represented by
                                                                           Piero A. M. Ferrari, Aurelio Pappalardo and Pier Francesco
An action against the Commission of the European Communi-                  Meneghini, of the Roma, Trapani and Milan Bars, with an
ties was brought before the Court of First Instance of the                 address for service in Luxembourg at the Chambers of Alain
European Communities on 21 June l 999 by Tecnagrind s.l.,                  Lorang, 51 Rue Albert Premier.
 ---pagebreak--- 28.8.1999              EN                     Official Journal of the European Communities                                         C 246/43
The applicant claims that the Court of First Instance should:            Pleas in law and main arguments
— annul Commission Decision C (1999) 533 of 4 March
     1999 or, in the alternative, reduce the amount of the grant         This is an action for annulment of the Commission’s decision
     to be repaid to the Commission to such extent as may be             (C(1999)41 final) of 3 February 1999 on State aid awarded by
     decided in the course of the proceedings;                           the Spanish Government to the applicant company. In that
                                                                         decision, the Commission declared that the Spanish authorities
— order the Commission to pay the costs.                                 had granted to Hijos de Andrés Molina S.A. — a producer of
                                                                         meat, dairy products and animal feed, now in liquidation —
                                                                         State aid incompatible with the EC Treaty, and that that
Pleas in law and main arguments                                          amount should be repaid.
The applicant contests Commission Decision C (1999) 533 of               In support of its claims, the applicant alleges the following
4 March 1999, which reduces the contribution made to one                 grounds for annulment:
of its subsidiaries by the Commission under Commission
Decision C (96) 2235 of 13 September 1996 concerning grant               — infringement of Articles 87 and 88(3) of the EC Treaty [ex
of the EAGGF, Guidance Section, contribution under Council                    Articles 92 and 93(3)], in so far as the aid granted prior to
Regulation (EEC) No 4256/88 (1), in connection with Project                   1995 must be regarded as compatible with the common
No 95.ES.06.005 entitled ‘Demonstrative project for the                       market;
processing of castor-oil plants (Ricinus Communis) in agricul-
tural undertakings for the extraction of natural aromatic
essences’.                                                               — manifest error in the findings of fact and infringement of
                                                                              Article 87(1) of the EC Treaty in that the steps taken by
                                                                              the public creditors in the legal proceedings for suspension
The pleas in law and main arguments are the same as those in                  of payments cannot be considered to constitute State aid
Case T-141/99 Vela s.r.l. v Commission.                                       because they do not meet the requirement of specificity
                                                                              nor do they comply with the rules of Spanish competition
(1) Council Regulation (EEC) No 4256/88 of 19 December 1988                   law;
    laying down provisions for implementing Regulation (EEC) No
    2052/88 as regards the EAGGF Guidance Section (OJ L 337 of           — infringement of Article 87(1) of the EC Treaty in that the
    24.12.1994, p. 11).                                                       Commission considered the increase in capital by way of
                                                                              credit set-off on the part of the applicant to constitute
                                                                              State aid;
                                                                         — manifest error in the findings of fact and infringement of
                                                                              Article 87(3)(c) of the EC Treaty and of the Community
                                                                              rules applicable in the area of State aid for the restructuring
Action brought on 24 June 1999 by Hijos de Andrés                             and rescue of companies, in that the rescue aid granted to
Molina S.A. (in liquidation) against the Commission of the                    the applicant between May and December 1995 was not
                    European Communities                                      considered to be compatible with the common market.
                         (Case T-152/99)                                 The applicant company also alleges that the contested decision
                                                                         fails to take into account that the restructuring plan drawn up
                        (1999/C 246/85)                                  by it fulfils the requirements of compatibility with the common
                                                                         market since that plan clearly reduced the applicant’s pro-
                                                                         duction capacity, re-established its viability and succeeded in
                                                                         protecting the interests of third parties in the procedure which
                  (Language of the case: Spanish )
                                                                         led to its reprivatisation.
An action against the Commission of the European Communi-
ties was brought before the Court of First Instance of the               Further, the applicant is also of the view that the decision fails
European Communities on 24 June 1999 by Hijos de Andrés                  to take into account the principle that reasons must be given
Molina S.A., whose registered office is in Seville, Spain,               for measures adopted. In particular, it claims in that regard
represented by Luis Manuel Olivencia Brugger and José Luis               that the decision simply precludes the possible application of
Ballester Garcı́a-Izquierdo, with an address for service in              Article 87(3)(a) without complying with the corresponding
Luxembourg at the Chambers of Guy Arendt, 7 Val Ste. Croix,              obligations to provide reasons which arise by virtue of the
B.P. 522.                                                                discretion enjoyed.
The applicant claims that the Court should:                              Finally, the applicant company challenges whether the require-
                                                                         ment that intra-Community trade be affected applies in this
— annul the Commission’s decision of 3 February 1999 on                  case.
     the State aid granted by the Spanish Government to Hijos
     de Andrés Molina S.A.;
— order that the Commission pay the costs.


title: Case T-842/14: Judgment of the General Court of 5 February 2016 — Airpressure Bodyforming v OHIM (Slim legs by airpressure bodyforming) (Community trade mark — Application for Community word mark Slim legs by airpressure bodyforming — Refusal of registration by the examiner — Absolute grounds for refusal — Descriptive character — Lack of descriptive character — Article 7(1)(b) and (c) of Regulation (EC) No 207/2009)

text:
               21.3.2016

               EN

               Official Journal of the European Union

               C 106/34

         Judgment of the General Court of 5 February 2016 — Airpressure Bodyforming v OHIM (Slim legs by airpressure bodyforming)
   (Case T-842/14) (1)

   ((Community trade mark - Application for Community word mark Slim legs by airpressure bodyforming - Refusal of registration by the examiner - Absolute grounds for refusal - Descriptive character - Lack of descriptive character - Article 7(1)(b) and (c) of Regulation (EC) No 207/2009))
   (2016/C 106/38)
   Language of the case: German

      Parties

      Applicant: Airpressure Bodyforming GmbH (Berchtesgaden, Germany) (represented by: S. Merz, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: C. Martini and M. Fischer, acting as Agents)

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 29 October 2014 (Case R 1570/2014-5) concerning an application for registration of the word sign Slim legs by airporessure bodyforming as a Community trade mark.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Airpressure Bodyforming GmbH to pay the costs.

      (1)  OJ C 65, 23.3.2015.


title: Case C-370/07: Action brought on 3 August 2007 — Commission of the European Communities v Council of the European Union

text:
               22.9.2007

               EN

               Official Journal of the European Union

               C 223/9

         Action brought on 3 August 2007 — Commission of the European Communities v Council of the European Union
   (Case C-370/07)
   (2007/C 223/11)
   Language of the case: English
   Parties

      Applicant: Commission of the European Communities (represented by: G. Valero Jordana and C. Zadra, Agents)

      Defendant: Council of the European Union
   The applicant claims that the Court should:

               —

               annul Council Decision of 24 May 2007 establishing the position to be adopted on behalf of the European Community with regard to certain proposals submitted to the 14th meeting of the Conference of the Parties (COP 14) to the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the Hague, Netherlands 3-15 June 2007, and to order the Council to pay costs.

               —

               Order the Council of the European Union to pay the costs.

         Pleas in law and main arguments
   The Commission submits that the failure by the challenged Council decision to refer to the precise provisions of the EC Treaty on which it is based constitutes an infringement of essential procedural requirements, notably the obligation to state reasons contained in Article 253.


title: Case T-114/09: Action brought on 24 march 2009 — Viasat Broadcasting UK v Commission

text:
               20.6.2009

               EN

               Official Journal of the European Union

               C 141/43

         Action brought on 24 march 2009 — Viasat Broadcasting UK v Commission
   (Case T-114/09)
   2009/C 141/93
   Language of the case: English

      Parties

      Applicant: Viasat Broadcasting UK Ltd (London, United Kingdom) (represented by: S. Kalsmose-Hjelmborg and M. Honoré, lawyers)

      Defendant: Commission of the European Communities

      Form of order sought

               —

               annul the decision of the European Commission of 4 August 2008 in Case N 287/2008; and

               —

               order the Commission to pay the costs.

      Pleas in law and main arguments

   By this application, the applicant seeks the annulment of the Commission’s decision of 4 august 2008 in Case N 287/2008 (1) by which the Commission approved, on the basis of Article 87 (3) (c) EC rescue aid granted by the Danish State to TV 2 Danmark A/S (‘TV 2’).
   The applicant submits that the aid does not comply with Article 87(3) (c) since it infringes the principle of proportionality enshrined in that provision according to which such aid must not ‘adversely affect trading conditions to an extent contrary to the common interest’. In particular, the applicant claims first that the Commission erred in law when it held that TV 2 constituted a ‘firm in difficulty’ within the meaning of the Community guidelines on state aid for rescuing and restructuring firms in difficulty (2). Secondly, the applicant contends that the Commission erred in law when holding that the rescue aid was limited to what was necessary to keep TV 2 business and that aid was maintained at a level which would not allow TV 2 to invest in new activities or to behave aggressively in commercial markets. Thirdly, the applicant claims that the Commission erred in law when it failed to take into account the State aid received by TV 2 in the past.

      (1)  A summary of the contested decision was published in the Official Journal of the European Union (OJ 2009 C 9, p. 2) and a non-confidential version of the decision was made available on http://ec.europa.eu/community_law/state_aids/

      (2)  Community guidelines on state aid for rescuing and restructuring firms in difficulty (OJ 2004 C 244, p. 2)


title: Case T-434/12: Action brought on 28 September 2012 — Steiff v OHIM (Fabric tag with metal button in the middle section of the ear of a soft toy)

text:
               24.11.2012

               EN

               Official Journal of the European Union

               C 366/39

         Action brought on 28 September 2012 — Steiff v OHIM (Fabric tag with metal button in the middle section of the ear of a soft toy)
   (Case T-434/12)
   2012/C 366/79
   Language of the case: German

      Parties

      Applicant: Margarete Steiff GmbH (Giengen an der Brenz, Germany) (represented by D. Fissl, lawyer)

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

      Form of order sought

   The applicant claims that the Court should:

               —

               Annul the decision of the First Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) of 19 July 2012 in Case No R 1692/2011-1;

               —

               Annul OHIM’s rejection of Community trade mark application No 9 439 654;

               —

               Order OHIM to pay the costs.

      Pleas in law and main arguments

      Community trade mark concerned: the positional mark with which protection is claimed for a rectangular, elongated fabric tag fastened to the middle section of the ear of a soft toy by means of a gleaming or matt, round metal button for goods in Class 28 — Community trade mark application No 9 439 654

      Decision of the Examiner: the application was rejected

      Decision of the Board of Appeal: the appeal was dismissed

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