title: Case T-417/03: Action brought on 22 December 2003 by Fédération Internationale des Maisons de l'Europe (FIME) against the Commission of the European Communities

text:
6.3.2004               EN                         Official Journal of the European Union                                            C 59/25
The applicant submits that the Council failed to determine the            —     annul the implied decision to reject the applicant’s
normal value in an appropriate and not unreasonable manner                      complaint submitted on 27 May 2003 in accordance
within the meaning of Article 2(5) of Regulation (EC) No 384/                   with Article 90(2) of the Staff Regulations and seeking
96 (1), as modified, and in conformity with its duty of due care.               the annulment of the contested decision;
The Commission, who initiated an anti-dumping procedure
under Article 5 of the Regulation, should not have ignored the            —     order the defendant to pay to the applicant the sum of
anti-dumping rule according to which costs of by-products                       EUR 20 000 assessed on an equitable basis, subject to
should not be taken into account, but instead should be                         increase or decrease in the course of the proceedings, in
deducted, in the normal value determination, in order to meet                   respect of damages for non-material harm and harm to
the need for a normal value determined in an appropriate and                    his career, on the basis both of substantial irregularities
not unreasonable manner. According to the applicant, the                        and of significant delay in the writing of the 2001 report
Commission was aware of the difference between the costs of                     in a particularly distressing period for the applicant;
production related to the production of para-cresol, on the
one hand, and the costs of production related specifically to             —     order the defendant to pay the costs in accordance with
the by-products (sodium sulfite and mixed phenol), on the                       Article 87(2) of the Rules of Procedure of the Court of
other hand. By extending the scope of the investigation to the                  First Instance.
two by-products and by taking into account the by-products
in the normal value determination, the Commission violated
the duty of due diligence.
                                                                          Pleas in law and main arguments
Furthermore, the applicant claims that the Council failed to
respect the duty of good administration and that it violated              The applicant claims, firstly, a breach of Articles 26 and 43 of
Article 2 of Regulation (EC) No 384/96 by failing to calculate            the Staff Regulations, of the general provisions for giving effect
a normal value for the like product only.                                 to Article 43 as adopted by the Bureau of the European
                                                                          Parliament on 8 March 1999 and of the instructions relating
                                                                          to the procedure for the writing of staff reports.
(1) Council Regulation (EC) No 384/96 of 22.12.1995 on protection
    against dumped imports from countries not members of the
    European Community (OJ L 56 of 6.3.1996, p. 1).                       He also pleads misuse of powers and infringement of general
                                                                          principles of law, such as respect for the rights of the defence,
                                                                          the principle of good administration, the principle of the
                                                                          protection of legitimate expectations and the duty to have
                                                                          regard for the welfare of officials, the principle of equal
                                                                          treatment and those general principles requiring the AIPN to
                                                                          take a decision only on the basis of legally permissible grounds,
                                                                          namely those which are pertinent and not tainted by a manifest
                                                                          error of assessment, fact or law.
Action brought on 19 December 2003 by Angel Angelidis
              against the European Parliament
                         (Case T-416/03)
                          (2004/C 59/41)
                                                                          Action brought on 22 December 2003 by Fédération
                                                                          Internationale des Maisons de l’Europe (FIME) against the
                   (Language of the case: French)                                  Commission of the European Communities
                                                                                (Case T-417/03)
An action against the European Parliament was brought before
the Court of First Instance of the European Communities                                             (2004/C 59/42)
on 19 December 2003 by Angel Angelidis, resident in
Luxembourg, represented by Eric Boigelot, lawyer.
                                                                                (Language of the case: French)
The applicant claims that the Court should:
                                                                          An action against the Commission of the European Communi-
—     annul the decision of the Secretary General of the                  ties was brought before the Court of First Instance of the
      European Parliament taken on 4 March 2003 definitively              European Communities on 22 December 2003 by Fédération
      adopting the applicant’s staff report for 2001;                     Internationale des Maisons de l’Europe, established in Saar-
                                                                          brücken (Germany), represented by Pierre Soler-Couteaux,
—     annul that staff report for 2001;                                   lawyer.
 ---pagebreak--- C 59/26                 EN                         Official Journal of the European Union                                            6.3.2004
The applicant claims that the Court should:                                Following an inquiry by the European Anti-Fraud Office
                                                                           (OLAF), which established that Maison de l’Europe Avignon
                                                                           Méditerranée had failed to complete certain projects for
—     annul the decision of 9 October 2003, in which the                   which it had received grants and that it had accordingly
      Commission applied set-off in two respects, on the                   misappropriated Community funds (1), the Commission took
      ground that the decision is wrong in law;                            the view that these grants fell to be repaid to it by the applicant.
—     rule that the European Commission is liable in respect of
      three wrongful acts or omissions:
                                                                           In support of its application for annulment, the applicant
                                                                           argues that the decision to apply set-off to the overpayment of
      —     by offending against the principles of legitimate              the subsidy for the year 2002 was in breach of the principles
            expectations and good faith;                                   of legitimate expectations and of good administration, in that
                                                                           the Commission had led the applicant to expect that it could
                                                                           cover losses arising through some of its projects by using its
      —     by continually failing thereafter to observe the               own funds and subscriptions from its members, without
            contractual time-limits for payment of the grants;             thereby rendering this expenditure ineligible.
      —     by failing to fulfil its obligation under Article 155 of
            the EC Treaty (now Article 211 EC) to ensure that              The applicant also claims that there has been a breach of the
            the measures taken by it are applied, and by failing           obligation to state reasons for the contested decision.
            to perform public functions or duties in that there
            have been material omissions on its part and an
            unlawful failure to fulfil its duty to act and to
            monitor the proper use of Community funds;
                                                                           It also argues that it is not required to repay to the Commission
                                                                           the sums allegedly misappropriated by Maison de l’Europe
—     rule that these omissions have caused loss to FIME for               Avignon Méditerranée, as it did not breach its duties of
      which the Commission is liable to make compensation;                 supervision and monitoring in any way. It accordingly submits
                                                                           that the contested decision has no legal basis and contains a
                                                                           manifest error of assessment.
—     rule that the applicant, FIME, has suffered non-pecuniary
      damage amounting to EUR 300 000 and order payment
      of that amount, together with interest for late payment;
                                                                           Lastly, the applicant alleges breach of the principle of good
—     rule that the applicant, FIME, has suffered pecuniary loss           administration and the duty to exercise care in that the
      amounting to EUR 210 000 and order payment of that                   Commission failed to give full consideration to the matter in
      amount, together with interest for late payment;                     question.
—     order the Commission to pay to it the sum of
      EUR 10 000 in respect of irrecoverable expenditure;                  In support of its claim for damages, the applicant claims that
                                                                           the Commission committed three errors which have caused
                                                                           the applicant unavoidable loss and damage, both pecuniary
—     order the Commission to pay the whole of the costs.                  and non-pecuniary. The failures for which the Commission is
                                                                           alleged to be responsible are breach of the principle of
                                                                           legitimate expectations already considered in the context of
                                                                           the application for annulment, failure to observe contractual
                                                                           time-limits for the payment of grants and inadequate scrutiny
                                                                           of the use of funds provided by the applicant.
Pleas in law and main arguments
                                                                           (1) See also Case T-43/03 Maison de l’Europe Avignon Méditerranée
By the contested decision, the Commission has applied set-off                  v Commission, published in OJ C 101, 26.4.2003, p. 39, and
in two respects to the operating grant due to the applicant for                Case T-100/03 Maison de l’Europe Avignon Méditerranée v
                                                                               Commission, published in OJ C 112, 10.5.2003, p. 46.
the year 2003, first, in deducting the overpayment for the year
2002, and, secondly, in recovering the grants paid, through
FIME, to one of its members, namely Maison de l’Europe
Avignon Méditerranée, in respect of projects that the latter had
failed to complete.


title: Case C-204/15: Order of the President of the Court of 15 January 2016 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Proceedings brought by Valsts ieņēmumu dienests; other party: SIA Latspas

text:
               18.4.2016

               EN

               Official Journal of the European Union

               C 136/23

         Order of the President of the Court of 15 January 2016 (request for a preliminary ruling from the Augstākā tiesa — Latvia) — Proceedings brought by Valsts ieņēmumu dienests; other party: SIA Latspas
   (Case C-204/15) (1)

   (2016/C 136/29)
   Language of the case: Latvian
   The President of the Court has ordered that the case be removed from the register.

      (1)  OJ C 228, 13.7.2015.


title: Case C-342/04 P: Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities

text:
               23.10.2004

               EN

               Official Journal of the European Union

               C 262/17

         Appeal brought on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer Jürgen Schmoldt against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities
   (Case C-342/04 P)
   (2004/C 262/30)
   An appeal against the order made on 25 May 2004 by the Third Chamber of the Court of First Instance of the European Communities in Case T-264/03 between (i) Jürgen Schmoldt, Kaefer Isoliertechnik GmbH & Co. KG and Hauptverband der Deutschen Bauindustrie e.V. and (ii) the Commission of the European Communities was brought before the Court of Justice of the European Communities on 10 August 2004 by the Hauptverband der Deutschen Bauindustrie e.V., Kaefer Isoliertechnik GmbH & Co. KG and Geschäftsführer [manager] Jürgen Schmoldt, represented by Prof. Hans-Peter Schneider, Rominteweg 3, D-30559 Hanover.
   The appellants claim that the Court should:

               —

               set aside the order and refer the case back to the Court of First Instance;

               —

               order the defendant to pay the costs of the dispute.

         Pleas in law and main arguments
   Contrary to the findings of the Court of First Instance, the appellants are individually concerned by the Commission decision contested in the main proceedings.
   The appellants put forward eight grounds of appeal.

               1)

               The contested decision proceeds on an incorrect factual basis: there is incontestably no report of 22 November 2002 of the ad hoc working party of the Standing Committee on Construction. The working party set up at the 55th meeting of the Standing Committee on 10/11 September 2002 under the objection procedure pursuant to Article 5(1) of Directive 89/106/EEC never met and/or adopted such a report.

               2)

               The third appellant did not bring an action ‘on a personal basis’: the third appellant is incontestably manager of the federal division for ‘heat, cold, acoustic and fire insulation’ of the first appellant, which is an association of the undertakings in Germaany using construction products in that field, and is employed as such with the first appellant. His official tasks include representing the first appellant and the undertakings affiliated to it in the context of the relevant national and European standardisation work.

               3)

               Community law lays down procedural guarantees for the appellants. The procedural guarantees relating to the Standing Committee on Construction that are contained in Article 5(1) of Directive 89/106/EEC and in the seventh recital in its preamble must also be for the benefit of those whom the Standing Committee professionally involves as an ad hoc working party in the opinion required under Article 5(1).

               4)

               In the procedure under Article 5(1) of Directive 89/106/EEC, the third appellant as member of the ad hoc working party of the Standing Committee on Construction represented not only the first appellant but, of course, also the second appellant as an affiliated undertaking. The second appellant is incontestably a member of the first appellant's federal division for ‘heat, cold, acoustic and fire insulation’.

               5)

               The second appellant made clear to the Court of First Instance, using four instances by way of example, that there was interference with ongoing contracts.

               6)

               The first appellant was — not that it would matter — a ‘negotiatior’.

               7)

               The first appellant was directly involved in the European standardisation work and the procedure pursuant to Article 5(1) of Directive 89/106/EEC.

               8)

               The Court's decision as to costs was inappropriate.


title: Reference for a preliminary ruling by the Pretura Circondariale di Roma, Sezione Distaccata di Tivoli by orders of that court of 3 July 1996 in criminal proceedings pending before it against Antonio Nardi, Alfredo Cipriani and Bartolomeo Terranova (Cases C-271/96, C-272/96 and C-273/96)

text:
 5 . 10 . 96             EN                 Official Journal of the European Communities                                    No C 294/7
goods under subheading 30 of the Common Customs Tariff                 criminal proceedings against him should take place in
or another subheading ?                                                another language where nationals of that State in the same
                                                                       circumstances enjoy such a right ?
 (') OJ No L 94 , 9 . 4 . 1986 , p . 9 .
Reference for a preliminary ruling by the Pretura                      Reference for a preliminary ruling from the Kammarrätten i
Circondariale di Roma, Sezione Distaccata di Tivoli by                 Sundsvall, by order of that court of 6 August 1996 in the
orders of that court of 3 July 1996 in criminal proceedings                  case of Anne Kuusijärvi v. Riksförsäkringsverket
pending before it against Antonio Nardi , Alfredo Cipriani                                         Case C-275 /96 )
                   and Bartolomeo Terranova
                                                                                ( 96/C 294/14 )
          ( Cases C-271 /96, C-272/96 and C-273/96 )
                             96/C 294/ 12
                                                                       Reference has been made to the Court of Justice of the
                                                                       European Communities by order of the Kammarätten i
Reference has been made to the Court of Justice of the                 Sundsvall ( Administrative Court of Appeal, Sundsvall ), of
European Communities by orders of the Pretura                          6 August 1996 , which was received at the Court Registry on
Circondariale di Roma, Sezione Distaccata di Tivoli ( Rome             14 August 1996 , for a preliminary ruling in the case of Anne
District Magistrate's Court, Tivoli Division ) of 3 July 1996 ,        Kuusijärvi v. Riksförsäkringsverket on the following
which were received at the Court Registry on 12 August                 questions :
 1996 , for a preliminary ruling in criminal proceedings
pending before it against Antonio Nardi , Alfredo Cipriani
and Bartolomeo Terranova .                                             1 . Does Regulation ( EEC ) No 1408/71 (') apply at all to a
                                                                            person who, before the Regulation became applicable in
                                                                            Sweden, moved from Finland to Sweden and took up
The questions referred by the Pretura Circondariale di                      employment here, but who was not in employment in
Roma , Sezione Distaccata di Tivoli to the Court of Justice                 Sweden when the Regulation came into force in Sweden
for a preliminary ruling are identical with those in Case                   and did not come here as an unemployed person after
C-58/95 (1).                                                                the Regulation became applicable in Sweden, but only
                                                                            stayed here at that time as an unemployed person after a
(') OJ No C 119 , 13 . 5 . 1995 , p . 6 .                                   previous period of employment and then drew Swedish
                                                                            unemployment benefit. That is to say, can a person in
                                                                            that situation claim that, after 1 January 1994, on the
                                                                            basis of Regulation ( EEC ) No 1408/71 , he or she is
                                                                            covered by Swedish legislation as regards entitlement to
                                                                            Swedish social security benefits in the form of parental
                                                                            benefit ?
References for a preliminary ruling by the Pretura
Circondariale di Bolzano, Silandro Division, by orders of
that court of 2 August 1996 in the criminal proceedings                If that question is answered in the affirmative, the following
pending before that court against Horst Otto Bickel and                questions also need to be answered :
                             Ulrich Franz
                (Cases C-274/96a and C-274/96 )                        2 . Is Article 13 ( 2 ) ( f) of Regulation ( EEC ) No 1408/71 , in
                           ( 96/C 294/ 13                                   conjunction with Article 10 ( b ) of Regulation
                                                                            No 574/72 ( 2 ), to be understood as meaning that a
Reference has been made to the Court of Justice of the                      Member State is not precluded from introducing a
European Communities by orders of the Pretura                               condition of residence in its territory in order for a
Circondariale ( District Magistrates ' Court ), Bolzano,                    person who has ceased working there to remain covered
Silandro Division, of 2 August 1996 , which was received at                 by that country's legislation as regards cash maternity
                                                                            benefits ?
the Court Registry on 12 August 1996 , for a preliminary
ruling in the criminal proceedings pending before that court
against Horst Otto Bickel and Ulrich Franz on the following            3 . Is Article 22 of Regulation ( EEC ) No 1408/71 to be
question :                                                                  understood as meaning that, if a person begins to draw
                                                                            cash maternity benefits in a competent State, that person
Do the principles of non-discrimination within the meaning                  retains entitlement, on the conditions applying
of the first paragraph of Article 6 , the right of citizens of the          according to that Article , to those cash benefits when
Union to move and reside within the meaning of Article 8a                   moving to another Member State only on condition that
and the freedom to provide services within the meaning of                   the person concerned fulfils all the provisions of the
Article 59 of the Treaty mean that a citizen of the Union who               legislation applied by the competent country, that is to
is a national of a Member State and resides in another                      say including the requirement, laid down in those
Member State must be granted the right to require that                      provisions , that the person concerned must be resident


title: Case T-410/04: Order of the Court of First Instance of  27 October 2005  — Italy v Commission

text:
               24.12.2005

               EN

               Official Journal of the European Union

               C 330/25

         Order of the Court of First Instance of 27 October 2005 — Italy v Commission
   (Case T-410/04) (1)

   (2005/C 330/62)

      Language of the case: Italian

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

      (1)  OJ C 19, 22.1.2005.


title: Case T-188/03: Action brought on 27 May 2003 by Joëlle Hivonnet against Council of the European Union

text:
2.8.2003              EN                           Official Journal of the European Union                                           C 184/45
Mark or sign cited in oppo-      Figurative mark ‘GESINMAR’                Pleas in law and main arguments
sition:                          (mark          with         priority
                                                                           Applicant for Community          The Applicant
                                 no 1975912, for goods in
                                                                           trade mark:
                                 Class 36)
                                                                           Community       trade   mark     The trade name ‘ENZO FUSCO’
Decision of the Opposition       Upholding of the opposition for           sought:                          — Application for registration
Division:                        all services in Class 36                                                   No 726735, requested for pro-
                                                                                ducts in Classes 3, 9, 18, 24
                                                                                and 25 (products which are tra-
                                                                                ditionally the subject of trade
                                                                                mark registration by so-called
Decision of the Board of         Dismissal of the appeal                                                    creators of taste and fashion)
Appeal:
                                                                           Proprietor of mark or sign       Antonio Fusco International
                                                                           cited in the opposition pro-     S.A., Luxembourg
Pleas in law:                    Misapplication of Article 8(1)(b)         ceedings:
                                 of Regulation (EC) No 40/94
                                 (likelihood of confusion)
                                                                           Mark or sign cited in op-        Community mark ‘ANTONIO
                                                                           position:                        FUSCO’               (Registration
                                                                                No 654059) for products sub-
                                                                                stantially identical to those
                                                                                claimed by the Applicant
Action brought on 27 May 2003 by Vincenzo Fusco
against the Office for Harmonisation in the Internal
          Market (Trade Marks and Designs) (OHIM)                          Decision of the Opposition       Opposition upheld and applica-
                                                                           Division:                        tion for registration dismissed
                         (Case T-185/03)
                         (2003/C 184/99)                                   Decision of the Board of         Dismissal of the appeal.
                                                                           Appeal:
                   (Language of the case: Italian)
                                                                           Pleas in law:                    Misapplication of Article 8(1)(b)
An action against the Office for Harmonisation in the Internal                                              of Regulation (EC) No 40/94
Market (Trade Marks and Designs) (OHIM) was brought before                                                  (Risk of confusion).
the Court of First Instance of the European Communities on
27 May 2003 by Vincenzo Fusco, represented by B. Saguatti,
lawyers.
The other party to the proceedings before the Board of Appeal
was Antonio Fusco International S.A.                                       Action brought on 27 May 2003 by Joëlle Hivonnet
                                                                                against Council of the European Union
The applicant claims:
                                                                                (Case T-188/03)
—     as a principal claim, that the Court should annul the                                        (2003/C 184/100)
      contested decisions of the Board of Appeal holding that
      the marks Antonio Fusco and Enzo Fusco were liable to                                   (Language of the case: French)
      be confused with each other;
—     in the alternative, should the Court hold that the marks             An action against the Council of the European Union was
      Antonio Fusco and Enzo Fusco are liable to confusion,                brought before the Court of First Instance of the European
      that the Court should specify the precise territorial scope          Communities on 27 May 2003 by Joëlle Hivonnet, domiciled
      of the decision;                                                     in New York (United States), represented by Georges Vander-
—     as a principal claim, a declaration that, although the               sanden and Laure Levi, lawyers.
      opposition is based on an earlier Community trade                    The applicant claims that the Court should:
      mark, the transformation procedure is not precluded save
      by reference to the territory in respect of which the                —     annul the decision of the appointing authority of 23 July
      existence of a risk of confusion may be recognised;                        2002 rejecting the applicant's request for the grant of an
                                                                                education allowance for her daughter Eponine for the
—     that the opponent should be ordered to pay the costs, or,                  school years 1999-2000 and 2000-2001, and only
      in the alternative, given the delicacy and complexity of                   granting an education allowance for the school year
      the questions under consideration, that a composition of                   2001-2002 on an exceptional basis on the ground of
      costs should be established.                                               educational continuity;
 ---pagebreak--- C 184/46               EN                         Official Journal of the European Union                                           2.8.2003
—     annul the decision of the appointing authority of                   Action brought on 2 June 2003 by ASM Brescia S.p.A.
      17 February 2003, notified on 24 February 2003,                          against Commission of the European Communities
      dismissing the applicant's complaint of 9 October 2002;
                                                                                (Case T-189/03)
—     restore all the applicant's pecuniary rights;
                                                                                (2003/C 184/101)
—     order the defendant to pay default interest on sums owed
      to the applicant as education allowance for the school
      years 1999-2000 and 2000-2001 and 2001-2002, that                                      (Language of the case: Italian)
      interest to run for the first two school years from 17 June
      2002 until the sums are paid in full; for the school year
      2001-2002 interest to run from 17 June 2002 to
      13 August 2002 for the first and second terms and                   An action against the Commission of the European Commu-
      from 8 March 2002 to 7 May 2002 for the third term.                 nities was brought before the Court of First Instance of the
      The rate of default interest to apply must be calculated on         European Communities on 2 June 2003 by ASM Brescia S.p.
      the basis of the rate set by the European Central Bank for          A., represented by Fausto Capelli, Francesca Vitale and Massi-
      capital refinancing operations in force during the period           miliano Valcada, lawyers.
      concerned, increased by two percentage points;
                                                                          The applicant claims that the Court should:
—     order the defendant to pay one euro as compensation for
      the non-material damage suffered by the applicant;                  —     in substance, annul Article 2 of Commission Decision
                                                                                2003/193/EC of 5 June 2002, published in OJ 2003
                                                                                L 77, by which the European Commission declared
—     order the defendant to pay all the costs.
                                                                                incompatible with the common market the measures
                                                                                adopted by the Italian Republic under Article 2(70) of
                                                                                Law No 549 of 28 December 1995 and Article 66(14) of
                                                                                Decree Law No 331 of 30 August 1993, converted into
                                                                                Law No 427 of 29 October 1993 granting exemption
                                                                                from income tax to joint stock companies with majority
                                                                                public shareholdings set up in accordance with Law
Pleas in law and main arguments                                                 No 142 of 8 June 1990;
                                                                          —     in substance, in the alternative, annul Article 3 of
The applicant's daughter was born in 1996 and began to                          Commission Decision 2003/193/EC of 5 June 2002,
attend the French Lycée in Brussels in September 1999.                          published in OJ 2003 L 11, by which the European
                                                                                Commission ordered the Italian Republic to recover
                                                                                granted to, inter alios, the applicant;
In support of her application the applicant relies, first, on
breach of Article 3 of Annex VII to the Staff Regulations,                —     order the European Commission to pay the costs.
breach of Article 15 of Annex X to the Staff Regulations and
the Council Decision of 19 December 1998 laying down
general implementing provisions in respect of Annex X to the
Staff Regulations. She also complains that the Council took a
decision on grounds that are wrong in fact and law. The
applicant claims that despite the clear terms of the national             Pleas in law and main arguments
rules applicable to schooling and the replies given by the
French Government on those rules, the Council considered
that her daughter's schooling was not primary education.                  The applicant in the present action, the former azienda muni-
                                                                          cipalizzata (municipal undertaking) of Brescia is contesting the
                                                                          decision of the Commission of 5 June 2002 (1), in which it
The applicant further alleges that the principle of non-discri-           considered State aid the three-year exemption (1997 to 1999)
mination was infringed in that children registered at a French            from income tax, provided for by Italian legislation for former
educational establishment are not treated in the same way as              municipal undertakings which became companies with a
children registered in a Luxembourg, British or Dutch educa-              majority public shareholding and accordingly ordered recovery
tional establishment.                                                     of the appropriate amounts.
                                                                          In support of its claims, the applicant alleges the following:
Lastly the applicant alleges that the requirement to state
reasons and the fundamental right to a hearing have been
infringed. The applicant states that the Council did not take             —     in the contested decision, the defendant appears to have
account of the opinion of the French authorities and did not                    conducted its analysis while completely disregarding the
explain why they did not do so.                                                 special nature of the public utilities sector, namely that it
                                                                                ensures public provision of certain minimum services
                                                                                deemed to be of fundamental importance.


title: Case C-258/07: Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden

text:
               4.8.2007

               EN

               Official Journal of the European Union

               C 183/22

         Action brought on 31 May 2007 — Commission of the European Communities v Kingdom of Sweden
   (Case C-258/07)
   (2007/C 183/38)
   Language of the case: Swedish
   Parties

      Applicants: Commission of the European Communities (represented by: D. Kukovec and K. Nyberg, acting as Agents)

      Defendants: Kingdom of Sweden
   Form of order sought

               —

               Declare that, by failing to adopt the laws, regulations and administrative provisions necessary to comply with Directive 2004/18/EC (1) of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts or in any event by failing to inform the Commission thereof, the Kingdom of Sweden has failed to fulfil its obligations under that directive;

               —

               order the Kingdom of Sweden to pay the costs.

         Pleas in law and main arguments
   The period for implementation of the Directive expired on 31 January 2006.

      (1)  OJ L 134, 30.4.2004, p. 114.


title: JUDGMENT OF THE COURT (Fifth Chamber) of 1 October 1998 in Case C-209/96: United Kingdom of Great Britain and Northern Ireland v. Commission of the European Communities (EAGGF - Clearance of accounts - 1992 and 1993 - Beef and veal)

text:
C 358/2              EN                 Official Journal of the European Communities                                     21.11.98
Commission Decision 93/659/EC of 25 November 1993                  1. Dismisses the application;
on the clearance of the accounts presented by the Member
States in respect of the expenditure for 1990 of the
European Agricultural Guidance and Guarantee Fund
                                                                   2. Orders the United Kingdom of Great Britain and
(EAGGF), Guarantee Section (OJ L 301, 8.12.1993, p. 13)
                                                                        Northern Ireland to pay the costs.
Ð the Court (Sixth Chamber), composed of: H.
Ragnemalm, President of the Chamber, R. Schintgen, G. F.
Mancini (Rapporteur), P. J. G. Kapteyn and G. Hirsch,              (1) OJ C 269, 14.9.1996.
Judges; S. Alber, Advocate-General; R. Grass, Registrar,
has given a judgment on 1 October 1998, in which it:
1. Dismisses the action;
                                                                                JUDGMENT OF THE COURT
2. Orders the Kingdom of the Netherlands to pay the                                       (Fifth Chamber)
    costs.                                                                               of 1 October 1998
                                                                   in Case C-232/96: French Republic v. Commission of the
(1) OJ C 76, 12.3.1994.                                                              European Communities (1)
                                                                   (EAGGF Ð Clearance of accounts Ð 1992 and 1993 Ð
                                                                                Beef and veal Ð Cereals)
                                                                                (98/C 358/04)
              JUDGMENT OF THE COURT                                               (Language of the case: French)
                        (Fifth Chamber)
                     of 1 October 1998
                                                                     (Provisional translation; the definitive translation will be
in Case C-209/96: United Kingdom of Great Britain and                       published in the European Court Reports)
Northern Ireland v. Commission of the European
                        Communities (1)
(EAGGF Ð Clearance of accounts Ð 1992 and 1993 Ð                   In Case 232/96: French Republic (Agents: C. de Salins and
                         Beef and veal)                            F. Pascal) v. Commission of the European Communities
                                                                   (Agent: X. Lewis) Ð application for the annulment in part
                         (98/C 358/03)                             of Commission Decision 96/311/EC of 10 April 1996 on
                                                                   the clearance of the accounts presented by the Member
                                                                   States in respect of the expenditure for 1992 of the
                                                                   Guarantee Section of the European Agricultural Guidance
               (Language of the case: English)                     and Guarantee Fund (EAGGF) and in respect of certain
                                                                   expenditure for 1993 (OJ L 117, 14.5.1996, p. 19) Ð the
                                                                   Court (Fifth Chamber), composed of: C. Gulmann,
                                                                   President of the Chamber, M. Wathelet (Rapporteur), J. C.
In Case C-209/96: United Kingdom of Great Britain and              Moitinho de Almeida, J.-P. Puissochet and L. Sevón,
Northern Ireland (Agent: J. E. Collins, assisted by G.             Judges; S. Alber, Advocate-General; L. Hewlett,
Barling and H. Davies) v. Commission of the European               Administrator, for the Registrar, has given a judgment on
Communities (Agent: J. Macdonald Flett) Ð application              1 October 1998, in which it:
for the annulment in part of Commission Decision 96/311/
EC of 10 April 1996 on the clearance of the accounts
presented by the Member States in respect of the
                                                                   1. Dismisses the application;
expenditure for 1992 of the Guarantee Section of the
European Agricultural Guidance and Guarantee Fund
(EAGGF) and in respect of certain expenditure for 1993
(OJ L 117, 14.5.1996, p. 19) Ð the Court (Fifth                    2. Orders the French Republic to pay the costs.
Chamber), composed of: C. Gulmann, President of the
Chamber, M. Wathelet (Rapporteur), J. C. Moitinho de
Almeida, J.-P. Puissochet and L. Sevón, Judges; S. Alber,          (1) OJ C 269, 14.9.1996.
Advocate-General; L. Hewlett, Administrator, for the
Registrar, has given a judgment on 1 October 1998, in
which it:


title: Case C-393/01: Action brought on 8 October 2001 by the French Republic against the Commission of the European Communities

text:
8.12.2001              EN                   Official Journal of the European Communities                                        C 348/17
The applicant claims that the Court should:                                  Council of 16 February 1998 concerning the placing of
                                                                             biocidal products on the market (1) the Portuguese Repub-
—     declare that, by failing to adopt and bring into force                 lic has failed to fulfil its obligations under Articles 34(1)
      within the prescribed period the laws, regulations and                 of that Directive,
      administrative provisions necessary to comply with
      Council Directive 97/43/Euratom of 30 June 1997 on               —     in the alternative, declare that, by failing to inform
      health protection of individuals against the dangers of                the Commission immediately of such measures, the
      ionising radiation in relation to medical exposure, and                Portuguese Republic failed to fulfil its obligations under
      repealing Directive 84/466/Euratom (1), the Portuguese                 that Directive,
      Republic has failed to fulfil its obligations under
      Articles 14 of that Directive,                                   —     order the Portuguese Republic to pay the costs.
—     in the alternative, declare that, by failing to inform
      the Commission immediately of such measures, the
      Portuguese Republic failed to fulfil its obligations under       Pleas in law and main arguments
      that Directive,
—     order the Portuguese Republic to pay the costs.                  The mandatory nature of the provisions of the third paragraph
                                                                       of Article 249 and the first paragraph of Article 10 of the EC
                                                                       Treaty requires Member States to adopt the measures necessary
                                                                       to transpose directives addressed to them into their domestic
Pleas in law and main arguments                                        law before the expiry of the period prescribed for doing so.
                                                                       That period expired on 14 May 2000 without the Portuguese
                                                                       Republic having brought into force the necessary provisions
The pleas in law and main arguments are similar to those put           to transpose Directive 98/8/EC into its domestic law.
forward in Case C-389/01.
                                                                       (1) OJ L 123, 24.4.1998, p. 1.
( 1) OJ L 180, 9.7.1997, p. 22.
                                                                       Action brought on 8 October 2001 by the French Repub-
Action brought on 9 October 2001 by the Commission                     lic against the Commission of the European Communities
of the European Communities against the Portuguese
                              Republic                                                          (Case C-393/01)
                         (Case C-391/01)                                                        (2001/C 348/32)
                         (2001/C 348/31)
                                                                       An action against the Commission of the European Communi-
                                                                       ties was brought before the Court of Justice of the European
An action against the Portuguese Republic was brought                  Communities on 8 October 2001 by the French Republic,
before the Court of Justice of the European Communities                represented by G. de Bergues and R. Loosli-Surrans, acting as
on 9 October 2001 by the Commission of the European                    agents, with an address for service in Luxembourg.
Communities, represented by António Caeiros, acting as
Agent, with an address for service in Luxembourg at the office
of Luis Escobar Guerrero, Wagner Centre.                               The French Republic claims that the Court should:
                                                                       —     annul Commission Decision 2001/577/EC of 25 July
The applicant claims that the Court should:                                  2001 setting the date on which dispatch from Portugal
                                                                             of bovine products under the date-based export scheme
—     declare that, by failing to adopt and bring into force                 may commence by virtue of Article 22(2) of Decision
      within the prescribed period the laws, regulations and                 2001/376/EC (1),
      administrative provisions necessary to comply with
      Directive 98/8/EC of the European Parliament and of the          —     order the Commission to pay the costs.
 ---pagebreak--- C 348/18                EN                    Official Journal of the European Communities                                     8.12.2001
Pleas in law and main arguments                                          Action brought on 15 October 2001 by the Federal
                                                                         Republic of Germany against the European Parliament
                                                                                and the Council of the European Union
—     Infringement of the conditions laid down by Decision
      2001/376/EC (2), the Commission adopted Decision                                           (Case C-406/01)
      2001/577/EC without having carried out all the inspec-
      tions prescribed by Article 21 of Decision 2001/376/EC.
      The last inspection report of the Food and Veterinary                                      (2001/C 348/33)
      Office communicated to the French Republic before the
      decision of 25 July 2001 was the report of 25 to 27 June
      2001 in its final version DG(SANCO)3345/2001, which
      does not examine the development of the incidence of
      the disease and the effective enforcement of the relevant          An action against the European Parliament and the Council of
      national measures and does not contain a risk assessment           the European Union was brought before the Court of Justice
      demonstrating whether appropriate measures to manage               of the European Communities on 15 October 2001 by the
      any risk have been taken. It is apparent from the                  Federal Republic of Germany, represented by Wolf-Dieter
      conclusions of that report that, at the time when the              Plessing, Ministerialrat, Moritz Lumma, Oberregierungsrat,
      inspection report was submitted, the desired legislation           both of the Federal Ministry of Finance, 108 Graurheindorfer
      was not yet in force and certain Food and Veterinary               Straße, D-53117 Bonn, and Jochim Sedemund, Rechtsanwalt,
      Office inspections were still awaited in order to avoid the        of Freshfields Bruckhaus Deringer, 1 Potsdamer Platz,
      risk of ‘cross-contamination’ which have been revealed in          D-10785 Berlin.
      other countries. The Portuguese decree-law which sets
      out the DBES was not approved until 12 July 2001, that
      is to say two weeks before the lifting of the ban fixed for
      1 August 2001, and the DBES application manual was to              The applicant claims that the Court should:
      be submitted to the Minister for Agriculture on 14 July.
      The French Government therefore considers that ‘effective
                                                                         1.    Annul Article 3(1) in conjunction with Article 3(2) of
      enforcement of the relevant national measures’, within
                                                                               Directive 2001/37/EC of the European Parliament and of
      the meaning of Article 21(2) was not ensured at the time
                                                                               the Council of 5 June 2001 on the approximation of the
      when the decision setting the date for the lifting of the
                                                                               laws, regulations and administrative provisions of the
      ban was adopted.
                                                                               Member States concerning the manufacture, presentation
                                                                               and sale of tobacco products (1), in so far as those
      Nor could the operational effectiveness of the procedures                provisions prohibit the manufacture of cigarettes for
      set up be checked, either in terms of traceability of bovine             export from the European Community to non-member
      products or in terms of tests on cattle, on the date on                  countries;
      which the contested decision was adopted any more than
      it could on the date set for the partial lifting of the ban.       2.    Order the defendants to pay the costs.
      Accordingly, the Commission infringed Article 22 of
      Decision 2001/376/EC.
—     Infringement of the precautionary principle: while                 Pleas in law and main arguments
      Article 174 EC falls within the framework of Community
      environmental policy, Community case-law does not                  —     Article 95 EC is not an adequate legal basis for the
      confine the precautionary principle to that field alone                  contested prohibition of export. Approximation
      and extends it to public health objectives. The nature and               measures under Article 95 EC must have as their subject
      seriousness of the risks relating to BSE warrant full                    the elimination of differences between the legal systems
      compliance with the precautionary principle.                             of the Member States with the aim of eliminating
                                                                               distortions of competition in relations between the
                                                                               Member States or preventing them from occurring.
                                                                               Measures which concern exports to non-member
                                                                               countries are not covered by Article 95 EC. The internal
(1) OJ L 203, 28.7.2001, p. 27.                                                market aim of removing barriers to trade which result
(2) Commission Decision 2001/376/EC concerning measures made                   from differing national rules is achieved already by
    necessary by the occurrence of bovine spongiform encephalopa-              the prohibition of marketing. That a prohibition of
    thy in Portugal and implementing a date-based export scheme (OJ            manufacture is not necessary for that purpose is shown
    L 132, 15.5.2001, p. 17).
                                                                               by the fact that all comparable harmonisation directives
                                                                               (for example, in the field of regulating additives to
                                                                               foodstuffs) confine themselves to prohibitions of market-
                                                                               ing and do not lay down prohibition of manufacture. The
                                                                               prohibition of manufacture in the contested Directive
                                                                               thus in fact pursues exclusively the aim of the protection


title: Case C-246/16: Request for a preliminary ruling from the Commissione tributaria provinciale di Siracusa (Italy) lodged on 28 April 2016 — Enzo di Maura v Agenzia delle Entrate — Direzione Provinciale di Siracusa

text:
               18.7.2016

               EN

               Official Journal of the European Union

               C 260/26

         Request for a preliminary ruling from the Commissione tributaria provinciale di Siracusa (Italy) lodged on 28 April 2016 — Enzo di Maura v Agenzia delle Entrate — Direzione Provinciale di Siracusa
   (Case C-246/16)
   (2016/C 260/33)
   Language of the case: Italian

      Referring court

   Commissione tributaria provinciale di Siracusa

      Parties to the main proceedings

      Applicant: Enzo di Maura

      Defendant: Agenzia delle Entrate — Direzione Provinciale di Siracusa

      Questions referred

               1.

               Having regard to Article 11(C)(1) and the second sentence of Article 20(1)(b) of Directive 77/388/EEC (1) in relation to the downward adjustment of the taxable amount and the adjustment of the VAT charged on taxable transactions in cases where the consideration agreed by the parties remains totally or partially unpaid, is it compatible with the principles of proportionality and effectiveness guaranteed by the TFEU, and the principle of neutrality that governs the application of VAT, to impose limits that make it impossible or excessively costly — in terms of time too, in connection with the unforeseeable duration of an insolvency procedure — for the taxable person to recover the tax on the consideration which remains totally or partially unpaid?

               2.

               If the answer to the first question is in the affirmative, is it compatible with the principles set out above that a provision — such as Article 26(2) of Presidential Decree No 633/1972, in the version in force before the amendments introduced by Article 1(126) and (127) of Law No 208 of 28 December 2015 — makes the right to recover the tax contingent on proof that insolvency procedures have previously been unsuccessfully conducted, that is to say, in accordance with case-law and the practice of the tax authority of the EU Member State, following definitive failure to distribute the assets, or, failing that, a final decision closing the insolvency procedure, even where such procedures may reasonably be deemed to be uneconomic because of the amount of the claim, the prospects of recovery and the costs of the insolvency procedures and given that, in any event, those conditions could apply years after the date of opening of the insolvency?

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


title: Case C-366/99: Reference for a preliminary ruling from the French Conseil d'État (Council of State), by order of that court of 28 July 1999 in the case of Joseph Griesmar v Minister for Economic Affairs, Finance and Industry and Minister for the Civil Service, State Reform and Decentralisation

text:
C 366/16               EN                    Official Journal of the European Communities                                     18.12.1999
Pleas in law and main arguments                                         Reference for a preliminary ruling from the French
                                                                        Conseil d’État (Council of State), by order of that court of
                                                                        28 July 1999 in the case of Joseph Griesmar v Minister
                                                                        for Economic Affairs, Finance and Industry and Minister
Portugal is appealing the decision to extend the restriction on
                                                                         for the Civil Service, State Reform and Decentralisation
exports, laid down in Article 4 of Decision 98/653/EC, to
1 February 2000, adopted by the Commission by Decision
99/517/EC, on the following grounds:                                                              (Case C-366/99)
                                                                                (1999/C 366/25)
— Lack of statement of reasons or facts: the Commission was
     required to show that the extension of the period was
     justified and that the facts justify a derogation from             Reference has been made to the Court of Justice of the
     Article 28 of the EC Treaty. In view of the findings of the        European Communities by an order of the French Conseil
     mission of 14 to 18 June 1999, the Commission failed to            d’État, of 28 July 1999, which was received at the Court
     do so.                                                             Registry on 4 October 1999, for a preliminary ruling in the
                                                                        case of Joseph Griesmar v Minister for Economic Affairs,
                                                                        Finance and Industry and Minister for the Civil Service, State
— The decision is contrary to the Animal Health Code of the             Reform and Decentralisation on the following questions. The
     International Office of Epizootic Diseases: the Commission         French Council of State asks the Court of Justice to rule on the
     disregarded the Code in decisions 98/653/EC and                    following questions:
     99/517/EC. Contrary to Article 3.2.13.8 Portuguese
     exports of meat and meat products are totally prohibited           1. Are the pensions provided by the French retirement
     until 1 February 2000 despite the fact that Portugal, which             pension scheme for civil servants pay within the meaning
     falls within the category of countries with a low incidence             of Article 119 of the Treaty of Rome (now Article 141 of
     of BSE, observed the conditions laid down in                            the Treaty establishing the European Community)?
     Article 3.2.13.8.
                                                                             If so, in the light of the requirements of paragraph 3 of
                                                                             Article 6 of the agreement annexed to Protocol No 14 on
— Breach of essential procedural requirements and of the                     social policy, is the principle of equal pay breached by the
     principle of sound administrative practice: the Standing                provisions of Article L. 12(b) of the civil and military
     Veterinary Committee did not have access to all the                     retirement pensions code?
     relevant and recent information (in particular the ‘draft’
     findings of the mission of the Food and Veterinary Office          2. If Article 119 of the Treaty of Rome is not applicable, do
     (FVO-DG XXIV) of 14 to 18 June 1999 and Portugal’s                      the provisions of Directive 79/7/EEC of 19 December
     comments) which were made available to the Commission                   1978 (1) prevent France from maintaining in force pro-
     and/or should have been made available before the Stand-                visions such as Article L. 12(b) of the civil and military
     ing Veterinary Committee was consulted and before the                   retirement pensions code?
     decision was adopted to extend the period prescribed by
     Article 4 of Decision 98/653/EC.                                   (1) On the progressive implementation of the principle of equal
                                                                            treatment for men and women in matters of social security (OJ
                                                                            1979 L 6 of 10.1.1979, p. 24).
— Breach of the principle of proportionality: extension of the
     period prescribed in Article 4 of Decision 98/653/EC
     exceeds the limits of what is appropriate and necessary in
     view of the grounds and objectives of Decision 98/653/EC,
     regard being had to the situation in Portugal, the level of
     its exports of beef and meat products, and the policy of
     the Commission and the Community vis-à-vis the United
     Kingdom and Switzerland.                                           Reference for a preliminary ruling by the Landesgericht
                                                                        Korneuburg (Austria) by order of that court of 1 Septemb-
                                                                        er 1999 in the case of La Chemise Lacoste S.A. v Coalle
                                                                                FA-93
(1) Commission Decision 99/517/EC of July 1999 amending Decision
    98/653/EC concerning emergency measures made necessary by                                     (Case C-368/99)
    the occurrence of bovine spongiform encephalopathy in Portugal
    — OJ 1999 L 197, p. 45.
 2
                                                                                (1999/C 366/26)
( ) Decision 98/653/EC concerning emergency measures made
    necessary by the occurrence of bovine spongiform encephalopa-
    thy in Portugal — OJ 1998 L 311, p. 23.                             Reference has been made to the Court of Justice of the
                                                                        European Communities by order of the Landesgericht
                                                                        (Regional Court) Korneuburg (Austria) of 1 September 1999,
                                                                        received at the Court Registry on 4 October 1999, for a
                                                                        preliminary ruling in the case of La Chemise Lacoste S.A. v
                                                                        Coalle FA-93 on the following question:


title: Case F-27/14: Judgment of the Civil Service Tribunal (Second Chamber) of 18 March 2015 — DK v EEAS (Civil service — EEAS staff — Official — Discipliary proceedings — Removal from post without reduction of entitlement to a pension — Article 25 of Annex IX to the Staff Regulations — Pending criminal proceedings — The facts before the appointing authority and the court hearing the criminal proceedings the same)

text:
               4.5.2015

               EN

               Official Journal of the European Union

               C 146/45

         Judgment of the Civil Service Tribunal (Second Chamber) of 18 March 2015 — DK v EEAS
   (Case F-27/14) (1)

   ((Civil service - EEAS staff - Official - Discipliary proceedings - Removal from post without reduction of entitlement to a pension - Article 25 of Annex IX to the Staff Regulations - Pending criminal proceedings - The facts before the appointing authority and the court hearing the criminal proceedings the same))
   (2015/C 146/60)
   Language of the case: French

      Parties

      Applicant: DK (represented by: S. Orlandi, lawyer)

      Defendant: European External Action Service (EEAS) (represented by: S. Marquardt and M. Silva, Agents)

      Re:

   Application for annulment of the decision by which the applicant was removed from his post without reduction of his entitlement to a pension, with effect from 1 February 2014, following disciplinary proceedings taken after the indictment of the applicant by the national authorities for European public procurement fraud, forgery and use of forgery, money laundering and corruption.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of 16 January 2014 by which the European External Action Service removed DK from his post without reduction of his entitlement to a pension;

               2.

               Orders the European External Action Service to bear its own costs and to pay all the costs incurred by DK.

      (1)  OJ C 184, 16.6.2014, p. 43.


title: Judgment of the Court (Second Chamber) of 7 July 2005 in Case C-353/03 (Reference for a preliminary ruling Court of Appeal): Société des produits Nestlé SA v Mars UK Ltd (Trade marks — Directive 89/104/EEC — Absence of distinctive character — Distinctive character acquired through use — Use as part of or in conjunction with a registered trade mark)

text:
               17.9.2005

               EN

               Official Journal of the European Union

               C 229/3

      JUDGMENT OF THE COURT

   (Second Chamber)
   of 7 July 2005
   in Case C-353/03 (Reference for a preliminary ruling Court of Appeal): Société des produits Nestlé SA v Mars UK Ltd (1)

   (Trade marks - Directive 89/104/EEC - Absence of distinctive character - Distinctive character acquired through use - Use as part of or in conjunction with a registered trade mark)
   (2005/C 229/05)
   Language of the case: English
   In Case C-353/03, reference for a preliminary ruling under Article 234 EC, by the Court of Appeal (England and Wales) (Civil Division) (United Kingdom), made by Decision of 25 July 2003, received at the Court on 18 August 2003, in the proceedings between Société des produits Nestlé SA and Mars UK Ltd, the Court: (Second Chamber) composed of C. W. A. Timmermans, President of the Chamber, R. Silva de Lapuerta, C. Gulmann (Rapporteur), P. Kūris and G. Arestis, Judges; J. Kokott, Advocate General, L. Hewlett, Principal Administrator for the Registrar, gave a judgment on 7 July 2005, the operative part of which is as follows:
   The distinctive character of a mark referred to in Article 3(3) of First Council Directive 89/104/EEC of 21 December 1988 to approximate the laws of the Member States relating to trade marks may be acquired in consequence of the use of that mark as part of or in conjunction with a registered trade mark.

      (1)  OJ C 251 of 18.10.2003.


title: Case T-190/04: Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle) (Community trade mark — Shape of a frosted white bottle — Absolute ground of refusal — Article 7(1)(b) of Regulation (EC) No 40/94 — Lack of distinctive character — Infringement of the rights of the defence — Article 73 of Regulation No 40/94)

text:
               18.11.2006

               EN

               Official Journal of the European Union

               C 281/32

         Judgment of the Court of First Instance of 4 October 2006 — Freixenet v OHIM (Shape of a frosted white bottle)
   (Case T-190/04) (1)

   (Community trade mark - Shape of a frosted white bottle - Absolute ground of refusal - Article 7(1)(b) of Regulation (EC) No 40/94 - Lack of distinctive character - Infringement of the rights of the defence - Article 73 of Regulation No 40/94)
   (2006/C 281/54)
   Language of the case: French
   Parties

      Applicant: Freixenet, SA (Sant Sadurní d'Anoia, Spain) (represented by: F. de Visscher, E. Cornu, É. De Gryse and D. Moreau, lawyers)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: I. de Medrano Caballero, Agent)
   Re:
   Action for annulment of the decision of the Fourth Board of Appeal of OHIM of 11 February 2004 (Case R 97/2001-4) concerning registration of a mark in the form of a frosted white bottle as a Community trade mark
   Operative part of the judgment
   The Court:

               1.

               Annuls the decision of the Fourth Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) of 11 February 2004 (Case R 97/2001-4);

               2.

               Dismisses the remainder of the action;

               3.

               Orders OHIM to bear its own costs and to pay those of the applicant.

      (1)  OJ C 201, 7.8.2004.


title: Case T-513/15: Action brought on 7 September 2015 — Gruppe Nymphenburg Consult v OHIM (Limbic® Map)

text:
               26.10.2015

               EN

               Official Journal of the European Union

               C 354/48

         Action brought on 7 September 2015 — Gruppe Nymphenburg Consult v OHIM (Limbic® Map)
   (Case T-513/15)
   (2015/C 354/58)
   Language of the case: German

      Parties

      Applicant: Gruppe Nymphenburg Consult AG (Munich, Germany) (represented by: R. Kunze und G. Würtenberger, lawyers)

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

      Details of the proceedings before OHIM

      Trade mark at issue: Community word mark ‘Limbic® Map’ — Application for registration No 12 316 411

      Contested decision: Decision of the First Board of Appeal of OHIM of 23 June 2015 in Case R 1973/2014-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision concerning the application for registration of the Community trade mark 012 316 411 Limbic® Map;

               —

               order OHIM to pay the costs.

      Pleas in law

               —

               Infringement of Article 7(1)(c) Regulation No 207/2009;

               —

               Infringement of Article 7(1)(b) of Regulation No 207/2009;

               —

               Infringement of Article 63, the first sentence of Article 75 and of Article 76 of Regulation No 207/2009.


title: Case C-313/07: Reference for a preliminary ruling from the Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona lodged on 5 July 2007 — Kirtruna S. L. v Cristina Delgado Fernández de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodomésticos S.A. and Electro Calvet (or Calbet) S.A.

text:
               8.9.2007

               EN

               Official Journal of the European Union

               C 211/25

         Reference for a preliminary ruling from the Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona lodged on 5 July 2007 — Kirtruna S. L. v Cristina Delgado Fernández de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodomésticos S.A. and Electro Calvet (or Calbet) S.A.
   (Case C-313/07)
   (2007/C 211/47)
   Language of the case: Spanish
   Referring court
   Juzgado de lo Mercantil (Commercial Court) No 3 Barcelona
   Parties to the main proceedings

      Applicant: Kirtruna S. L.

      Defendants: Cristina Delgado Fernández de Heredia, Sergio Sabini Celio, Miguel Oliván Bascones, Red Elite de Electrodomésticos S.A. and Electro Calbet (formerly Calvet) S.A.
   Question(s) referred

               1.

               Should the guarantee, that the transferee who acquires a business in insolvency or a production unit of that business does not take on liability for debts arising out of employment contracts or other employment relationships provided that the insolvency proceedings give rise to protection at least equivalent to that provided for in Community directives, be considered to relate uniquely and exclusively to debts which are directly linked to employment contracts or other employment relationships, or, in the framework of an overall protection of the rights of employees and the safeguarding of employment, should that guarantee be extended to other contracts which are not strictly related to employment, but nonetheless affect the premises in which the business of the undertaking is carried out, or affect specific methods or instruments of production which are essential to the continuation of the business activity?

               2.

               In the same context of guaranteeing the rights of the employees, can the purchaser of the productive unit obtain from the court which has charge of the insolvency and which authorises the award a guarantee not only in relation to rights which arise from the employment contracts but also in relation to other contracts and obligations of the insolvent party which are essential to guarantee the continuation of the business?

               3.

               If a party acquires an insolvent business or a productive unit and gives an undertaking to safeguard all or some of the employment contracts, and accepts liability for them by subrogation, does that party obtain the guarantee that there will not be asserted against him or transferred to him either other debts of the transferor connected to the contracts or relationships where he accepts liability by subrogation, particularly tax contingencies or social security debts, or rights which may be exercised by the holders of rights and obligations arising from contracts entered into by the insolvent party and which are transferred to the acquirer as a package or as part of a productive unit?

               4.

               In brief, can Directive 23/2001 (1) be interpreted to mean that, as regards the transfer of productive units or businesses which have been judicially or administratively declared insolvent and in liquidation, not only are contracts of employment given protection, but so also are other contracts which have a direct and immediate effect on the safeguarding of those contracts?

               5.

               The final question is whether the wording of Article 149(2) of the Ley Concursal (Spanish Law on Insolvency), when it refers to the transfer of an undertaking, is inconsistent with Article 5(2)(a) of Directive 23/2001 as cited above, to the extent that subrogation transfers to the transferee the obligations of the bankrupt or insolvent party relating to or associated with employment, notably the social security debts which might be unpaid by the insolvent company?

      (1)  Council Directive 2001/23/EC of 12 March 2001 on the approximation of the laws of the Member States relating to the safeguarding of employees' rights in the event of transfers of undertakings, businesses or parts of undertakings or businesses (OJ L 82, p. 16).


title: Case C-230/01: Reference for a preliminary ruling by the Court of Appeal (England and Wales) (Civil Division), by order of that court of 31 May 2001, in the case of Intervention Board for Agricultural Produce against Penycoed Farming Partnership

text:
11.8.2001               EN                       Official Journal of the European Communities                                        C 227/13
Reference for a preliminary ruling by the Cour d’Appel                      preliminary ruling in the case of Intervention Board for
de Pau (First Criminal Chamber) by judgment of that                         Agricultural Produce against Penycoed Farming Partnership,
court of 15 May 2001, in the criminal proceedings against                   on the following questions:
Jacques Bourrasse — Party claiming civil damages: Union
Régionale Syndicale des Petits et Moyens Transporteurs                      1.    Do Articles 1 and/or 2 of Council Regulation 3950/92 (1)
du Sud Ouest (UNOSTRA Aquitaine); Intervener: Inspec-                             permit the competent body in a Member State to take
                  tion du Travail des Transports                                  legal action directly against a producer to recover levy
                                                                                due from that producer (otherwise than pursuant to
                                                                                Article 2 (3) in respect of direct sales)?
                          (Case C-228/01)
                                                                            2.    If so, in what circumstances may such action be taken?
                          (2001/C 227/21)
                                                                            3.    In particular, may such action be taken where the
                                                                                purchaser to whom milk was delivered was (a) not
Reference has been made to the Court of Justice of the                            approved pursuant to Article 7 of Commission Regu-
European Communities by judgment of the Cour d’Appel de                           lation 536/93 (2) and/or (b) has not complied with any of
Pau (First Criminal Chamber) of 15 May 2001, received at the                      its obligations under Article 7 of that Regulation
Court Registry on 11 June 2001, for a preliminary ruling in                       and/or (c) has not recovered or sought to recover levy
the criminal proceedings against Jacques Bourrasse — Party                        from the producers concerned?
claiming civil damages: Union Régionale Syndicale des Petits
et Moyens Transporteurs du Sud Ouest (UNOSTRA Aquitaine);
Intervener: Inspection du Travail des Transports, on the                    (1) Council Regulation (EEC) No 3950/92, of 28 December 1992,
following questions:                                                            establishing an additional levy in the milk and milk products
                                                                                sector (OJ L 405, 31.12.1992, p. 1).
1.    Can ‘the hiring of a vehicle without a driver’ as envisaged           (2) Commission Regulation (EEC) No 536/93 of 9 March 1993 laying
      by Article 2 of Council Directive 84/647/EEC (1) be                       down detailed rules on the application of the additional levy on
      interpreted as permitting the lessor, a road haulage                      milk and milk products (OJ L 57, 10.03.1993, p. 12).
      company governed by French law:
      —     to obtain the carriage authorisations necessary
            within French territory on behalf of the lessee, a
            road haulage company governed by Portuguese law
      —     to manage on behalf of the lessee, a road haulage
            company governed by Portuguese law, the tacho-
            graph discs of the drivers employed by that com-
            pany?                                                           Reference for a preliminary ruling by the Brescia Regional
                                                                            Court — Third Civil Chamber — by order of that court
2.    Did the hired vehicles have to be registered in Portugal?             of 8 May 2001 in case of El.Da. s.r.l. against Ministero
                                                                                delle Finanze
(1) Council Directive 84/647/EEC of 19 december 1984 on the use
    of vehicles hired without drivers for the carriage of goods by road                              (Case C-231/01)
    (OJ L 335 of 22.12.1984 p. 72).
                                                                                (2001/C 227/23)
                                                                            Reference has been made to the Court of Justice of the
                                                                            European Communities by order of the Brescia Regional Court
                                                                            — Third Civil Chamber — of 8 May 2001 received at the
                                                                            Court Registry on 12 June 2001, for a preliminary ruling in
                                                                            the case of El.Da. s.r.l. against Ministero delle Finanze on the
Reference for a preliminary ruling by the Court of Appeal                   following question:
(England and Wales) (Civil Division), by order of that
court of 31 May 2001, in the case of Intervention                           (1) Is Article 11(1) of Italian Law No 448 of 23 December
Board for Agricultural Produce against Penycoed Farming                           1998 (G.U.R.I. No 302 of 29 December 1998, ordinary
                            Partnership                                           supplement) compatible with Community law, in particu-
                                                                                lar with Articles 10 and 12 of Council Directive
                          (Case C-230/01)                                         69/335/EEC (1) of 17 July 1969 concerning indirect taxes
                                                                                on the raising of capital, inasmuch as it provides that the
                                                                                administrative charge is payable at a flat annual rate for
                          (2001/C 227/22)                                         registration of other company documents for each of the
                                                                                years from 1985 to 1992, equal to the sum of the
Reference has been made to the Court of Justice of the                            sum of ITL 750 000 for public limited companies and
European Communities by an order of the Court of Appeal                           partnerships limited by shares and ITL 400 000 for
(England and Wales) (Civil Division) of 31 May 2001, which                        private limited companies and ITL 90 000 for other
was received at the Court Registry on 12 June 2001, for a                         companies?


title: Case T-22/13: Action brought on 16 January 2013 — Senz Technologies/OHIM — Impliva (Umbrellas)

text:
               6.4.2013

               EN

               Official Journal of the European Union

               C 101/19

         Action brought on 16 January 2013 — Senz Technologies/OHIM — Impliva (Umbrellas)
   (Case T-22/13)
   2013/C 101/41
   Language in which the application was lodged: English

      Parties

      Applicant: Senz Technologies BV (Delft, Netherlands) (represented by: W. Hoyng and C. Zeri, lawyers)

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

      Other party to the proceedings before the Board of Appeal: Impliva BV (Amsterdam, Netherlands)

      Form of order sought

   The applicant claims that the Court should:

               —

               To annul the decision of the Third Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) dated 26 September 2012 in Case R 2453/2010-3;

               —

               Uphold the arguments put forward before the General Court and declare the registration of the Registered Community Design with no. 000579032-0001 to be valid;

               —

               Order the Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) to bear its own costs and pay those of the applicant.

      Pleas in law and main arguments

      Registered Community trade design in respect of which a declaration of invalidity has been sought: The trade design ‘Umbrellas’ — Registered Community design No 000579032-0001

      Proprietor of the Community trade design: The applicant

      Applicant for the declaration of invalidity of the Community trade design: Impliva BV

      Grounds for the application for a declaration of invalidity: The application for a declaration of invalidity was based on Articles 4 and 9 Council Regulation No 6/2002

      Decision of the Cancellation Division: Upheld the application for a declaration of invalidity

      Decision of the Board of Appeal: Dismissed the appeal

      Pleas in law: Infringement of Article 7(1) and Articles 6 in connection with 25 (1)(b) of Council Regulation No 6/2002.


5.12.98              EN                   Official Journal of the European Communities                                   C 378/15
     to it on 20 December 1996, the Kingdom of Belgium               The applicant claims that the Court should:
     has failed to fulfil its obligations under the fourth
     paragraph of Article 189 of the EC Treaty and                   1. Declare that, by failing to adopt and bring into force
     Articles 2 and 3 of the said decision; and                          within the prescribed period the laws, regulations or
                                                                         administrative provisions necessary to comply with
Ð order the Kingdom of Belgium to pay the costs.                         Council Directive of 22 June 1994 on the protection
                                                                         of young persons at work (1), and/or by failing to
Pleas in law and main arguments adduced in support:                      inform the Commission thereof, the Italian Republic
                                                                         has failed to fulfil its obligations under the EC Treaty;
The action for annulment of the Commission's Decision of                 and
4 December 1996 (1) does not have a suspensive effect.
The only argument on which a Member State may rely in                2. Order the Italian Republic to pay the costs.
order not to comply with a decision ordering recovery of
aid unlawfully paid is that it is absolutely impossible for          Pleas in law and main arguments adduced in support:
the decision to be complied with correctly.
                                                                     Under Article 189 of the EC Treaty, according to which a
The Commission maintains, first, that, the Kingdom of                directive is to be binding, as to the result to be achieved,
Belgium has not truly complied with its duty to cooperate            upon each Member State to which it is addressed,
in good faith. Even although it had established contacts             Member States are required to observe the time-limits laid
with the Commission in order to explain the possible                 down in directives for their transposition. That time-limit
problems caused by the recovery of the aid unlawfully                expired on 22 June 1996 without the Italian Republic
paid out and to outline a proposal for staggered                     having brought into force the necessary provisions in
repayment, and even although the Commission had not                  order to comply with the directive referred to in the
objected to that proposal, the Kingdom of Belgium                    Commission's application.
suddenly took the step of abandoning the framework of
                                                                     (1) OJ L 216, 20.8.1994, p. 12.
cooperation with the Commission in good faith and of
arguing before the Court that it was absolutely impossible
for the decision to be complied with.
Second, the Commission maintains that the Kingdom of
Belgium has not made the slightest approach to the                          Removal from the register of Case C-51/98 (1)
undertakings in issue with a view to recovering the aid.
Third, it maintains that the Kingdom of Belgium has not                                       (98/C 378/26)
proposed any alternative means of implementing the
decision whereby the difficulties encountered could have             By order of 8 September 1998 the President of the Court
been resolved.                                                       of Justice of the European Communities has ordered the
                                                                     removal from the register of Case C-51/98 (reference for a
(1) Case C-75/97 (OJ C 131, 26.4.1997, p. 5).                        preliminary ruling from the Arbeitsgericht Wiesbaden):
                                                                     Urlaubs- und Lohnausgleichskasse der Bauwirtschaft v.
                                                                     Works in The World Srl.
                                                                     (1) OJ C 137, 2.5.1998.
Action brought on 26 October 1998 by the Commission
 of the European Communities against the Italian Republic
                       (Case C-385/98)
                        (98/C 378/25)                                      Removal from the register of Case C-255/98 (1)
                                                                                (98/C 378/27)
An action against the Italian Republic was brought before
the Court of Justice of the European Communities on                  By order of 12 October 1998 the President of the Court of
26 October 1998 by the Commission of the European                    Justice of the European Communities has ordered the
Communities, represented by Pieter Jan Kuijper and                   removal from the register of Case C-255/98: Kingdom of
Antonio Aresu, Legal Advisers acting as Agents, with an              Spain v. Commission of the European Communities.
address for service in Luxembourg at the Office of Carlos
Gómez de la Cruz, Wagner Centre, Kirchberg.                          (1) OJ C 278, 5.9.1998.


title: Case T-98/09: Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)

text:
               1.5.2009

               EN

               Official Journal of the European Union

               C 102/33

         Action brought on 11 March 2009 — Tubesca v OHIM — Tubos del Mediterráneo (T TUMESA TUBOS DEL MEDITERRANEO S.A.)
   (Case T-98/09)
   2009/C 102/49
   Language in which the application was lodged: French

      Parties

      Applicant: Tubesca (Ailly-sur-Noye, France) (represented by: F. Greffe, avocat)

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

      Other party to the proceedings before the Board of Appeal of OHIM: Tubos del Mediterráneo, SA (Sagunto, Spain)

      Form of order sought

               —

               Annulment of the decision delivered by the Fourth Board of Appeal of OHIM of 17 December 2008 in Case No R 518/2008-4.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Tubos del Mediterráneo, SA

      Community trade mark concerned: Figurative mark ‘T TUMESA TUBOS DEL MEDITERRANEO S.A.’ for goods and services in Classes 6, 35 and 42 — application No 4 085 098

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

      Mark or sign cited in opposition: National and international word and figurative marks ‘TUBESCA’ for goods in Classes 6, 19 and 20

      Decision of the Opposition Division: Opposition partially upheld; partial refusal to register the mark applied for

      Decision of the Board of Appeal: Annulment of the decision of the Opposition Division and rejection of the opposition

      Pleas in law: There is a likelihood of confusion between the opposing marks for consumers displaying average attention or end users, especially since the marks ‘TUBESCA’ are well known and highly distinctive.