title: Case T-751/14: Judgment of the General Court of 11 December 2015 — Hikari Miso v OHIM — Nishimoto Trading (Hikari) (Community trade mark — Opposition proceedings — Application for Community word mark Hikari — Earlier national word mark HIKARI — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 207/2009)

text:
               1.2.2016

               EN

               Official Journal of the European Union

               C 38/51

         Judgment of the General Court of 11 December 2015 — Hikari Miso v OHIM — Nishimoto Trading (Hikari)
   (Case T-751/14) (1)

   ((Community trade mark - Opposition proceedings - Application for Community word mark Hikari - Earlier national word mark HIKARI - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 207/2009))
   (2016/C 038/67)
   Language of the case: English

      Parties

      Applicant: Hikari Miso Co. Ltd (Simosuwa-machi, Japan) (represented by: D. McFarland, Barrister)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: H. O’Neill, acting as Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the General Court: Nishimoto Trading Co. Ltd (Santa Fe Springs, California, United States) (represented by: G. Pritchard, Barrister)

      Re:

   Action brought against the decision of the Fourth Board of Appeal of OHIM of 8 September 2014 (Case R 2394/2013-4), relating to opposition proceedings between Nishimoto Trading Co. Ltd and Hikari Miso Co. Ltd.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the appeal;

               2.

               Orders Hikari Miso Co. Ltd to pay the costs.

      (1)  OJ C 7, 12.1.2015.


title: Case C-133/12 P: Appeal brought on 9 March 2012 by Stichting Woonlinie and Others against the order of the General Court (Seventh Chamber) delivered on 16 December 2011 in Case T-202/10 Stichting Woonlinie and Others v European Commission

text:
               12.5.2012

               EN

               Official Journal of the European Union

               C 138/8

         Appeal brought on 9 March 2012 by Stichting Woonlinie and Others against the order of the General Court (Seventh Chamber) delivered on 16 December 2011 in Case T-202/10 Stichting Woonlinie and Others v European Commission
   (Case C-133/12 P)
   2012/C 138/13
   Language of the case: Dutch

      Parties

      Appellants: Stichting Woonlinie, Stichting Allee Wonen, Woningstichting Volksbelang, Stichting WoonInvest, Stichting Woonstede (represented by: P. Glazener and E. Henny, advocaten, and L. Hancher, university teacher)

      Other party to the proceedings: European Commission

      Form of order sought

               —

               Set aside in whole or in part the order [of the General Court (Seventh Chamber) of 16 December 2011 in Case T-202/10] in accordance with the pleas in law put forward by this appeal;

               —

               Refer the case back to the General Court for determination in accordance with the judgment of the Court of Justice;

               —

               Order the Commission to pay the costs of these proceedings as well as the costs of the proceedings before the General Court.

      Pleas in law and main arguments

               1.

               According to the
                     first plea in law
                   the General Court infringed European Union law, erred in its assessment of the relevant facts and provided insufficient grounds for the order by regarding the appellants as merely potential beneficiaries of the aid scheme approved by the Commission. The General Court disregards the fact that, before the decision, (1) the appellants benefited from the existing aid measures that were required to be amended as a result of the decision. The appellants are not, therefore, merely potential beneficiaries of the modified aid, but also in fact beneficiaries of the existing aid. In the latter capacity the decision at issue is indeed of individual concern to them.

               2.

               According to the
                     second plea in law
                   the General Court infringed European Union law, erred in its assessment of the relevant facts and provided insufficient grounds for the order in ruling that the appellants do not belong to a closed group of existing housing corporations. The purely theoretical possibility that a certain group of beneficiaries of aid might be expanded in the future is not sufficient for it to be regarded as not being a closed group. Furthermore the existing housing corporations do form a closed group, as they are more severely affected by the decision than a hypothetical institution that may yet be approved as a housing corporation after the decision.

      (1)  Commission Decision C(2009) 9963 final of 15 December 2009 relating to State aid E 2/2005 and N 642/2009 — (Netherlands) — Existing and special project aid to housing corporations


title: Case F-38/08: Action brought on 31 March 2008 — Liotti v Commission

text:
               21.6.2008

               EN

               Official Journal of the European Union

               C 158/26

         Action brought on 31 March 2008 — Liotti v Commission
   (Case F-38/08)
   (2008/C 158/48)
   Language of the case: French
   Parties

      Applicant: Amerigo Liotti (Senningerberg, Luxembourg) (represented by: F. Frabetti, lawyer)

      Defendant: Commission of the European Communities
   Subject-matter and description of the proceedings
   Annulment of the applicant's career development report for the period from 1 January 2006 to 31 December 2006.
   Form of order sought

               —

               Annul the applicant's career development report (REC/CDR) for the reference period 1.1.2006 to 31.12.2006;

               —

               Order the Commission of the European Communities to pay the costs.


title: Case C-54/03: Reference for a preliminary ruling by the Landesgericht für Zivilrechtssachen Wien by order of that Court of 29 January 2003 in the case of Austroplant-Arzneimittel GesmbH against Austrian Republic

text:
C 112/8                EN                      Official Journal of the European Union                                        10.5.2003
Does an agreement to amend an existing public supply                   Reference for a preliminary ruling by the Landesgericht
contract, to the effect that different goods are to be supplied        für Zivilrechtssachen Wien by order of that Court of
from those originally agreed, constitute a public supply               29 January 2003 in the case of Austroplant-Arzneimittel
contract for the purposes of Article 1(a) of Council Directive                       GesmbH against Austrian Republic
93/36/EEC ( 1) of 14 June 1993 coordinating procedures for
the award of public supply contracts (‘Directive 93/36’) in
respect of which an invitation to tender must be issued where:
                                                                                (Case C-54/03)
1.    the value of the goods to which the amendment relates
      exceeds the de minimis amount referred to in
      Article 5(1)(a) of Directive 93/36 and                                                    (2003/C 112/15)
2.    as regards the goods affected by the amendment, the
      amendment changes both the supplier and, in a material
      way, the specification of those goods?
                                                                       Reference has been made to the Court of Justice of the
( 1) OJ L 199 of 9.8.1993, p. 1.                                       European Communities by order of the Landesgericht für
                                                                       Zivilrechtssachen Wien (Vienna Regional Civil Court) of
                                                                       29 January 2003, received at the Court Registry on 11 February
                                                                       2003, for a preliminary ruling in the case of Austroplant-
                                                                       Arzneimittel GesmbH against Austrian Republic on the follow-
                                                                       ing questions:
                                                                       1.    Is Council Directive 89/105/EEC of 21 December 1998
                                                                             relating to the transparency of measures regulating the
Reference for a preliminary ruling by the Amtsgericht                        prices of medicinal products for human use and their
Löbau by order of that Court of 21 October 2002 in the                       inclusion in the scope of national health insurance
   criminal proceedings against Nicoleta Maria Georgescu                     systems (OJ 1989 L 40, 8), apart from the remedy already
                                                                             criticised in the Court’s judgment of 27 November 2001
                                                                             in Case C-424/99 ( 1), to be interpreted as meaning that
                          (Case C-51/03)                                     the national provisions set out below are incompatible
                                                                             therewith?
                         (2003/C 112/14)                                     The national implementing provisions concerned are
                                                                             Paragraph 31(3)(12) ASVG in the version published in
                                                                             BGBl I 99/2001 and the Procedure for the compilation
                                                                             of the register of medicinal products under Para-
                                                                             graph 31(3)(12) ASVG (VOHMV), Soziale Sicherheit 11/
Reference has been made to the Court of Justice of the                       1998, Amtliche Verlautbarung No 104/1998.
European Communities by order of the Amtsgericht Löbau
(Local Court, Löbau) of 21 October 2002, received at the
Court Registry on 10 February 2003, for a preliminary ruling           2.    If Question 1 is answered in the affirmative:
in the criminal proceedings against Nicoleta Maria Georgescu
on the following question on the following point of interpret-
                                                                             Is Council Directive 89/105/EEC of 21 December 1998
ation of Council Regulation (EC) No 539/2001 of 15 March
                                                                             relating to the transparency of measures regulating the
2001 (1):
                                                                             prices of medicinal products for human use and their
                                                                             inclusion in the scope of national health insurance
                                                                             systems so precise, clear and definite that the national
Must Article 1(2) in conjunction with Article 8(2) and Annex II              legislator has no scope for discretion when transposing it
of the above regulation be interpreted as meaning that as from               into national law?
the entry into force of that regulation Romanian nationals
now only for a specified time require a visa for entry and stay
in Member States of the European Community for a period                3.    If Question 2 is answered in the affirmative:
not exceeding three months?
                                                                             Is Council Directive 89/105/EEC of 21 December 1998
                                                                             relating to the transparency of measures regulating the
( 1) OJ L 81 of 21.3.2001, p. 1.                                             prices of medicinal products for human use and their
                                                                             inclusion in the scope of national health insurance
                                                                             systems intended to confer a direct right on the applicant
                                                                             in the proceedings in the main case in this instance?
 ---pagebreak--- 10.5.2003              EN                        Official Journal of the European Union                                           C 112/9
4.     If Question 2 is answered in the negative:                        Action brought on 26 February 2003 by the Commission
                                                                         of the European Communities against the Italian Republic
       Does the content of the reference for a preliminary ruling,
       together with the supporting documents, afford the
       Court, in the light of its judgment in Case C-392/93
                                                                                (Case C-83/03)
       British Telecommunications [1996] ( 2), sufficient infor-
       mation to answer the question of whether the
       implementing provisions described fall within the scope
       for discretion afforded to the national legislator under                                    (2003/C 112/17)
       Council Directive 89/105/EEC of 21 December 1998
       relating to the transparency of measures regulating the
       prices of medicinal products for human use and their
       inclusion in the scope of national health insurance
       systems or does the Court leave it to the referring court
       to answer this question?                                          An action against the Italian Republic was brought before the
                                                                         Court of Justice of the European Communities on 26 February
                                                                         2003 by the Commission of the European Communities,
( 1) European Court Reports 2001 p. I-09285.                             represented by Antonio Aresu and Roberto Amorosi, acting as
( 2) European Court Reports 1996 p. I-01631.                             Agents.
                                                                         The applicant claims that the Court should:
                                                                         a)     find that the Italian Republic has failed to fulfil its
                                                                                obligations under Article 4(2) of Council Directive 85/
Reference for a preliminary ruling by the Bundesarbeits-                        337/EEC (1) of 27 June 1985 on the assessment of the
gericht by order of that Court of 6 November 2002 in the                        effects of certain public and private projects on the
case of Wolff & Müller GmbH & Co.KG against José Filipe                         environment in as much as it failed properly to determine
                           Pereira Félix                                        whether a project for the construction of a tourist port at
                                                                                Fassacesia (Chieti) — a project covered by Annex II to the
                                                                                directive — warranted the commencement of a procedure
                          (Case C-60/03)                                        to assess its impact on the environment, and
                         (2003/C 112/16)                                 b)     order the Italian Republic to pay the costs.
Reference has been made to the Court of Justice of the
European Communities by order of the Bundesarbeitsgericht
(Federal Labour Court) of 6 November 2002, received at the               Pleas in law and main arguments
Court Registry on 14 February 2003, for a preliminary ruling
in the case of Wolff & Müller GmbH & Co.KG against José
Filipe Pereira Félix on the following question:
                                                                         The Italian authorities have given the Commission no expla-
                                                                         nation of the reasons for which they took the view that there
Does Article 49 EC (formerly Article 59 of the EC Treaty)                was no need for an environmental impact assessment, in
preclude a national system whereby, when subcontracting the              accordance with Article 4(2) of Directive 85/337/EEC, to be
conduct of building work to another undertaking, a building              carried out in relation to a project for the construction of a
contractor becomes liable, in the same way as a guarantor who            tourist port in Fassacesia (Chieti).
has waived benefit of execution, for the obligation on that
undertaking or that undertaking’s subcontractors to pay the
minimum wage to a worker or to pay contributions to a
communal scheme for parties to a collective agreement where              It is therefore unclear whether the characteristics of the project
the minimum wage means the sum payable to the worker                     were considered with reference to its possible impact on fauna
after tax, social security contributions, payments towards the           and flora and on the landscape. The fact that the area in
promotion of employment or other such social insurance                   question has not been proposed as a Site of Community
payments have been deducted (net pay), if the safeguarding of            Importance is all the more reason why the project’s impact on
workers’ pay is not the primary objective of the legislation or          fauna and flora and on the landscape should have been taken
is merely a subsidiary objective?                                        into consideration. Moreover, the fact that this point was
                                                                         considered only after building permission had already been
                                                                         granted is further indication that the procedure followed was
                                                                         incoherent, to say the least.


title: JUDGMENT OF THE COURT OF FIRST INSTANCE of 27 February 1997 in Case T-106/95: Fédération Française des Sociétés d'Assurances (FFSA) and Others v. Commission of the European Communities (State aid - Public undertaking - Combined application of Article 92 and Article 90 (2) of the EC Treaty - Additional costs arising from performance of particular tasks assigned to the public undertaking - Competitive activities)

text:
No C 131 / 12          EN                   Official Journal of the European Communities                                  26 . 4 . 97
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              Communities, residing in Brussels, represented by Marc
                        (Fourth Chamber)                               Albert Lucas, of the Liege Bar, with an address for service
                                                                       in Luxembourg at the Chambers of Evelyne Korn, 21 Rue
                       of 5 February 1997                              de Nassau, against the Commission of the European
in Case T-207/95 : Maria de los Angeles Ibarra Gil v.                  Communities (Agent: Ana Maria Alves Vieira ) —
       Commission of the European Communities (')                      application for, first, the annulment of the decision of the
(Officials — Internal competitions — Notice of vacancy                 selection board for competition COM/T/A/95 of
— Condition of being a temporary member of the                         15 November 1994 refusing to admit the applicant to the
temporary staff on the closing date for applications —                 written tests of the competition and of the decision of the
Principle of protection of legitimate expectations —                   Commission of 27 July 1995 not to allow the applicant to
Principle of equal treatment — Duty to have regard for                 take part in an additional internal competition other than
       the welfare of officials — Action for damages)                  competition COM/T/A/95 and, secondly, damages in
                                                                       compensation for the material and non-material damage
                           ( 97IC 131 /29                              suffered by the applicant — the Court of First Instance
                                                                       ( Fourth Chamber), composed of K. Lenaerts, President, P.
               (Language of the case: French)                          Lindh and J. D. Cooke, Judges; J. Palacio Gonzalez,
                                                                       Administrator, for the Registrar, gave a judgment on
In Case T-207/95 : Maria de los Angeles Ibarra Gil, former             5 February 1997, in which it:
member of the temporary staff of the Commission of the
European Communities, residing in Brussels, represented                1 . dismisses the application as unfounded;
by Marc-Albert Lucas, of the Liege Bar, with an address
for service in Luxembourg at the Chambers of Evelyne                   2 . orders the parties to bear their own costs.
Korn, 21 Rue de Nassau, against the Commission of the
European Communities (Agent: Ana Maria Alves Vieira )                  (') OJ No C 351 , 30 . 12 . 1995 .
— application for, first, the annulment of the decision of
the selection board for competition COM/T/B/95 of
7 November 1994 refusing to admit the applicant to the
written tests of the competition and of the decision of the
Commission of 27 July 1995 not to allow the applicant to
take part in an additional internal competition other than               JUDGMENT OF THE COURT OF FIRST INSTANCE
competition COM/T/B/95 and, secondly, damages in                                             of 27 February 1997
compensation for the material and non-material damage
suffered by the applicant — the Court of First Instance                in Case T-106/95 : Fédération Française des Sociétés
( Fourth Chamber), composed of K. Lenaerts, President, P.              d'Assurances ( FFSA) and Others v. Commission of the
Lindh and J. D. Cooke, Judges; J. Palacio Gonzalez,                                      European Communities ( 1 )
Administrator, for the Registrar, gave a judgment on                   (State aid — Public undertaking — Combined application
5 February 1997, in which it:                                          of Article 92 and Article 90 (2) of the EC Treaty —
                                                                       Additional costs arising from performance of particular
1 . dismisses the application as unfounded;                            tasks assigned to the public undertaking — Competitive
                                                                                activities)
2. orders the parties to bear their own costs.
                                                                                ( 97/C 131 /31 )
(') OJ No C 351 , 30 . 12 . 1995 .
                                                                                (Language of the case: French)
                                                                       In Case T-106/95 : Fédération Française des Sociétés d'As
                                                                       surances ( FFSA ), established in Paris, Union des Sociétés
                                                                       Etrangères d'Assurances (USEA), established in Paris,
  JUDGMENT OF THE COURT OF FIRST INSTANCE                              Groupe des Assurances Mutuelles Agricoles ( Groupama ),
                                                                       established in Noisy-le-Grand ( France ), Fédération Natio
                        (Fourth Chamber)                               nale des Syndicats d'Agents Généraux d'Assurances
                       of 5 February 1997                              ( FNSAGA ), established in Paris, Fédération Française des
in Case T-211 /95 : Claudine Petit-Laurent v. Commission
                                                                       Courtiers d'Assurances et de Réassurances ( FCA ),
                                                                       established in Paris, Bureau International des Producteurs
              of the European Communities (')
                                                                       d'Assurances et de Réassurances ( BIPAR ), established in
(Officials — Internal competitions — Notice of vacancy                 Paris, represented by Dominique Voillemot and Marie-Pia
— Condition of being a temporary member of the                         Hutin, of the Paris Bar, with an address for service in
temporary staff on the closing date for applications —                 Luxembourg at the Chambers of Jacques Loesch, 11 Rue
Principle of protection of legitimate expectations —                   Goethe, against Commission of the European
Principle of equal treatment — Duty to have regard for                 Communities (Agent: Gérard Rozet), supported by the
       the welfare of officials — Action for damages)                  French Republic ( Agents: Catherine de Salins and Jean
                           ( 97/C 131 /30 )                            Marc Belorgey ) and La Poste, established in Boulogne
                                                                       Billancourt (France ), represented by Hervé Lehman, of the
               (Language of the case: French)                          Paris Bar, with an address for service in Luxembourg at
                                                                       the Chambers of Aloyse May, 31 Grand-Rue —
In Case T-211 /95 : Claudine Petit-Laurent, former member              application for annulment of the Commission Decision of
of the temporary staff of the Commission of the European                8 February 1 995 , notified to the applicants by letter of
 ---pagebreak--- 26 . 4 . 97             EN                   Official Journal of the European Communities                                 No C 131 / 13
21 February 1995 , relating to a procedure implementing                    JUDGMENT OF THE COURT OF FIRST INSTANCE
Article 93 of the EC Treaty ( State aid NN 135/92 :                                               of 5 March 1997
competitive activities of the French Post Office ), published
in the Official Journal of the European Communities ( OJ                in Case T-105/95 : WWF UK (World Wide Fund for
No C 262, 7. 10 . 1995 , p. 11 ) — the Court of First                      Nature ) v. Commission of the European Communities H
Instance (Third Chamber, Extended Composition ),
composed of : B. Vesterdorf, President, C. P. Briët, P.                 (Transparency — Access to information — Commission
Lindh, A. Potocki and J. D. Cooke, Judges; J. Palacio                   Decision 94/90/ECSC, EC, Euratom on public access to
Gonzalez, Administrator, for the Registrar, has given a                 Commission documents — Decision refusing access to
judgment on 27 February 1997, in which it:                              documents on the grounds that they relate to the
                                                                        examination by the Commission of a possible
                                                                        infringement of Community law by a Member State —
1 . dismisses the application;                                          Exceptions relating to the public interest and to the
                                                                        institution 's interest in the confidentiality of its
2 . orders the applicants to pay the costs of the                           proceedings — Extent of the obligation to give reasons)
       proceedings, including the costs incurred by the
       intervener La Poste;                                                                         ( 97/C 131/33 )
3 . orders the French Republic to bear its own costs.
                                                                                (Language of the case: English)
(') OJ No C 159 , 24 . 6 . 1995 .
                                                                        In Case T-105/95 : WWF UK (World Wide Fund for
                                                                        Nature ), whose head office is at Godalming, Surrey
                                                                        (United Kingdom ), represented by Georg M. Berrisch,
                                                                        Rechtsanwalt in Hamburg and Brussels, with an address
                                                                        for service in Luxembourg at the Chambers of Turk and
   JUDGMENT OF THE COURT OF FIRST INSTANCE                              Prüm, 13B Avenue Guillaume, supported by the Kingdom
                         ( Fourth Chamber)                              of Sweden ( Agent: Erik Brattgård ), against Commission of
                                                                        the European Communities ( Agents : Carmel O'Reilly and
                          of 5 March 1997
                                                                        Ulrich Wölker ), supported by the French Republic
in      Case    T-96/95 :      Sébastien   Rozand-Lambiotte     v.       ( Agents: Catherine de Salins and Denys Wibaux) and the
          Commission of the European Communities ( 1 )                  United Kingdom of Great Britain and Northern Ireland
                                                                         ( Agents : John E. Collins, Stephen Richards and Jessica
 (Probationary officials — Not established at the end of the            Simor) — application for the annulment of the
probationary period — Articles 26, 34 and 43 of the Staff                Commission Decision of 2 February 1995 refusing the
Regulations — Right to a fair hearing — Inadequate                      applicant access to Commission documents relating to the
statement of reasons — Duty to have regard for the                      examination of a project to build an interpretative centre
      interests of officials — Manifest error of assessment)
                                                                         at Mullaghmore ( Ireland) and, in particular, to those
                            ( 971C 131 /32 )                             documents relating to the question as to whether
                                                                         structural funds could be used for that project — the
                  (Language of the case: French)                         Court of First Instance ( Fourth Chamber, Extended
                                                                         Composition ), composed of: K. Lenaerts, President, R.
In Case T-96/95 , Sébastien Rozand-Lambiotte, former                     García-Valdecasas, P. Lindh, J. Azizi and J. D. Cooke,
probationary official of the Commission of the European                 Judges; H. Jung, Registrar, has given a judgment on
 Communities, residing at La Javie ( France ), represented by            5 March 1997, in which it:
Jean-Noel Louis, Thierry Demaseure and Ariane Tornel, of
the Brussels Bar, with an address for service in
 Luxembourg at the office of Fiduciaire Myson Sari, 30 Rue                1 . annuls the decision of the Commission of 2 February
 de Cessange, v. Commission of the European Communities                        1995 refusing the applicant access to Commission
 ( Agents : Gianluigi Valsesia and Julian Currall ) —                          documents relating to the examination of a project to
 application for annulment of the Commission's decision of                     build an interpretative centre at Mullaghmore
                                                                               (Ireland);
 12 July 1994 to dismiss the applicant at the end of his
 probationary period — the Court of First Instance ( Fourth
 Chamber), composed of K. Lenaerts, President of the
                                                                         2 . orders the Commission to pay the costs of the
 Chamber, and P. Lindh and J. D. Cooke, Judges; M. A.
                                                                               applicant;
 Mair, Administrator, for the Registrar, has given a
 judgment on 5 March 1997, in which it:
                                                                          3 . orders the Kingdom of Sweden, the French Republic
  1 . dismisses the application;                                               and the United Kingdom of Great Britain and
                                                                               Northern Ireland to bear their own costs.
 2 . orders the parties to bear their own costs.
                                                                          (') OJ No C 174, 8 . 7 . 1995 .
 H OJ No C 137, 3 . 6 . 1995 .


title: Case C-72/11: Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel

text:
               27.8.2011

               EN

               Official Journal of the European Union

               C 252/12

         Reference for a preliminary ruling from the Oberlandesgericht Düsseldorf (Germany) lodged on 18 February 2011 — Der Generalbundesanwalt beim Bundesgerichtshof v Mohsen Afrasiabi, Behzad Sahabi and Heinz Ulrich Kessel
   (Case C-72/11)
   2011/C 252/23
   Language of the case: German

      Referring court

   Oberlandesgericht Düsseldorf

      Parties to the main proceedings

      Applicant: Der Generalbundesanwalt beim Bundesgerichtshof

      Defendants: Mohsen Afrasiabi, Behzad Sahabi, Heinz Ulrich Kessel

      Questions referred

               1.

               In order to make available an economic resource within the meaning of Article 7(3) of Council Regulation (EC) No 423/2007 (1), is it necessary that it can be used immediately by the listed person/entity for the purposes of acquiring funds or services? Or must Article 7(3) of Council Regulation (EC) No 423/2007 be interpreted as meaning that the prohibition on making available an economic resource indirectly encompasses the supply and installation of a functional, but not yet ready-to-use economic resource (in this case: a vacuum furnace) to a third party in Iran, who intends, at a later date, to manufacture products with that resource for a legal person, entity or body listed in Annexes IV and V to the regulation?

               2.

               Must Article 7(4) of Council Regulation (EC) No 423/2007 be interpreted as meaning that circumvention can occur only where the offender formally adapts his conduct — albeit only ostensibly — to the prohibitions arising from Article 7(1) to (3) of Council Regulation (EC) No 423/2007, with the effect that even applying the broadest interpretation that conduct is no longer covered by the prohibitions? Are the elements of the prohibitions on circumvention and on making available economic resources thus mutually exclusive? If answered in the affirmative: can conduct which would not (yet) be covered by the prohibition on making available economic resources (indirectly) nevertheless constitute circumvention within the meaning of Article 7(4) of Council Regulation (EC) No 423/2007?
               Or does Article 7(4) of Council Regulation (EC) No 423/2007 constitute a catch-all clause, under which any act is covered which is intended to lead to an economic resource being made available to a listed person or entity?

               3.

               Does the subjective condition ‘knowingly and intentionally’ in Article 7(4) of Council Regulation (EC) No 423/2007 require on the one hand actual knowledge that the effect or objective of the activities is circumvention of the prohibition on making available economic resources and in addition a more extensive volitional component, at least in the sense that the offender approves of the possibility that circumvention of the prohibition might occur? Or must it in fact be important to the offender to circumvent the prohibition and must he to that extent act intentionally?
               Or is it not necessary that the prohibition be knowingly circumvented, it being sufficient instead that the offender merely considers circumvention possible and approves of that possibility?

      (1)  Council Regulation (EC) No 423/2007 of 19 April 2007 concerning restrictive measures against Iran (OJ 2007 L 103, p. 1).


title: Case C-82/10: Judgment of the Court (Fourth Chamber) of 29 September 2011 — European Commission v Ireland (Failure of a Member State to fulfil obligations — Directive 73/239/EEC — Articles 6, 8, 9, 13 and 15 to 17 — Directive 92/49/EEC — Articles 22 and 23 — Direct insurance other than life assurance — Amendment of statutes of an insurance body as regards its capacity — Non-application of the European Union insurance legislation in respect of insurance other than life assurance)

text:
               19.11.2011

               EN

               Official Journal of the European Union

               C 340/3

         Judgment of the Court (Fourth Chamber) of 29 September 2011 — European Commission v Ireland
   (Case C-82/10) (1)

   (Failure of a Member State to fulfil obligations - Directive 73/239/EEC - Articles 6, 8, 9, 13 and 15 to 17 - Directive 92/49/EEC - Articles 22 and 23 - Direct insurance other than life assurance - Amendment of statutes of an insurance body as regards its capacity - Non-application of the European Union insurance legislation in respect of insurance other than life assurance)
   2011/C 340/04
   Language of the case: English

      Parties

      Applicant: European Commission (represented by: N. Yerrell, Agent)

      Defendant: Ireland (represented by: D. O’Hagan, Agent, E. Regan SC)

      Re:

   Failure of a Member State to fulfil its obligations — Infringement of Articles 6, 8, 9, 13, 15, 16 and 17 of the First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance (OJ 1973 L 228, p. 3) and Articles 22 and 23 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance and amending Directives 73/239/EEC and 88/357 (third non-life insurance Directive) (OJ 1992 L 228, p. 1)

      Operative part of the judgment

   The Court rules and declares:

               1.

               By failing to apply to all insurance undertakings, on a non-discriminatory basis, the European Union insurance legislation in its entirety and particularly Articles 6, 8, 9, 13 and 15 to 17 of the First Council Directive 73/239/EEC of 24 July 1973 on the coordination of laws, regulations and administrative provisions relating to the taking-up and pursuit of the business of direct insurance other than life assurance, as amended by Directive 2005/68/EC of the European Parliament and of the Council of 16 November 2005 and Articles 22 and 23 of Council Directive 92/49/EEC of 18 June 1992 on the coordination of laws, regulations and administrative provisions relating to direct insurance other than life assurance and amending Directives 73/239 and 88/357/EEC (third non-life insurance Directive), as amended by Directive 2005/68, Ireland has failed to fulfil its obligations under those directives.

               2.

               Ireland shall pay the costs.

      (1)  OJ C 113, 1.5.2010.


title: Case C-533/15: Order of the President of the Court of 2 May 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Feliks Frisman v Finnair Oyj

text:
               1.8.2016

               EN

               Official Journal of the European Union

               C 279/24

         Order of the President of the Court of 2 May 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Feliks Frisman v Finnair Oyj
   (Case C-533/15) (1)

   (2016/C 279/35)
   Language of the case: German
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 48, 8.2.2016.


title: Case T-154/16: Action brought on 14 April 2016 — GRID applications v EUIPO (APlan)

text:
               6.6.2016

               EN

               Official Journal of the European Union

               C 200/29

         Action brought on 14 April 2016 — GRID applications v EUIPO (APlan)
   (Case T-154/16)
   (2016/C 200/41)
   Language of the case: German

      Parties

      Applicant: GRID applications GmbH (Vienna, Austria) (represented by: M. Meyenburg, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Details of the proceedings before EUIPO

      Trade mark at issue: EU word mark ‘APlan’ — Application No 13 374 079

      Contested decision: Decision of the Fourth Board of Appeal of EUIPO of 15 February 2016 in Case R 1819/2015-4

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision, with the result that EUIPO will have to allow Community trade mark application 13374079 to proceed to registration in accordance with the application or, in the alternative, as restricted for the classes of goods and services 9, 35 and 42, or, in any event, solely for Classes 9 and 42;

               —

               order EUIPO to pay the costs incurred in the appeal proceedings before OHIM/EUIPO and in the present proceedings.

      Plea in law

               —

               Infringement of Article 7 of Regulation No 207/2009.


title: Case T-385/12: Action brought on 22 August 2012 — France Télécom v Commission

text:
               13.10.2012

               EN

               Official Journal of the European Union

               C 311/15

         Action brought on 22 August 2012 — France Télécom v Commission
   (Case T-385/12)
   2012/C 311/20
   Language of the case: French

      Parties

      Applicant: France Télécom (Paris, France) (represented by: S. Hautbourg and S. Cochard-Quesson, lawyers)

      Defendant: European Commission

      Form of order sought

               —

               Annul the decision;

               —

               Order the Commission to pay all the costs.

      Pleas in law and main arguments

   By its application, the applicant seeks the annulment of Commission Decision C(2011) 9403 final of 20 December 2011 declaring compatible with the internal market, under certain conditions, the aid implemented by the French Republic in favour of France Télécom concerning the reform of the method of financing the pensions of public-service employees working for France Télécom (State aid No C 25/2008 (ex NN 23/2008)).
   In support of the action, the applicant relies on four pleas in law.

               1.

               First plea in law, alleging, principally, errors of law and assessment and infringement of the duty to state reasons since the Commission categorised as State aid, within the meaning of Article 107(1) TFEU, the reduction in the contribution to be paid to the State in respect of pensions awarded to officials of France Télécom. The applicant argues that the Commission made these errors:

                           —

                           by finding that there was an economic advantage;

                           —

                           by taking the view that the measure is selective;

                           —

                           by taking the view that the measure is liable to distort competition; and

                           —

                           by finding that it was State aid despite the fact that the Commission accepts that the advantage was neutralised at least until 31 December 2010 by payment of an exceptional lump-sum contribution.

               2.

               Second plea in law, alleging, in the alternative, errors of law and assessment in that the Commission made the compatibility of the alleged aid subject to the conditions laid down in Article 2 of the contested decision. The applicant submits that the Commission made these errors by taking the view that the applicant is subject to lower social charges than its competitors and by refusing to apply the precedent of ‘La Poste’ to the France Télécom proceeding.

               3.

               Third plea in law, alleging, in the alternative, errors in assessment and infringement of the duty to state reasons in the assessment of the period during which the aid defined by the contested decision was neutralised by the exceptional lump-sum contribution. The applicant submits that the Commission made these errors:

                           —

                           by including the charges of compensation and over-compensation in the calculation of the reduction in the charges which follows from the reduction in the employer’s contribution;

                           —

                           by holding that the exceptional lump-sum contribution should be capitalised at the discount rate of 5,53 % instead of 7 %.

               4.

               Fourth plea in law, alleging, in the alternative, infringement of the procedural rights of the applicant.


title: Case C-177/15: Judgment of the Court (Third Chamber) of 23 November 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Nelsons GmbH v Ayonnax Nutripharm GmbH, Bachblütentreff Ltd (Reference for a preliminary ruling — Consumer information and protection — Regulation (EC) No 1924/2006 — Nutrition and health claims made on foods — Transitional measures — Article 28(2) — Products bearing trade marks or brand names existing before 1 January 2005 — ‘Bach flower’ remedies — European Union mark RESCUE — Products marketed as medicinal products before 1 January 2005 and as foodstuffs after that date)

text:
               30.1.2017

               EN

               Official Journal of the European Union

               C 30/7

         Judgment of the Court (Third Chamber) of 23 November 2016 (request for a preliminary ruling from the Bundesgerichtshof — Germany) — Nelsons GmbH v Ayonnax Nutripharm GmbH, Bachblütentreff Ltd
   (Case C-177/15) (1)

   ((Reference for a preliminary ruling - Consumer information and protection - Regulation (EC) No 1924/2006 - Nutrition and health claims made on foods - Transitional measures - Article 28(2) - Products bearing trade marks or brand names existing before 1 January 2005 - ‘Bach flower’ remedies - European Union mark RESCUE - Products marketed as medicinal products before 1 January 2005 and as foodstuffs after that date))
   (2017/C 030/06)
   Language of the case: German

      Referring court

   Bundesgerichtshof

      Parties to the main proceedings

      Applicant: Nelsons GmbH

      Defendants: Ayonnax Nutripharm GmbH, Bachblütentreff Ltd

      Operative part of the judgment

   Article 28(2), first sentence, of Regulation (EC) No 1924/2006 of the European Parliament and of the Council of 20 December 2006 on nutrition and health claims made on foods, as amended by Regulation (EC) No 107/2008 of the European Parliament and of the Council of 15 January 2008, must be interpreted as meaning that that provision applies in the situation in which a foodstuff bearing a trade mark or brand name was, before 1 January 2005, marketed as a medicinal product and then, although having the same physical characteristics and bearing the same trade mark or brand name, as a foodstuff after that date.

      (1)  OJ C 213, 29.6.2015.


title: Case T-171/13: Action brought on 21 March 2013 — Benelli Q.J./OHIM — Demharter (MOTOBI B PESARO)

text:
               25.5.2013

               EN

               Official Journal of the European Union

               C 147/28

         Action brought on 21 March 2013 — Benelli Q.J./OHIM — Demharter (MOTOBI B PESARO)
   (Case T-171/13)
   2013/C 147/50
   Language in which the application was lodged: English

      Parties

      Applicant: Benelli Q.J. Srl (Pesaro, Italy) (represented by: P. Lukácsi, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Demharter GmbH (Dillingen, Germany)

      Form of order sought

   The applicant claims that the Court should:

               —

               Alter the defendant’s decision and order the dismissal of the application for revocation filed by the cancellation applicant;

               —

               Annul the defendant’s decision and remit the case to OHIM for further examination and a new decision should the Court consider that it is inevitable to conduct another thorough analysis of the evidence of genuine use;

               —

               Order the defendant to pay the applicant’s costs.

      Pleas in law and main arguments

      Registered Community trade mark in respect of which an application for revocation has been made: The figurative mark ‘MOTOBI B PESARO’ for goods in classes 9, 12 and 25 — Community trade mark registration No 2 262 269

      Proprietor of the Community trade mark: The applicant

      Party applying for revocation of the Community trade mark: The other party to the proceedings before the Board of Appeal

      Decision of the Cancellation Division: Revoked the Community trade mark

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 51(1)(a) of Council Regulation No 207/2009.


title: Case C-45/99: Action brought on 16 February 1999 by the Commission of the European Communities against the French Republic

text:
10.4.1999              EN                    Official Journal of the European Communities                                  C 100/13
Germany, and not that received by him in his last                       provisions in order to comply with the directive referred
employment in Germany.                                                  to in the Commission's application.
                                                                        (1) OJ L 216, 20.8.1994, p. 12.
That method of calculation clearly penalises the worker
concerned on account of the fact that he is resident in a
Member State other than that in which he has worked,
and is incompatible with the main objective of Regulation
(EEC) No 1408/71, which is to facilitate freedom of
movement for workers.
(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on
    the application of security schemes to employed persons and         Action brought on 16 February 1999 by the Commission
    to members of their families moving within the Community            of the European Communities against the French Republic
    (OJ, English Special Edition 1971 (II), p. 416).
                                                                                (Case C-46/99)
                                                                                (1999/C 100/23)
                                                                        An action against the French Republic was brought before
                                                                        the Court of Justice of the Euroepan Communities on
Action brought on 16 February 1999 by the Commission                    16 February 1999 by the Commission of the European
of the European Communities against the French Republic                 Communities, represented by Dimitrios Gouloussis, Legal
                                                                        Adviser, acting as Agent, with an address for service in
                          (Case C-45/99)                                Luxembourg at the office of Carlos Gómez de la Cruz,
                                                                        Wagner Centre, Kirchberg.
                         (1999/C 100/22)
                                                                        The Commission of the European Communities claims
An action against the French Republic was brought before
                                                                        that the Court should:
the Court of Justice of the European Communities on
16 February 1999 by the Commission of the European
Communities, represented by Dimitrios Gouloussis, Legal
                                                                        Ð declare that, by failing within the prescribed period to
Adviser, acting as Agent, with an address for service in
                                                                            adopt, alternatively to communicate to the
Luxembourg at the Office of Carlos Gómez de la Cruz,
                                                                            Commission, the laws, regulations and administrative
Wagner Centre, Kirchberg.
                                                                            measures necessary in order fully to comply with
                                                                            Council Directive 93/104/EEC of 23 November 1993
                                                                            concerning certain aspects of the organisation of
The Commission of the European Communities claims
                                                                            working time (1), the French Republic has failed to
that the Court should:
                                                                            fulfil its obligations under the Treaty and under that
                                                                            directive;
Ð declare that, by failing within the prescribed period to
     adopt, alternatively to communicate to the
     Commission, the laws, regulations and administrative               Ð order the French Republic to pay the costs.
     measures necessary in order fully to comply with
     Council Directive 94/33/EC of 22 June 1994 on the
     protection of young persons at work (1), the French                Pleas in law and main arguments adduced in support
     Republic has failed to fulfil its obligations under the
     EC Treaty and under that directive;
                                                                        Under Article 189 of the EC Treaty, according to which a
Ð order the French Republic to pay the costs.                           directive is to be binding, as to the result to be achieved,
                                                                        upon each Member State to which it is addressed,
                                                                        Member States are required to observe the time-limits laid
                                                                        down in directives for their transposition. The time-limit
Pleas in law and main arguments adduced in support
                                                                        in the present case expired on 23 November 1996 without
                                                                        the French Republic having brought into force the
                                                                        necessary provisions in order to comply with the directive
Under Article 189 of the EC Treaty, according to which a
                                                                        referred to in the Commission's application.
directive is to be binding, as to the result to be achieved,
upon each Member State to which it is addressed,
Member States are required to observe the time-limits laid              (1) OJ L 307, 13.12.1993, p. 18.
down in directives for their transposition. The time-limit
in the present case expired on 22 June 1996 without the
French Republic having brought into force the necessary


title: Order of the President of the Court of First Instance of 4 February 1999 in Case T-196/98 R: Eduardo Pefia Abizanda and others v Commission of the European Communities (Application for interim measures - Admissibility of the main action)

text:
19.6.1999               EN                     Official Journal of the European Communities                                          C 174/5
      ORDER OF THE COURT OF FIRST INSTANCE                                for suspension of operation of the decision of the Commission
                                                                          contained in the letter dated 9 Septernber 1998 addressed to
                         of 16 March 1999                                 the Permanent Representative of the Kingdom of Spain to the
                                                                          European Union, concerning the adoption of draft legislation
                                                                          intended to give effect, in national law, to Article 11 of
in Case T-147/98: Karola Gluiber v Council of the Euro-                   Annex VIII of the Staff Regulations of officials of the European
pean Union and Commission of the European Communi-                        Communities regarding transfers of pension rights — the
                                ties (1)                                  President of the Court of First Instance made an order on
                                                                          4 February 1999, the operative part of which is as follows:
                    (Manifest inadmissibility)
                                                                          1. The application for interim measures is dismissed;
                          (1999/C 174/10)
                                                                          2. The costs are reserved.
                   (Language of the case: German)
                                                                          (1) OJ C 48 of 20.2.1999.
In Case T-147/98: Karola Gluiber, residing at Staudernheim
(Germany), represented by Wolfgang Clausen and Wulf Claus-
en, Rechtsanwälte, Kiel (Germany), with an address for service
in Luxembourg at the Chambers of Messrs Decker & Braun,
16 Avenue Marie-Thérèse, v Council of the European Union
and Commission of the European Communities — application
for annulment of discriminatory measures taken against the
applicant by the Federal Republic of Germany, alternatively
for a declaration that the Council and the Commission should                    ORDER OF THE COURT OF FIRST INSTANCE
have taken steps to contest those measures — the Court of
First Instance (First Chamber), composed of: B. Vesterdorf,
President, and J. Pirrung and M. Vilaras, Judges; H. Jung,                                        of 9 March 1999
Registrar, made an order on 16 March 1999, the operative
part of which is as follows:                                              in Case T-206/98: Clauni S.A. and Others v Commission
                                                                                of the European Communities (1)
1. The application is dismissed as manifestly inadmissible;
2. The applicant is ordered to bear her own costs.                                           (Manifest inadmissibility)
(1) Notice of the application has not been published.                                             (1999/C 174/12)
                                                                                (Language of the case: French)
                                                                          In Case T-206/98: Clauni S.A., established at Agen (France),
ORDER OF THE PRESIDENT OF THE COURT OF FIRST                              Jean-Marie Bissieres, company chairman, residing at Croix
                             INSTANCE                                     Blanche (France), SA Lomagenais, now known as SA Loma,
                                                                          established at Penne D’Agenais (France), and André Lompech,
                                                                          company chairman, residing at Canet (France), represented by
                        of 4 February 1999                                Daniel Veyssiere, of the Agen Bar, with an address for service
                                                                          in Luxembourg at the Chambers of Aloïse May, 31 Grand-Rue,
in Case T-196/98 R: Eduardo Pefia Abizanda and others v                   v Commission of the European Communities — application
       Commission of the European Communities (1)                         for an order of the Court allowing a rebate application lodged
                                                                          by the first applicant with the French customs authorities on
(Application for interim measures — Admissibility of the                  23 October 1998 in relation to certain imports of mushrooms
                            main action)                                  originating in Poland — the Court (Fourth Chamber), compo-
                                                                          sed of: R.M. Moura Ramos, President, and V. Tiili and
                                                                          P. Mengozzi, Judges; H. Jung, Registrar, made an order on
                          (1999/C 174/11)
                                                                          9 March 1999, the operative part of which is as follows:
                   (Language of the case: Spanish)                        1. The application is dismissed as manifestly inadmissible;
In Case T-196/98 R: Eduardo Peña Abizanda and 105 other                  2. The applicants are ordered to bear their own costs.
officials of the Commission of the European Communities,
represented by Antonio Creus Carreras, of the Barcelona Bar,
and Begoña Uriarte Valiente, of the Madrid Bar, with an                  (1) OJ No C 71 of 13.3.1999.
address for service at 78 Avenue d’Auderghem, Brussels, v
Commission of the European Communities (Agents: Gianluigi
Valsesia, Julian Currall and José Rivas Andres) — application


title: Case T-497/13: Order of the General Court of 16 September 2014 — Boston Scientific Neuromodulation v OHIM (PRECISION SPECTRA) (Community trade mark — Application for Community word mark PRECISION SPECTRA — Absolute grounds for refusal — Descriptive character — Article 7(1)(c) of Regulation (EC) No 207/2009 — Action in part manifestly inadmissible and in part manifestly lacking any foundation in law)

text:
               1.12.2014

               EN

               Official Journal of the European Union

               C 431/22

         Order of the General Court of 16 September 2014 — Boston Scientific Neuromodulation v OHIM (PRECISION SPECTRA)
   (Case T-497/13) (1)

   ((Community trade mark - Application for Community word mark PRECISION SPECTRA - Absolute grounds for refusal - Descriptive character - Article 7(1)(c) of Regulation (EC) No 207/2009 - Action in part manifestly inadmissible and in part manifestly lacking any foundation in law))
   (2014/C 431/38)
   Language of the case: English

      Parties

      Applicant: Boston Scientific Neuromodulation Corp. (Valencia, California, United States) (represented by: P. Rath and W. Festl-Wietek, lawyers)

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

      Re:

   Action brought against the decision of the Fifth Board of Appeal of OHIM of 17 May 2013 (Case R 2099/2012-5), concerning an application for registration of the word mark PRECISION SPECTRA as a Community trade mark.

      Operative part of the order

               1.

               The action is dismissed.

               2.

               Boston Scientific Neuromodulation Corp. is ordered to pay the costs.

      (1)  OJ C 344, 23.11.2013.


title: Case T-24/08: Action brought on 16 January 2008 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle)

text:
               8.3.2008

               EN

               Official Journal of the European Union

               C 64/62

         Action brought on 16 January 2008 — Weldebräu v OHIM — Kofola Holding (Shape of a bottle)
   (Case T-24/08)
   (2008/C 64/100)
   Language in which the application was lodged: German
   Parties

      Applicant: Weldebräu GmbH & Co. KG (Plankstadt, Germany) (represented by W. Göpfert, lawyer)

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

      Other party to the proceedings before the Board of Appeal: Kofola Holding a.s. (Ostrava, Czech Republic)
   Form of order sought

               —

               annulment of the decision of the Fourth Board of Appeal of 15 November 2007 in Case R 1096/2006-4;

               —

               the defendant to be ordered to pay the costs.

         Pleas in law and main arguments

      Applicant for a Community trade mark: Kofola Holding a.s.

      Community trade mark concerned: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 30, 32 and 33 (Application No 3 367 539)

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

      Mark or sign cited in opposition: the three-dimensional mark ‘shape of a bottle’ for goods in Classes 21, 32 and 33 (Community trade mark No 690 016)

      Decision of the Opposition Division: Rejection of the opposition

      Decision of the Board of Appeal: Dismissal of the appeal

      Pleas in law: Infringement of Article 8(1)(b) of Regulation (EC) No 40/94 (1), as there is a likelihood of confusion between the marks in opposition.

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


title: Case T-192/06: Judgment of the General Court of 16 June 2011 — Caffaro v Commission (Competition — Agreements, decisions and concerted practices — Hydrogen peroxide and sodium perborate — Decision finding an infringement of Article 81 EC — Fines — Limitation period — Differential treatment — Duration of the infringement — Attenuating circumstances)

text:
               30.7.2011

               EN

               Official Journal of the European Union

               C 226/21

         Judgment of the General Court of 16 June 2011 — Caffaro v Commission
   (Case T-192/06) (1)

   (Competition - Agreements, decisions and concerted practices - Hydrogen peroxide and sodium perborate - Decision finding an infringement of Article 81 EC - Fines - Limitation period - Differential treatment - Duration of the infringement - Attenuating circumstances)
   2011/C 226/40
   Language of the case: Italian

      Parties

      Applicant: Caffaro Srl (Milan, Italy) (represented by: A. Santa Maria and C. Biscaretti di Ruffia, lawyers)

      Defendant: European Commission (represented initially by V. Di Bucci and F. Amato, and subsequently by V. Di Bucci and V. Bottka, Agents)

      Re:

   Application for annulment of Commission Decision C(2006) 1766 final of 3 May 2006 relating to a proceeding under Article 81 [EC] and Article 53 of the EEA Agreement (Case COMP/F/38.620 — Hydrogen peroxide and perborate), in so far as in that decision the Commission imposes a fine jointly and severally on the applicant and SNIA SpA and, in the alternative, a reduction of that fine.

      Operative part of the judgment

   The Court:

               1.

               Dismisses the action;

               2.

               Orders Caffaro Srl to pay the costs.

      (1)  OJ C 212, 2.9.2006.


title: Case C-389/14: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 18 August 2014  — Esso Italiana srl and Others v Comitato nazionale per la gestione della Direttiva 2003/87/CE and Others

text:
               20.10.2014

               EN

               Official Journal of the European Union

               C 372/5

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 18 August 2014 — Esso Italiana srl and Others v Comitato nazionale per la gestione della Direttiva 2003/87/CE and Others
   (Case C-389/14)
   2014/C 372/09
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Esso Italiana srl, Eni SpA, Linde Gas Italia srl

      Defendants: Comitato nazionale per la gestione della Direttiva 2003/87/CE e per il supporto nella gestione delle attività di progetto del Protocollo di Kyoto, Ministero dell’Ambiente e della Tutela del Territorio e del Mare, Ministero dell’Economia e delle Finanze, Presidenza del Consiglio dei Ministri

      Questions referred

               1)

               Is European Commission Decision 2013/448/EU (1) of 5 September 2013 invalid for not having taken into account, in the calculation of the allowances to be allocated free of charge, the percentage of emissions associated with waste gas combustion — or steel processing gas — or of emissions associated with the heat produced by cogeneration, thereby infringing Article 290 TFEU and Article 10a(1),(4) and (5) of Directive 2003/87/EC (2), going beyond the limits of the powers conferred by that directive and at variance with its objectives (to encourage more energy-efficient techniques and to protect the needs of economic development and employment)?

               2)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid, in the light of Article 6 TEU, on grounds of its inconsistency with Article 1 of the Additional Protocol to the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’) and Article 17 of the ECHR, owing to undue failure to respect the applicant companies’ legitimate expectation of remaining in possession of a good consisting of the number of the allowances allocated to them on a preliminary basis and to which they are entitled on the basis of Directive 2003/87, thereby depriving those companies of the economic benefit associated with that good?

               3)

               Furthermore, is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, given that the decision infringes the second paragraph of Article 296 TFEU and Article 41 of the Charter of Fundamental Rights of the European Union owing to its failure to provide an adequate statement of reasons?

               4)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, given that the decision infringes Article 10a(5) of Directive 2003/87/EC, fails to respect the principle of proportionality enshrined in Article 5(4) TEU and is also vitiated by failure to carry out a proper inquiry and error of assessment, in the light of the fact that the calculation of the maximum number of allowances to be allocated free of charge (relevant for the purposes of defining a uniform cross-sectoral correction factor) did not take into account the effects of the changes in the interpretation of the term ‘combustion plant’ between the first phase (2005-2007) and the second phase (2008-2012) of the implementation of Directive 2003/87/EC?

               5)

               Is European Commission Decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, on grounds of infringement of Articles 10a(5) and 9a(2) of Directive 2003/87/EC, and also on account of the failure to carry out a proper inquiry and error of assessment, in view of the fact that the calculation of the maximum number of allowances to be allocated free of charge (relevant for the purposes of defining a uniform cross-sectoral correction factor) was made on the basis of data, provided by the Member States, which are mutually inconsistent because based on different interpretations of Article 9a(2) of Directive 2003/87/EC?

               6)

               Is European Commission decision 2013/448/EU of 5 September 2013 invalid as regards its definition of the cross-sectoral correction factor, on grounds of infringement of the procedural rules under Articles 10a(1) and 23(3) of Directive 2003/87/EC?

      (1)  Commission Decision of 5 September 2013 concerning national implementation measures for the transitional free allocation of greenhouse gas emission allowances in accordance with Article 11(3) of Directive 2003/87/EC of the European Parliament and of the Council (OJ 2013 L 240, p. 27).

      (2)  Directive 2003/87/EC of the European Parliament and of the Council of 13 October 2003 establishing a scheme for greenhouse gas emission allowance trading within the Community and amending Council Directive 96/61/EC (OJ 2003 L 275, p. 32).


title: Case F-135/12: Action brought on 9 November 2012 — ZZ v REA

text:
               26.1.2013

               EN

               Official Journal of the European Union

               C 26/74

         Action brought on 9 November 2012 — ZZ v REA
   (Case F-135/12)
   2013/C 26/154
   Language of the case: English

      Parties

      Applicant: ZZ (represented by: S. Rodrigues, A. Blot, A. Tymen, lawyers)

      Defendant: Research Executive Agency

      Subject-matter and description of the proceedings

   The annulment of the decision not to include the Applicant on the reserve list of the REA/2011/TA/PO/AD5 selection procedure.

      Form of order sought

               —

               To annul the decision of 21 February 2012 not to include the Applicant on the reserve list of the selection procedure REA/2011/TA/PO/AD5;

               —

               to annul the decision of 10 August 2012 against the Applicant’s complaint;

               —

               to order to the Defendant to bear the entire costs.


title: Action brought on 30 May 1997 by the Commission of the European Communities against the Kingdom of Belgium (Case C-207/97)

text:
No C 228/6            EN                   Official Journal of the European Communities                                    26 . 7. 97
    legislation of a Member State remedies are available in           individual actions for enforcement from being taken
    respect of acts of the administration generally and               or pursued after the measure initiating the special
    different remedies are available in respect of decisions          administration procedure has been adopted ?
     concerning entry by nationals of that Member State,
     the obligation imposed on the Member State by that
    provision is satisfied if nationals of other Member
     States enjoy the same remedies as those available
     against acts of the administration generally in that             Action brought on 30 May 1997 by the Commission of
     Member State.                                                    the European Communities against the Kingdom of
                                                                                Belgium
                                                                                Case C-207/97 )
2 . On a proper construction of Article 9 of Directive 64/
     221 /EEC, the three cases mentioned in Article 9 (1 )                                        ( 97/C 228/ 12 )
     (namely 'where there is no right of appeal to a court
     of law, or where such appeal may be only in respect of           An action against the Kingdom of Belgium was brought
     the legal validity of the decision, or where the appeal          before the Court of Justice of the European Communities
     cannot have suspensory effect') apply equally as                 on 30 May 1997 by the Commission of the European
     regards Article 9 (2), that is to say, where the decision        Communities, represented by Richard B. Wainwright,
     challenged is a refusal to issue a first residence permit        Principal Legal Adviser, and Jean-Francis Pasquier, a
     or a decision ordering expulsion adopted before the              national civil servant on secondment to the Legal Service,
     issue of such a permit.                                          acting as Agents, with an address for service in
                                                                      Luxembourg at the office of Carlos Gomez de la Cruz,
3 . A national of a Member State against whom an initial              Wagner Centre, Kirchberg.
     decision refusing entry into another Member State has
     been made on grounds of public order or public                   The applicant claims that the Court should:
     security has a right of appeal under Article 8 of the            — declare that, by failing, in breach of Article 7 of
     directive and, if appropriate, a right to obtain the                   Directive 76/464/EEC ( x ), to adopt the programmes
      opinion of an independent competent authority in                      for the reduction of pollution incorporating quality
     accordance with Article 9 of the Directive, with                       objectives, at least as regards the 99 substances listed
      respect to a fresh decision taken by the administrative               in the annex to the application, or by failing to
     authorities on an application made by him after a                      communicate to the Commission summaries of the
      reasonable time has elapsed since the last decision                   programmes in question and the results of the
     prohibiting him from entering the country.                             application thereof, the Kingdom of Belgium has failed
                                                                            to fulfil its obligations under the EC Treaty,
(■) OJ No C 159 , 24 . 6 . 1995 .
                                                                       — order the Kingdom of Belgium to pay the costs .
                                                                       Pleas in law and main arguments adduced in support:
                                                                       The Directive, which entered into force on the date of its
                                                                       notification, that is to say, 5 May 1976, pursuant to
Reference for a preliminary ruling by the Corte Suprema                Article 191 of the EEC Treaty ( which applied at that
di Cassazione — Sezione Prima Civile by order of that                  time ), does not expressly prescribe the period within
court of 10 February 1997 in the case of Ecotrade Sri                  which the obligations therein set out were to be
       against AFS — Altiforni e Ferriere di Servola SpA               specifically implemented. However, as regards the national
                          ( Case C-200/97                              programmes for the reduction of pollution caused by the
                                                                       substances referred to in List II in the Annex to the
                            ( 97/C 228/ 11
                                                                       Directive, it is apparent from Articles 7 and 12 of the
                                                                       Directive that the Member States were obliged, in
 Reference has been made to the Court of Justice of the                principle, to draw up the programmes and to
 European Communities by order of the Corte Suprema di                 communicate summaries of them to the Commission by
 Cassazione — Sezione Prima Civile ( Supreme Court of                  5 August 1978 ; nevertheless, by letter dated 3 November
 Cassation, First Civil Division ) of 10 February 1997,                1976, the Commission proposed that the Member States
 which was received at the Court Registry on 26 May                    should act on the basis of the following dates :
 1997, for a preliminary ruling in the case of Ecotrade Sri            15 September 1981 for the programmes for the reduction
 against AFS — Altiforni e Ferriere di Servola SpA on the              of pollution caused by the substances referred to in List II
 following question :                                                  and 15 September 1986 for the implementation of those
                                                                       programmes .
 May a State measure adopted pursuant to Law No 95                     The Commission does not claim that the list of the 99
 which provides for the exemption of large enterprises in              priority substances annexed to the letter before action and
 difficulties from the usual insolvency proceedings and at             the reasoned opinion constitutes a legally binding
 the same time for the enterprise to continue trading be               measure; however, it considers that, so long as the Council
 regarded as aid within the meaning of Article 92 et seq. of           has not fixed emission limit values in respect of substances
 the Treaty, in view of the fact that Decree Law No 414 of             which ought to appear in List I, they must still be treated
 31 July 1981 ( converted into Law No 544/ 1981 ) precludes             as falling within List II .
 ---pagebreak--- 26 . 7. 97             EN                    Official Journal of the European Communities                                   No C 228/7
The Commission further considers that neither the steps                 Action brought on 2 June 1997 by the Commission of the
taken by Belgium with regard to the protection of the                   European Communities against the Council of the
North Sea nor the (national and regional ) Belgian rules                                       European Union
constitute programmes for the reduction of pollution                                           ( Case C-209/97)
within the meaning of Article 7 of the directive.
                                                                                ( 97/C 228/ 14 )
H OJ No L 129, 18 . 5 . 1976, p . 23 .
                                                                        An action against the Council of the European Union was
                                                                        brought before the Court of Justice of the European
                                                                        Communities on 2 June 1997 by the Commission of the
                                                                        European Communities, represented by Michel Nolin and
Action brought on 30 May 1997 by the Commission of                      Pieter Van Nuffel, acting as Agents, with an address for
the European Communities against the Portuguese
                                                                        service in Luxembourg at the office of Carlos Gomez de la
                                                                        Cruz, Wagner Centre.
                                Republic
                          ( Case C-208/97)
                                                                        The Commission of the European Communities claims
                            ( 97/C 228/13 )                             that the Court should :
An action against the Portuguese Republic was brought                   — annul      Council     Regulation    ( EC )   No   515/97  of
before the Court of Justice of the European Communities                     13 March 1997 on mutual assistance between the
on 30 May 1997 by the Commission of the European                            administrative authorities of the Member States and
Communities, represented by Francisco de Sousa Fialho,                      cooperation between the latter and the Commission to
of its Legal Service, acting as Agent, with an address for                  ensure the correct application of the law on customs
service in Luxembourg at the office of Carlos Gomez de la                   and agricultural matters ( j ),
Cruz, Wagner Centre, Kirchberg.
                                                                        — maintain in force, pursuant to Article 174 of the EC
The applicant claims that the Court should:                                 Treaty, Titles V and VI of the abovementioned
                                                                            Regulation,
— declare that, by failing to adopt all the laws,
     regulations or administrative provisions necessary to
     comply with Council Directive 84/156/EEC ( J ) of                  — order the defendant to pay the costs .
     8 March 1984 on limit values and quality objectives
     for mercury discharges by sectors other than the chlor            Pleas in law and main arguments adduced in support:
     alkali electrolysis industry, inasmuch as it neither drew
     up or implemented the specific programmes provided
     for in Article 4 thereof, the Portuguese Republic has              — Incorrect legal basis :
     failed to fulfil its obligations under the third
     paragraph of Article 189 of the EC Treaty and                          The Regulation at issue could have been based on
     Article 4 of Directive 84/156/EEC,                                     Article 100a of the EC Treaty, so as to exclude
                                                                            reliance on Article 235 thereof. It is submitted that:
— declare, in the alternative, that, by failing forthwith to
     inform    the   Commission          of such   measures,   the          — like the previous regulation ( Regulation ( EEC )
     Portuguese Republic failed to fulfil its obligations                        No    1468/81 ),    Regulation      ( EC ) No   515/97
     under those provisions,                                                     constitutes a measure for the harmonization of the
                                                                                national laws of the Member States . That initial
                                                                                regulation was based on Article 235 of the EC
 — order the Portuguese Republic to pay the costs .
                                                                                Treaty because, at the time of its adoption,
                                                                                Article 100a of the EC Treaty, which was
 Pleas in law and main arguments adduced in support:                             introduced by the Single European Act, was not
                                                                                yet in existence . Indeed, the last recital in the
 Under the third paragraph of Article 189 of the EC Treaty,                      preamble shows that, according to the Council,
 a directive is to be binding, as to the result to be achieved,                  Article 235 is relied on only as regards the
 upon each Member State to which it is addressed. In the                         establishment of the new ' CIS' database ( Customs
 present case, the Directive was fully applicable as from                        Information System — see Articles 23 to 41 of the
 13 March 1986 and the specific programmes provided for                          Regulation in issue ).
 in Article 4 thereof applied as from 1 January 1989 .
 Despite the prescribed periods having expired, the                              However, the CIS cannot be regarded as an
 Portuguese Republic did not draw up or apply the                                autonomous Community entity. The Member
 abovementioned specific programmes or, in any event, did                        States are, as such, ' CIS partners', as is the
 not inform the Commission thereof.                                              Commission, which does not play a central role in
                                                                                the CIS but performs a coordinating function .
 (') OJ No L 74 , 17. 3 . 1984, p . 49 .
                                                                                The Commission considers, in the alternative, that
                                                                                even if it was necessary, in view of the


title: Case C-26/08: Order of the President of the Court of 4 November 2008 — Commission of the European Communities v Federal Republic of Germany

text:
               21.3.2009

               EN

               Official Journal of the European Union

               C 69/31

         Order of the President of the Court of 4 November 2008 — Commission of the European Communities v Federal Republic of Germany
   (Case C-26/08) (1)

   (2009/C 69/63)

      Language of the case: German

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

      (1)  OJ C 92, 12.4.2008.


title: Case T-774/14: Action brought on 17 November 2014  — Ica Foods v OHIM — San Lucio (GROK)

text:
               26.1.2015

               EN

               Official Journal of the European Union

               C 26/40

         Action brought on 17 November 2014 — Ica Foods v OHIM — San Lucio (GROK)
   (Case T-774/14)
   (2015/C 026/51)
   Language in which the action was brought: Italian

      Parties

      Applicant: Ica Foods SpA (Pomezia, Italy) (represented by: A. Nespega, lawyer)

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

      Other party to the proceedings before the Board of Appeal: San Lucio Srl (San Gervasio Bresciano, Italy)

      Details of the proceedings before OHIM

      Proprietor of the trade mark at issue: Other party to the proceedings before the Board of Appeal

      Trade mark at issue: Word mark ‘GROK’ — Community mark No 4 4 39  956

      Procedure before OHIM: Invalidity proceedings

      Contested decision: Decision of the Second Board of Appeal of OHIM of 9 September 2014 in Case R 1815/2013-2

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision relating to invalidity proceedings No 6374C in respect of the registration of the Community mark GROK No 4439956, for infringement of Articles 62 and 63 of the Community Trade Mark Regulation and/or for infringement of Article 8 of Regulation No 40/94 and/or failure to provide adequate reasons, for those reasons;

               —

               order OHIM to pay the costs of the present proceedings.

      Pleas in law

               —

               infringement of Articles 62 and 63 of the Community Trade Mark Regulation for failure on the part of OHIM to notify the applicant of the deadline for submission of observations in the action, thus in breach of the adversarial principle;

               —

               infringement of Article 8 of Regulation No 40/94 and failure to provide adequate reasons as regards the similarity between the goods deriving from San Lucio milk and the goods covered by the registration of ICA’s marks;

               —

               infringement of the Article 8 of Regulation No 40/94 and failure to provide adequate reasons as regards the similarity between the mark GROK of San Lucio and the mark CRIK CROK of ICA;

               —

               infringement of the Article 8 of Regulation No 40/94 and failure to provide adequate reasons in respect of the repute of the mark CRIK CROK of ICA.


title: Judgment of the Court (Fifth Chamber) of 29 April 2004 in Case C-152/02 (reference for a preliminary ruling from the Bundesfinanzhof): Terra Baubedarf-Handel GmbH v Finanzamt Osterholz-Scharmbeck (Sixth VAT Directive — Article 17(1) and Article 18(1) and (2) — Right to deduct input VAT — Conditions of exercise)

text:
               30.4.2004

               EN

               Official Journal of the European Union

               C 118/21

      JUDGMENT OF THE COURT

   (Fifth Chamber)
   of 29 April 2004
   in Case C-152/02 (reference for a preliminary ruling from the Bundesfinanzhof): Terra Baubedarf-Handel GmbH v Finanzamt Osterholz-Scharmbeck (1)

   (Sixth VAT Directive - Article 17(1) and Article 18(1) and (2) - Right to deduct input VAT - Conditions of exercise)
   (2004/C 118/36)
   Language of the case: German
   In Case C-152/02: reference to the Court under Article 234 EC from the Bundesfinanzhof (Federal Finance Court) (Germany) for a preliminary ruling in the proceedings pending before that court between Terra Baubedarf-Handel GmbH and Finanzamt Osterholz-Scharmbeck — on the interpretation of Articles 17 and 18 of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes — Common system of value added tax: uniform basis of assessment (OJ 1977 L 145, p. 1) — the Court (Fifth Chamber), composed of: P. Jann, acting for the President of the Fifth Chamber, C.W.A. Timmermans, A. Rosas, A. La Pergola and S. von Bahr (Rapporteur), Judges; C. Stix-Hackl, Advocate General; M. Múgica Arzamendi, Principal Administrator, for the Registrar, has given a judgment on 29 April 2004, in which it has ruled:
   For the deduction referred to in Article 17(2)(a) of Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonisation of the laws of the Member States relating to turnover taxes – Common system of value added tax: uniform basis of assessment, the first subparagraph of Article 18(2) of that directive must be interpreted as meaning that the right to deduct must be exercised in respect of the tax period in which the two conditions required by that provision are satisfied, namely that the goods have been delivered or the services performed and that the taxable person holds the invoice or the document which, under the criteria determined by the Member State in question, may be considered to serve as an invoice.

      (1)  OJ C 156, 29.6.2002.


title: Case C-309/14: Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 30 June 2014  — Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze

text:
               29.9.2014

               EN

               Official Journal of the European Union

               C 339/2

         Request for a preliminary ruling from the Tribunale Amministrativo Regionale per il Lazio (Italy) lodged on 30 June 2014 — Confederazione Generale Italiana del Lavoro (CGIL), Istituto Nazionale Confederale Assistenza (INCA) v Presidenza del Consiglio dei Ministri, Ministero dell’Interno, Ministero dell’Economia e delle Finanze
   (Case C-309/14)
   2014/C 339/02
   Language of the case: Italian

      Referring court

   Tribunale Amministrativo Regionale per il Lazio

      Parties to the main proceedings

      Applicants: Confederazione Generale Italiana del Lavoro (CGIL),
   Istituto Nazionale Confederale Assistenza (INCA)

      Defendants: Presidenza del Consiglio dei Ministri,
   Ministero dell’Interno,
   Ministero dell’Economia e delle Finanze

      Question referred

   Do the principles laid down in Council Directive 2003/109/EC (1) as subsequently amended and supplemented, preclude rules of national law, such as those laid down in Article 5(2-ter) of Legislative Decree No 286 of 25 July 1998, in that they provide that ‘the application for the issue and the renewal of the residence permit shall be subject to the payment of a fee, the amount of which shall be set at a minimum of EUR 80 and a maximum of EUR 200 by joint decree of the Ministry of the Economy and Finance and of the Ministry of the Interior which shall also lay down the conditions for the payment …’ thereby fixing a minimum amount for the fee equal to around eight times the charge for the issue of a national identity card?

      (1)  Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16, p. 44).


               24.12.2005

               EN

               Official Journal of the European Union

               C 330/12

         Removal from the register of Case C-400/04 (1)

   (2005/C 330/24)

      Language of the case: Dutch

   By order of 19 September 2005, the President of the Court of Justice of the European Communities has ordered the removal from the register of Case C-400/04: Commission of the European Communities v Kingdom of the Netherlands.

      (1)  OJ C 273, 6.11.2005.