title: Case T-197/15 R: Order of the President of the General Court of 19 May 2015 — Costa v Parliament (Application for interim measures — Former Member of the European Parliament — Person in receipt of a Members’ retirement pension — Recipient of an allowance as a President of a port authority — Rule against cumulation — Recovery of the pension received — Debit note — Application for a stay of enforcement — Infringement of the formal requirements — Inadmissibility)

text:
               6.7.2015

               EN

               Official Journal of the European Union

               C 221/22

         Order of the President of the General Court of 19 May 2015 — Costa v Parliament
   (Case T-197/15 R)
   ((Application for interim measures - Former Member of the European Parliament - Person in receipt of a Members’ retirement pension - Recipient of an allowance as a President of a port authority - Rule against cumulation - Recovery of the pension received - Debit note - Application for a stay of enforcement - Infringement of the formal requirements - Inadmissibility))
   (2015/C 221/31)
   Language of the case: Italian

      Parties

      Applicant: Paolo Costa (Venice, Italy) (represented by: G. Orsoni and M. Romeo, lawyers)

      Defendant: European Parliament (represented by: S. Seyr and G. Corstens, Agents)

      Re:

   Application for a stay of enforcement of debit note No 2015-239 (Reference 303074) of the European Parliament of 23 February 2015, ordering the applicant to pay the sum of EUR 49  770,42 by 31 March 2015 at the latest.

      Operative part of the order

               1.

               The application for interim measures is dismissed.

               2.

               The costs are reserved.


title: Case C-355/12: Judgment of the Court (Fourth Chamber) of 23 January 2014 (request for a preliminary ruling from the Tribunale di Milano (Italy)) — Nintendo Co. Ltd and Others v PC Box Srl, 9Net Srl (Directive 2001/29/EC — Copyright and related rights in the information society — Concept of ‘technological measures’ — Protection device — Equipment and protected complementary products — Similar complementary devices, products or components from other undertakings — Exclusion of any interoperability between them — Scope of those technological measures — Relevance)

text:
               29.3.2014

               EN

               Official Journal of the European Union

               C 93/8

         Judgment of the Court (Fourth Chamber) of 23 January 2014 (request for a preliminary ruling from the Tribunale di Milano (Italy)) — Nintendo Co. Ltd and Others v PC Box Srl, 9Net Srl
   (Case C-355/12) (1)

   (Directive 2001/29/EC - Copyright and related rights in the information society - Concept of ‘technological measures’ - Protection device - Equipment and protected complementary products - Similar complementary devices, products or components from other undertakings - Exclusion of any interoperability between them - Scope of those technological measures - Relevance)
   2014/C 93/12
   Language of the case: Italian

      Referring court

   Tribunale di Milano

      Parties to the main proceedings

      Applicants: Nintendo Co. Ltd, Nintendo of America Inc., Nintendo of Europe GmbH

      Defendants: PC Box Srl, 9Net Srl

      Re:

   Request for a preliminary ruling — Tribunale di Milano — Interpretation of Article 6 of Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society (OJ 2001 L 167, p. 10), read together with recital 48 in the preamble to that directive — Concept of ‘technological measures’ — Protection device which excludes any interoperability between, first, the equipment and complementary protected products and, second, similar complementary equipment and products not originating from the manufacturing undertaking or from undertakings authorised by it — Relevance of the designation assigned by the manufacturing undertaking to those technological measures.

      Operative part of the judgment

               1.

               Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright and related rights in the information society must be interpreted as meaning that the concept of an ‘effective technological measure’, for the purposes of Article 6(3) of that directive, is capable of covering technological measures comprising, principally, equipping not only the housing system containing the protected work, such as the videogame, with a recognition device in order to protect it against acts not authorised by the holder of any copyright, but also portable equipment or consoles intended to ensure access to those games and their use.

               2.

               It is for the national court to determine whether other measures or measures which are not installed in consoles could cause less interference with the activities of third parties or limitations to those activities, while still providing comparable protection of the rightholder’s rights. Accordingly, it is relevant to take account, inter alia, of the relative costs of different types of technological measures, of technological and practical aspects of their implementation, and of a comparison of the effectiveness of those different types of technological measures as regards the protection of the rightholder’s rights, that effectiveness however not having to be absolute. That court must also examine the purpose of devices, products or components, which are capable of circumventing those technological measures. In that regard, the evidence of use which third parties actually make of them will, in the light of the circumstances at issue, be particularly relevant. The national court may, in particular, examine how often those devices, products or components are in fact used in disregard of copyright and how often they are used for purposes which do not infringe copyright.

      (1)  OJ C 295, 29.9.2012.


title: ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE of 21 December 1995 in Case T-220/95 R: Christophe Gimenez v. Committee of the Regions of the European Union

text:
2 . 3 . 96          1 EN |                 Official Journal of the European Communities                                   No C 64/ 13
2 . the application for interim measures is dismissed;                Instance of the European Communities on 23 November
                                                                      1995 by Fabricantes de Cemento de Espana ( Oficemen ),
3.   costs are reserved.                                              whose registered office is in Madrid, represented by Jaime
                                                                      Folguera Crespo and Edurne Navarro Varona, of the
                                                                      Barcelona Bar, with an address for service in Luxembourg at
                                                                      the Chambers of Luc Frieden, 62 Avenue Guillaume .
               ORDER OF THE PRESIDENT
          OF THE COURT OF FIRST INSTANCE
                                                                      The applicant claims that the Court should :
                     of 21 December 1995
                                                                      — annul, pursuant to Articles 173 and 174 of the EC
in Case T-220/95 R: Christophe Gimenez v. Committee of
             the Regions of the European Union
                                                                          Treaty, the decision of the Commission of February
                                                                           1994 whereby it gives definite effect to its proposal to
                            96/C 64/29 )                                  refuse to adopt protective measures against imports of
                                                                          cement from Turkey, Romania and Tunisia ,
                (Language of the case: French)
In Case T-220/95 R: Christophe Gimenez, a member of the               — declare, pursuant to Article 175 of the EC Treaty, that,
temporary staff of the Economic and Social Committee of                    by not adopting within a reasonable period a decision
the European Communities, residing in Brussels,                            bringing to a conclusion anti-dumping proceedings, the
represented by Eric Boigelot, of the Brussels Bar, with an                 Commission has infringed Article 7 ( 9 ) ( a ) of the basic
address for service in Luxembourg at the Chambers of Louis                Regulation, and
Schiltz, 2 Rue du Fort Rheinsheim, supported by Union
Syndicale-Bruxelles, established in Brussels, represented by          — order the Commission to pay the costs incurred by
Veronique Lebrun, of the Brussels Bar, with an address for                 Oficemen in these proceedings.
service in Luxembourg at the Chambers of Louis Schiltz, 2
Rue du Fort Rheinsheim, and Economic and Social
Committee of the European Communities ( Agent: Moises                 Pleas in law and main arguments adduced in support:
Bermejo Garde ), v. Committee of the Regions of the
European Union, represented by Dominique Lagasse, of the
Brussels Bar, with an address for service in Luxembourg at            The applicant, an association whose object is, inter alia, to
the office of Carlos Gomez de la Cruz, of the Legal Service of        defend and promote the interests of the Spanish cement
the Commission of the European Communities, Wagner                    sector, challenges the decision of the defendant institution
Centre, Kirchberg — application for suspension of the                 not to proceed with the anti-dumping proceedings against
procedure in competition CdR A/03/95 , organized by the               imports into Spain of cement from Turkey, Tunisia and
Committee of the Regions, alternatively of the appointment            Romania , which was initiated by the complaint lodged by it
procedures anticipated in consequence of that competition             with the Commission . The contested decision is based on the
— the President of the Court of First Instance made an order          finding that the protective measures sought were
on 21 December 1995 , the operative part of which is as               unnecessary since production and volume of sales remained
follows :                                                             stable, market share and the profitability of the sector
                                                                      remained significant and since costs had risen as a result of
 1 . the Union Syndicale-Bruxelles and the Economic and               excessive overcapacity .
      Social Committee are granted leave to intervene in
      support of the form of order sought by the applicant;           The applicant claims, first, that Article 4 of Regulation
                                                                      ( EEC ) No 2423/88 was infringed as a result of the manifest
2 . the application for interim measures is dismissed;                error of assessment and the breach of the principle that due
                                                                      care must be exercised and of the principle of good
 3 . the costs are reserved.                                          administration on which the decision to               shelve   the
                                                                      proceeding is based. The applicant points out in this regard
                                                                      that, contrary to the contention of the Commission, Spanish
                                                                      producers have suffered a significant loss of their share of
                                                                      the market and have been forced to reduce their prices as a
                                                                      result of the dumped imports . Moreover, the fall in profits in
Action brought on 23 November 1995 by Asociacion de                   the sector cannot be attributed to any alleged overcapacity,
 Fabricantes de Cemento de Espana ( Oficemen ) against the             but to the fact that it is impossible to increase prices in order
          Commission of the European Communities                      to reflect the increase in production costs .
                        ( Case T-2 12/95 )
                           ( 96/C 64/30 )                              Secondly, the decision which forms the subject-matter of the
                                                                       dispute infringes Article 9 of the basic Regulation, referred
                (Language of the case: Spanish)                        to above, inasmuch as the Commission is not competent to
                                                                       conclude anti-dumping proceedings without adopting
 An action against the Commission of the European                      protective measures, contrary to the position adopted by the
 Communities was brought before th£ Court of First                     Council .


title: Action brought on 14 March 1995 by the Kingdom of Belgium against the Commission of the European Communities (Case C-71/95)

text:
24 . 6 . 95              EN                  Official Journal of the European Communities                                  No C 159/ 13
     (c ) makes it possible to channel towards the                      — Lack of competence: Regulation ( EC ) No 3303/94
           undertakings referred to in paragraph ( b ) the                  introduces measures with regard to the three countries in
           demand for welfare services provided to old                      question which are at variance with Regulation ( EC )
           people;                                                          No 404/93 . Under Article 149 ( 3 ) of the Act of
                                                                            Accession, that power was vested in the Council and not
     ( d ) allows imposition on undertakings of the obligation              in the Commission .
           to provide, at their own expense, services ancillary
           to those provided by them in return for payment;             — Inadequate statement of reasons .
                                                                        0 ) OJ No L 341 , 30 . 12 . 1994 , p . 46 .
     ( e ) gives rise to arrangements whose effect is to impose
           on non-participating undertakings the obligation to
           provide at their own expense services ancillary to
           the service offered , passing the cost thereof on to
           users ;                                                      Action brought on 13 March 1995 by the Commission of
                                                                        the European Communities against SA Royale Belge and
     ( f) thus creates the necessity of transferring to users the                                         Others
           economic burden of such services, which are
                                                                                ( Case C-76/95 )
           otherwise, where users avail themselves of the
                                                                                95/C 159/26
           services of the undertakings participating in the
           arrangement, free of charge ?
                                                                        An action against SA Royale Belge, acting on its own
                                                                        account and as agent and nominee for the following
                                                                        insurance companies : 1 . SA Assurances générales de France;
                                                                        2 . Caisse nationale de prévoyance ; 3 . Les Mutuelles du
                                                                        Mans; 4 . SA Assurantie van de belgische Boerenbond; 5 . SA
                                                                        Hannover; 6 . AG-Securitas and 7. Condor, was brought
Action brought on 14 March 1995 by the Kingdom of                       before the Court of Justice of the European Communities on
Belgium against the Commission of the European                          13 March 1 995 by the Commission of the European
                              Communities                               Communities, represented by Julian Currall, of the Legal
                                                                        Service, acting as Agent, assisted by Jean-Luc Fagnart, of the
                           ( Case C-71/95 )                             Brussels Bar, with an address for service in Luxembourg at
                             ( 95/C 159/25 )                            the office of Georgios Kremlis, Wagner Centre,
                                                                        Kirchberg.
An action against the Commission of the European
Communities was brought before the Court of Justice of the              The Commission of the European Communities claims that
                                                                        the Court should :
European Communities on 14 March 1995 by the Kingdom
of Belgium, represented by J. Devadder, Director of                     — order the defendant to pay the capital sum due or
Administration in the Ministry of Foreign Affairs, Foreign                  becoming due to the Commission pursuant to Article 73
Trade and Cooperation with Developing Countries , acting                    of the Staff Regulations of officials of the European
as Agent, with an address for service in Luxembourg at the                  Communities in consequence of the occupational
Belgian Embassy, 4 Rue des Girondins .                                      disease     of    Mr      L. ,  a   former official of  the
                                                                            Commission ,
The applicant claims that the Court should :
                                                                        — order the defendant to pay default interest pursuant to
                                                                            Article 1 ( 2 ) of the Agreement from 6 May 1994, the date
— annul Commission Regulation ( EC ) No 3303/94 of                          upon which formal notice was given to the insurers by
     21 December 1994 introducing transitional measures                     the Commission,
     for imports of bananas into Austria, Finland and Sweden
     in the first quarter of 1995 (*) and order the Commission          — order the defendant to pay the costs, pursuant to
     to pay the costs .                                                     Article 69 ( 2 ) of the Rules of Procedure of the Court of
                                                                            Justice.
Pleas in law and main arguments adduced in support:
                                                                        Pleas in law and main arguments adduced in support:
— Discrimination : Article 4 of Regulation ( EC )                       The action has been brought before the Court on the basis of
     No 3303/94 is clearly at variance with Article 19 of               an arbitration clause contained in a contract of insurance
     Council Regulation ( EEC ) No 404/93 ; each of the                 the purpose of which is to cover the financial consequences
     countries in question receives an individual quota                 of the obligations assumed by the Communities under the
     without the allocation laid down in Article 19 of
                                                                        Staff Regulations in respect of accidents and occupational
     Regulation ( EEC ) No 404/93 . The introduction of such            diseases suffered by members of their staff. The parties are in
     a specific scheme gives rise to discrimination between the         dispute regarding the question whether the contract of
     various market participants depending on whether they              insurance allows the insurers to contest the correctness of
     are established in one of the original Member States of            the opinion given by the medical committee.
     the European Union or in one of the Member States
     which acceded on 1 January 1995 .


4 . 5 . 96         UN                     Official Journal of the European Communities                             No C 133/33
        Removal from the register of Case T-516/93 ( )                    Removal from the register of Case T-263/94 ( 1 )
                          ( 96/C 133/67 )                                                     ( 96/C 133/69 )
               (Language of the case: Dutch)                                        (Language of tbe case: Dutch)
By order of 7 March 1996 the President of the Fourth                 By order of 19 March 1996 the President of the First
Chamber ( Extended Composition ) of the Court of First               Chamber ( Extended Composition ) of the Court of First
Instance of the European Communities ordered the removal             Instance of the European Communities ordered the removal
from the register of Case T-516/93 : Pacific Fruit Company           from the register of Case T-263/94 : J. van Rooy v. Council
NV and Pacific Fruit Company BV v. Council of the                    of the European Union and Commission of the European
European Union and Commission of the European                        Communities .
Communities .
                                                                     (M OJ No C 275 , 1 . 10 . 1994 .
(>) OJ No C 188 , 10 . 7 . 1993 .
        Removal from the register of Case T-517/93 ( )               Removal from the register of Joined Cases T-27/95 and
                          ( 96/C 133/68 )                                                        T-29/95 (*)
                                                                                ( 96/C 133/70 )
               (Language of the case: Dutch)
                                                                                (Language of the case: French)
By order of 7 March 1996 the President of the Fourth
Chamber (Extended Composition ) of the Court of First                By order of 28 February 1 996 the President of the Second
Instance of the European Communities ordered the removal             Chamber of the Court of First Instance of the European
from the register of Case T-517/93 : Leon Van Parijs NV v.           Communities ordered the removal from the register of
Council of the European Union and Commission of the                  Joined Cases T-27/95 and T-29/95 : Nicolas Wegter and
European Communities .
                                                                     Antonio B. de Menezes v. Commission of the European
                                                                     Communities .
(') OJ No C 188 , 10 . 7 . 1993 .
                                                                     (!) OJ No C 87, 8 . 4 . 1995 .


title: Case C-227/02: Action brought on 18 June 2002 by the Commission of the European Communities against the Grand Duchy of Luxembourg

text:
C 180/18                 EN                    Official Journal of the European Communities                                      27.7.2002
—     Order the French Republic to pay the costs.                         Action brought on 18 June 2002 by the Commission of
                                                                          the European Communities against the Grand Duchy of
                                                                                Luxembourg
Pleas in law and main arguments
                                                                                (Case C-228/02)
The period prescribed for transposition expired on 21 August                                        (2002/C 180/31)
2001.
(1) OJ L 101, 1.4.1998, p. 17.
                                                                          An action against The Grand Duchy of Luxembourg was
                                                                          brought before the Court of Justice of the European Communi-
                                                                          ties on 18 June 2002 by the Commission of the European
                                                                          Communities, represented by Denis Martin and Miguel França,
                                                                          acting as Agent, with an address for service in Luxembourg.
Action brought on 18 June 2002 by the Commission of                       The applicant claims that the Court should:
the European Communities against the Grand Duchy of
                             Luxembourg                                   —     Declare that, by failing to adopt and bring into force the
                                                                                laws, regulations and administrative provisions necessary
                           (Case C-227/02)                                      to comply with Directive 97/7/EC of the European
                                                                                Parliament and of the Council of 20 May 1997 on
                                                                                the protection of consumers in respect of distance
                           (2002/C 180/30)                                      contracts (1), or, in any event, by failing to communicate
                                                                                to the Commission the adoption of such provisions, the
                                                                                Grand Duchy of Luxembourg has failed to fulfil its
                                                                                obligations under that directive;
An action against the Grand Duchy of Luxembourg was
brought before the Court of Justice of the European Communi-              —     Order the Grand Duchy of Luxembourg to pay the costs.
ties on 18 June 2002 by the Commission of the European
Communities, represented by Denis Martin and Miguel França,
of its Legal Service, acting as Agent, with an address for service
in Luxembourg.
                                                                          Pleas in law and main arguments
The applicant claims that the Court should:
                                                                          The period prescribed for transposition expired on 4 June
1.    Declare that, by failing to bring into force the laws,              2000.
      regulations and administrative provisions needed in order
      to comply with Directive 97/55/EC (1) of the European
                                                                          (1) OJ 1997 L 144, p. 19.
      Parliament and of the Council of 6 October 1997
      amending Directive 84/450/EEC (2) concerning mislead-
      ing advertising so as to include comparative advertising,
      or, in any event, by failing to have informed the
      Commission of any such laws, regulations or administrat-
      ive provisions, the Grand Duchy of Luxembourg has
      failed to fulfil its obligations under that directive.
                                                                          Action brought on 21 June 2002 by French Republic
2.    Order the Grand Duchy of Luxembourg to pay the costs.
                                                                              against Commission of the European Communities
                                                                                (Case C-233/02)
Pleas in law and main arguments
                                                                                (2002/C 180/32)
The period prescribed for transposition expired on 23 April
2000.
                                                                          An action against the Commission of the European Communi-
(1) OJ L 290, 23.10.1997, p. 18.                                          ties was brought before the Court of Justice of the European
(2) OJ L 250, 19.9.1984, p. 17.                                           Communities on 21 June 2002 by the French Republic,
                                                                          represented by R. Abraham, G. de Bergues and P. Boussaroque,
                                                                          acting as Agents, with an address for service in Luxembourg.


title: Case C-267/06: Judgment of the Court (Grand Chamber) of 1 April 2008 (Reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany)) — Tadao Maruko v Versorgungsanstalt der deutschen Bühnen (Equal treatment in employment and occupation — Directive 2000/78/EC — Survivors' benefits under a compulsory occupational pensions scheme — Concept of pay — Refusal because the persons concerned were not married — Same-sex partners — Discrimination based on sexual orientation)

text:
               24.5.2008

               EN

               Official Journal of the European Union

               C 128/6

         Judgment of the Court (Grand Chamber) of 1 April 2008 (Reference for a preliminary ruling from the Bayerisches Verwaltungsgericht München (Germany)) — Tadao Maruko v Versorgungsanstalt der deutschen Bühnen
   (Case C-267/06) (1)

   (Equal treatment in employment and occupation - Directive 2000/78/EC - Survivors' benefits under a compulsory occupational pensions scheme - Concept of ‘pay’ - Refusal because the persons concerned were not married - Same-sex partners - Discrimination based on sexual orientation)
   (2008/C 128/09)
   Language of the case: German
   Referring court
   Bayerisches Verwaltungsgericht München
   Parties to the main proceedings

      Applicant: Tadao Maruko

      Defendant: Versorgungsanstalt der deutschen Bühnen
   Re:
   Reference for a preliminary ruling — Bayerisches Verwaltungsgericht München — Interpretation of Articles 1, 2(2)(a), 3(1)(c) and (3) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303, p. 16) — Meaning of pay — Registered partner excluded from receipt of a survivor's pension
   Operative part of the judgment

               1)

               A survivor's benefit granted under an occupational pension scheme such as that managed by the Versorgungsanstalt der deutschen Bühnen falls within the scope of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation;

               2)

               The combined provisions of Articles 1 and 2 of Directive 2000/78 preclude legislation such as that at issue in the main proceedings under which, after the death of his life partner, the surviving partner does not receive a survivor's benefit equivalent to that granted to a surviving spouse, even though, under national law, life partnership places persons of the same sex in a situation comparable to that of spouses so far as concerns that survivor's benefit. It is for the referring court to determine whether a surviving life partner is in a situation comparable to that of a spouse who is entitled to the survivor's benefit provided for under the occupational pension scheme managed by the Versorgungsanstalt der deutschen Bühnen.

      (1)  OJ C 224, 16.9.2006.


title: Case C-197/03: Judgment of the Court (Third Chamber) of  11 May 2006  — Commission of the European Communities v Italian Republic (Failure of a Member State to fulfil obligations — Directive 69/335/EEC — Articles 10 and 12 — Indirect taxes on the raising of capital — Principles of Community law relating to recovery of undue payment)

text:
               15.7.2006

               EN

               Official Journal of the European Union

               C 165/1

         Judgment of the Court (Third Chamber) of 11 May 2006 — Commission of the European Communities v Italian Republic
   (Case C-197/03) (1)

   (Failure of a Member State to fulfil obligations - Directive 69/335/EEC - Articles 10 and 12 - Indirect taxes on the raising of capital - Principles of Community law relating to recovery of undue payment)
   (2006/C 165/01)
   Language of the case: Italian
   Parties

      Applicant: Commission of the European Communities (represented by: E. Traversa, Agent)

      Defendan): Italian Republic (represented by: I.M. Braguglia, Agent, and by M.P. Gentili, lawyer)
   Re:
   Failure of a Member State to fulfil obligations — Breach of Article 10(c) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital (OJ, English Special Edition 1969(II), p. 412) — National law introducing retrospectively flat-rate annual charges on the registration of documents other than companies instruments of incorporation and laying down a discriminatory and restrictive system for reimbursement of the annual charge on registration of companies instruments of incorporation
   Operative part of the judgment
   The Court:

               1.

               Declares that, by introducing retroactive charges which do not constitute duties paid by way of permitted fees or dues where the registrations in the register of companies for which they are charged have already given rise to charges for which the retroactive charges are intended to be a substitute but which are not reimbursed to those who have paid them, or where those retroactive charges relate to years in which no registration in the register was made justifying their being levied, and by adopting provisions making repayment of a tax held to be contrary to Community law by a judgment of the Court, or whose incompatibility with Community law is apparent from such a judgment, subject to conditions relating specifically to that tax which are less favourable than those which would otherwise be applied to repayment of the tax in question, the Italian Republic has failed to fulfil its obligations under Articles 10 and 12(1)(b) of Council Directive 69/335/EEC of 17 July 1969 concerning indirect taxes on the raising of capital and under the principles identified by the Court in relation to recovery of undue payment;

               2.

               Dismisses the action as to the remainder;

               3.

               Orders the Italian Republic to bear three quarters of the total costs and the Commission of the European Communities to bear the other quarter.

      (1)  OJ C 171, 19.07.2003.


title: Case C-31/11: Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 January 2011 — Marianne Scheunemann v Finanzamt Bremerhaven

text:
               9.4.2011

               EN

               Official Journal of the European Union

               C 113/6

         Reference for a preliminary ruling from the Bundesfinanzhof (Germany) lodged on 20 January 2011 — Marianne Scheunemann v Finanzamt Bremerhaven
   (Case C-31/11)
   2011/C 113/10
   Language of the case: German

      Referring court

   Bundesfinanzhof

      Parties to the main proceedings

      Applicant: Marianne Scheunemann

      Defendant: Finanzamt Bremerhaven

      Question referred

   Must Article 56(1) of the Treaty establishing the European Community, in conjunction with Article 58 thereof, be interpreted as precluding legislation of a Member State which, for the purposes of calculating the inheritance tax on an estate, provides that account be taken of the entire value of a shareholding, forming part of private assets, as a sole shareholder in a capital company with its registered office and principal place of business in Canada, whereas where such a shareholding in a capital company with its registered office or principal place of business in Germany is acquired a tax free amount is granted and only 65 % of the remaining value is taken into account?


title: Case T-466/09: Action brought on 23 November 2009 — Comercial Losan v OHIM — McDonald's International Property (Mc. Baby)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/60

         Action brought on 23 November 2009 — Comercial Losan v OHIM — McDonald's International Property (Mc. Baby)
   (Case T-466/09)
   2010/C 24/106
   Language in which the application was lodged: Spanish

      Parties

      Applicant: Comercial Losan (Zaragoza, Spain) (represented by: A. Vela Ballesteros, lawyer)

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

      Other party to the proceedings before the Board of Appeal of OHIM: McDonald’s International Property Co. Ltd (Delaware, United States)

      Form of order sought

               —

               uphold the action brought against the decision of the Board of Appeal of 1 September 2009 — R 1706/2008-1 Mc Baby/Mc Kids in the opposition proceedings No B 1049362 (Community trade mark application 4 441 393), allow registration of the Community trade mark applied for, and order the opposing party to pay the costs.

      Pleas in law and main arguments

      Applicant for a Community trade mark: Comercial Losan

      Community trade mark concerned: Figurative mark containing the word element ‘Mc. Baby’ (registration application No 4 741 393) for goods and services in Classes 25, 35 and 39

      Proprietor of the mark or sign cited in the opposition proceedings: McDonald’s International Property Co. Ltd.

      Mark or sign cited in opposition: Community figurative mark containing the word element ‘McKids’ (mark No 3 207 354) for goods in classes 16, 25 and 28; Community word mark ‘McDONALD’S’ (mark No 62 497) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42; and Community figurative mark containing the word element ‘McDONALD’S’ (mark No 62 521) for goods and services in Classes 25, 28, 29, 30, 31, 32, 35, 41 and 42

      Decision of the Opposition Division: Partial upholding of the opposition.

      Decision of the Board of Appeal: Partial upholding of the appeal.

      Pleas in law: Incorrect interpretation and application of Article 8(1)(b) of Regulation No 40/94, replaced by Regulation No 207/2009.


title: Case T-35/04: Judgment of the Court of First Instance of  15 March 2006  — Athinaiki Oikogenaiki Artopoiia v OHIM ( Community trade mark — Opposition proceedings — Earlier word mark FERRERO — Application for Community figurative trade mark containing the verbal element  FERRÓ  — Relative ground for refusal — Likelihood of confusion — Article 8(1)(b) of Regulation (EC) No 40/94 )

text:
               6.5.2006

               EN

               Official Journal of the European Union

               C 108/19

         Judgment of the Court of First Instance of 15 March 2006 — Athinaiki Oikogenaiki Artopoiia v OHIM
   (Case T-35/04) (1)

   (‘Community trade mark - Opposition proceedings - Earlier word mark FERRERO - Application for Community figurative trade mark containing the verbal element “FERRÓ” - Relative ground for refusal - Likelihood of confusion - Article 8(1)(b) of Regulation (EC) No 40/94’)
   (2006/C 108/33)
   Language of the case: English
   Parties:

      Applicant: Athinaiki Oikogenaiki Artopoiia AVEE (Pikermi, Greece) (represented by: C. Chrissanthis, lawyer)

      Defendant: Office for Harmonisation in the Internal Market (Trade Marks and Designs) (represented by: J. Novais Gonçalves, Agent)

      Other party to the proceedings before the Board of Appeal of OHIM, intervening before the Court of First Instance: Ferrero OHG mbH (Stadtallendorf, Germany) (represented by: M. Schaeffer, lawyer)
   Action
   brought against the decision of the First Board of Appeal of OHIM of 1 December 2003 (Case R 460/2002-1), relating to opposition proceedings between Athinaiki Oikogeniaki Artopoiia AVEE and Ferrero OHG mbH.
   Operative part of the judgment
   The Court:

               1.

               Dismisses the action;

               2.

               Orders the applicant to pay the costs incurred by the Office for Harmonisation in the Internal Market (Trade Marks and Designs);

               3.

               Orders the intervener to bear its own costs.

      (1)  OJ C 94, of 17.4.2004.


title: Case C-174/12: Judgment of the Court (Second Chamber) of 19 December 2013 (request for a preliminary ruling from the Handelsgericht Wien (Austria)) — Alfred Hirmann v Immofinanz AG (Reference for a preliminary ruling — Company law — Second Directive 77/91/EEC — Liability of a public limited liability company for breach of its obligations in respect of advertising — Inaccurate information in share prospectus — Extent of liability — Legislation of a Member State providing for repayment of the price paid by the purchaser for purchased shares)

text:
               22.2.2014

               EN

               Official Journal of the European Union

               C 52/9

         Judgment of the Court (Second Chamber) of 19 December 2013 (request for a preliminary ruling from the Handelsgericht Wien (Austria)) — Alfred Hirmann v Immofinanz AG
   (Case C-174/12) (1)

   (Reference for a preliminary ruling - Company law - Second Directive 77/91/EEC - Liability of a public limited liability company for breach of its obligations in respect of advertising - Inaccurate information in share prospectus - Extent of liability - Legislation of a Member State providing for repayment of the price paid by the purchaser for purchased shares)
   2014/C 52/13
   Language of the case: German

      Referring court

   Handelsgericht Wien

      Parties to the main proceedings

      Applicant: Alfred Hirmann

      Defendant: Immofinanz AG

      Intervening party: Aviso Zeta AG

      Re:

   Reference for a preliminary ruling — Handelsgericht Wien — Interpretation of Articles 12, 15, 18, 19 and 42 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent (OJ 1977 L 26, p. 1), as amended, Articles 6 and 25 of Directive 2003/71/EC on the prospectus to be published when securities are offered to the public or admitted to trading, and amending Directive 2001/34/EC (OJ 2001, L 345, p. 64), as amended by Directive 2008/11/EC of the European Parliament and of the Council of 11 March 2008 (OJ 2008 L 76, p. 37), Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of the second paragraph of Article 48 of the Treaty, with a view to making such safeguards equivalent (OJ 2009 L 258, p. 11), Articles 7, 17 and 28 of Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC (OJ 2004 L 390, p. 38) and Article 14 of Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (OJ 2003 L 96, p. 16) — Liability of a public limited company for infringement of its information obligations — Inaccuracy of the information contained in a prospectus — Member State legislation laying down that in such a case the price paid by the subscriber for the shares should be refunded — Situation in which the shares have been acquired on the secondary market on the basis of the prospectus

      Operative part of the judgment

               1.

               Articles 12, 15, 16, 18, 19 and 42 of Second Council Directive 77/91/EEC of 13 December 1976 on coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the [second paragraph of Article 48 EC], in respect of the formation of public limited liability companies and the maintenance and alteration of their capital, with a view to making such safeguards equivalent, as amended by Council Directive 92/101/EEC of 23 November 1992, must be interpreted as not precluding national legislation which, in the context of the transposition of:

                           —

                           Directive 2003/71/EC of the European Parliament and of the Council of 4 November 2003 on the prospectus to be published when securities are offered to the public or admitted to trading and amending Directive 2001/34/EC,

                           —

                           Directive 2004/109/EC of the European Parliament and of the Council of 15 December 2004 on the harmonisation of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market and amending Directive 2001/34/EC,

                           —

                           and Directive 2003/6/EC of the European Parliament and of the Council of 28 January 2003 on insider dealing and market manipulation (market abuse),

                     first, provides that a public limited liability company, as an issuer of shares, may have a liability to a purchaser of shares in that company based on a breach of the information requirements laid down in those directives, and, secondly, imposes, under that liability, an obligation on the company concerned to repay to the purchaser a sum equivalent to the purchase price of the shares and to redeem those shares.

               2.

               Articles 12 and 13 of Directive 2009/101/EC of the European Parliament and of the Council of 16 September 2009 on coordination of safeguards which, for the protection of the interests of members and third parties, are required by Member States of companies within the meaning of [the second paragraph of Article 48 EC], with a view to making such safeguards equivalent, must be interpreted as not precluding national legislation which, in circumstances such as those of the main proceedings, provides for the retroactive cancellation of a share purchase contract.

               3.

               Articles 12, 15, 16, 18, 19 and 42 of the Second Directive 77/91, as amended by Directive 92/101, and Articles 12 and 13 of Directive 2009/101 must be interpreted as meaning that the liability established by the national legislation at issue in the main proceedings is not necessarily restricted to the value of shares, calculated according to the price of those shares if the company is publicly listed, at the time when the claim is brought.

      (1)  OJ C 151, 26.5.2012.


title: Judgment of the Court of 22 July 2013 in Case E-15/12 — Jan Anfinn Wahl v the Icelandic State (Article 3 EEA — Article 7 EEA — Form and method of implementation of directives — Directive 2004/38/EC — Free movement of EEA nationals — Restrictions on right of entry — Procedural safeguards)

text:
               24.10.2013

               EN

               Official Journal of the European Union

               C 309/6

         JUDGMENT OF THE COURT
   of 22 July 2013
   in Case E-15/12
   Jan Anfinn Wahl v the Icelandic State
   (Article 3 EEA — Article 7 EEA — Form and method of implementation of directives — Directive 2004/38/EC — Free movement of EEA nationals — Restrictions on right of entry — Procedural safeguards)
   2013/C 309/06
   In Case E-15/12 Jan Anfinn Wahl v the Icelandic State — REQUEST to the Court from Hæstiréttur Íslands (the Supreme Court of Iceland) under Article 34 of the Agreement between the EFTA States on the Establishment of a Surveillance Authority and a Court of Justice concerning the interpretation of Article 27 of Directive 2004/38/EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States, the Court, composed of Carl Baudenbacher, President (Judge-Rapporteur) and Per Christiansen and Páll Hreinsson, Judges, gave judgment on 22 July 2013, the operative part of which is as follows:

               1.

               Under Article 7 EEA, an EEA/EFTA State has the choice of form and method when implementing an act corresponding to Directive 2004/38/EC into its legal order. Depending on the legal context, the implementation of a directive does not necessarily require legislative action, as long as it is implemented with unquestionable binding force and the specificity, precision and clarity necessary to satisfy the requirements of legal certainty.

               2.

               It is sufficient for an EEA State to base a decision under Article 27 of the Directive not to grant an individual who is a national of another EEA State leave to enter its territory on grounds of public policy and/or public security only upon a danger assessment, which assesses the role of the individual in the accession of a new charter to an organisation of which the individual is a member and which concludes that the organisation is associated with organised crime and that where such an organisation has managed to establish itself, organised crime has increased. It is further required that the assessment is based exclusively on the personal conduct of the individual concerned. Moreover, this personal conduct must represent a genuine, present and sufficiently serious threat to one of the fundamental interests of society, and the restriction on the right to entry must be proportionate. In the light of the relevant matters of fact and law, it is for the national court to determine whether those requirements are met.

               3.

               An EEA State cannot be obliged to declare an organisation and membership therein unlawful before it can deny a member of that organisation who is a national of another EEA State leave to enter its territory pursuant to Article 27 of the Directive if recourse to such a declaration is not thought appropriate in the circumstances. However, the EEA State must have clearly defined its standpoint as regards the activities of that organisation and, considering the activities to be a threat to public policy and/or public security, it must have taken administrative measures to counteract those activities.

               4.

               In order to invoke a public policy and/or public security threat under Article 27(1) of the Directive it does not suffice that an EEA State has defined as punishable, conduct that consists of conniving with another person in the commission of an act, the commission of which is part of the activities of a criminal organisation.

               5.

               The national administrative authorities must ensure that there is sufficient evidence to conclude under Article 27(2) of the Directive that the individual concerned was likely to engage in personal conduct that represents a genuine, present and sufficiently serious threat affecting one of the fundamental interests of society. It is for the national court to determine, in compliance with the principles of equivalence and effectiveness, whether this is the case.


title: Case C-167/99: Action brought on 20 April 1999 by the European Parliament against Société d'aménagement et d'équipement de la région de Strasbourg (Development and installation company for the region of Strasbourg - S.E.R.S.) and the City of Strasbourg

text:
28.8.1999               EN                   Official Journal of the European Communities                                        C 246/9
Pleas in law and main arguments                                         Pleas in law and main arguments
Error of law on the part of the Court of First Instance as
                                                                        In basing its findings on incorrect premisses, namely, an
regards a misuse of powers and infringement of Article 176 of
                                                                        erroneous characterisation of certain facts, the Court of First
the EC Treaty (now Article 233 EC): the Commission maintains
                                                                        Instance reached a conclusion which unlawfully reduced the
that the mere fact that it decided — in consequence of the
                                                                        time-limit for submitting a complaint and prejudiced the rights
initial annulment of the appointment of Mr X — to withdraw
                                                                        of the defence. The Court of First Instance wrongly treated as
the vacancy notice and to replace it with another one cannot
                                                                        a complaint, within the meaning of Article 90(2) of the Staff
in itself be construed, under any circumstances, as tantamount
                                                                        Regulations, a letter from the appellant’s lawyer which clearly
to a misuse of powers without disregarding Article 176 of the
                                                                        shows that the appellant had not yet taken the decision to
EC Treaty itself and the separation of powers which must of
                                                                        submit a complaint.
necessity exist between the executive and the Community
judicature. The wide discretion enjoyed by the appointing
authority in defining the conditions governing access to a post
in accordance with the needs of the service cannot be called in
question, even where the recruitment procedure has been
partially annulled by a judgment of the Community judicature.
In order for it to be able to state that the new vacancy notice
was worded in an arbitrary or even wrongful manner, the
Court of First Instance should first have established the
irrelevance of the qualifications to which particular importance
was attached in the new vacancy notice as publicised.                   Action brought on 20 April 1999 by the European
                                                                        Parliament against Société d’aménagement et d’équipe-
                                                                        ment de la région de Strasbourg (Development and
(1) OJ C 160 of 5.6.1999, p. 19.                                        installation company for the region of Strasbourg —
                                                                                S.E.R.S.) and the City of Strasbourg
                                                                                (Case C-167/99)
                                                                                (1999/C 246/18)
Appeal brought on 26 April 1999, by Corrado Politi
against the order made on 9 February 1999 by the Second                 An action against Société d’aménagement et d’équipement de
Chamber of the Court of First Instance of the European                  la région de Strasbourg (S.E.R.S.) and the City of Strasbourg
Communities in Case T-124/98 between Corrado Politi                     was brought before the Court of Justice of the European
             and the European Training Foundation                       Communities on 20 April 1999 by the European Parliament,
                                                                        represented by Timothy Millet, Head of Division in its Legal
                         (Case C-154/99 P)                              Service, and Olivier Caisou-Rousseau, also of that service,
                                                                        acting as Agents, with an address for service in Luxembourg at
                                                                        the General Secretariat of the European Parliament, Mail and
                          (1999/C 246/17)                               Registration Service, Bâtiment Tour, Office 017.
An appeal against the order made on 9 February 1999 by the
Second Chamber of the Court of First Instance of the European           The European Parliament claims that the Court should:
Communities in Case T-124/98 between Corrado Politi and
the European Training Foundation was brought before the                 1. order S.E.R.S. to pay penalties for fate completion from 9
Court of Justice of the European Communities on 26 April                    January 1998, the contractual date for completion of the
1999 by Corrado Politi, represented by Jean-Noël Louis,                     IPE IV building, until 14 December 1998 inclusive, the day
Gréta-Françoise Parmentier and Véronique Peere, of the Brus-                before that building was declared to be completed, or, in
sels Bar, with an address for service in Luxembourg at the                  the alternative, order S.E.R.S. to pay penalties for fate
offices of Fiduciaire Myson SARL, 30 Rue de Cessange.                       completion from such contractual date for completion as
                                                                            the Court may decide;
The appellant claims that the Court should:
                                                                        2. declare the delays after 9 January 1998, the contractual
     declare and rule that:                                                 date for completion of the IPE IV building, unjustified, and,
                                                                            accordingly, declare that the European Parliament is not
     — the order of the Court of First Instance of the European             liable to interim interest from that contractual date for
          Communities (Second Chamber) of 9 February 1999                   completion of the IPE IV building until 14 December 1998
          in Case T-124/99 Corrado Politi v European Training               inclusive, or, in the alternative, declare that the European
          Foundation is to be set aside;                                    Parliament is not liable to interim interest from such
                                                                            contractual date for completion as the Court may decide;
     — the case is to be referred back to the Court of First
          Instance for adjudication on the pleas advanced by the
          appellant in the substantive proceedings;                     3. annul the opinion of the College of conciliators;
     make the appropriate ruling as to costs.                           4. order the defendants to pay the costs.
 ---pagebreak--- C 246/10               EN                     Official Journal of the European Communities                                      28.8.1999
Pleas in law and main arguments                                          between officials must serve the objective set in Article 27 of
                                                                         the Staff Regulations of securing for the institution the services
The application is made on the basis of an arbitration clause            of officials of the highest standard of ability, efficiency and
and is founded on a standard contract governed by French                 integrity.
law.
Appeal brought on 10 May 1999 by the European Parlia-                    Appeal brought on 31 May 1999 by the Commission of
ment against the judgment delivered on 9 March 1999 by                   the European Communities against the judgment deliver-
the Fifth Chamber of the Court of First Instance of the                  ed on 25 March 1999 by the Fourth Chamber of the Court
European Communities in Case T-273/97 between Pierre                     of First Instance of the European Communities in Case
               Richard and European Parliament                           T-76/98 between Claudine Hamptaux and the Com-
                                                                                mission of the European Communities
                        (Case C-174/99 P)
                                                                                (Case C-207/99 P)
                         (1999/C 246/19)
                                                                                (1999/C 246/20)
An appeal against the judgment delivered on 9 March 1999
by the Fifth Chamber of the Court of First Instance of the               An appeal against the judgment delivered on 25 March 1999
European Communities in Case T-273/97 between Pierre                     by the Fourth Chamber of the Court of First Instance of the
Richard and European Parliament was brought before the                   European Communities in Case T-76/98 between Claudine
Court of Justice of the European Communities on 10 May 1999              Hamptaux and the Commission of the European Communities
by the European Parliament, represented by João Sant’Anna, of           was brought before the Court of Justice of the European
its Legal Service, acting as agent, assisted by Denis Waelbroeck,        Communities on 31 May 1999 by the Commission of the
of the Brussels Bar, with an address for service in Luxembourg           European Communities, represented by Christine Berardis-
at the Secretariat General of the European Parliament, Mail and          Kayser and F. Duvieusart-Clotuche, of its Legal Service, acting
Registration Department, Tower Building, Office 017.                     as Agents, assisted by Denis Waelbroeck, lawyer, with an
                                                                         address for service in Luxembourg at the office of Carlos
The appellant claims that the Court should:                              Gómez de la Cruz, Wagner Centre, Kirchherg.
— set aside the judgment of the Court of First Instance of 9             The appellant claims that the Court should:
     March 1999 in Case T-273/97 between Pierre Richard and
     the European Parliament;                                            — declare the appeal admissible and well-founded;
— consequently, refer the case back to the Court of First                — consequently, annul the contested judgment and dismiss
     Instance;                                                                the respondent’s claim;
— reserve a decision as to costs until final adjudication.               — alternatively, refer the case back, in consequence, to the
                                                                              Court of First Instance;
Pleas and main arguments
                                                                         — reserve the costs.
Breach of Community law, specifically of Article 29 of the
Staff Regulations: in the judgment under appeal, the Court of            Pleas in law and main arguments
First Instance fundamentally changed the interpretation of
Article 29(1) of the Staff Regulations. Instead of taking the            Contradiction in the grounds of judgment and error of law
view that Article 29(1) provides for a procedure to fill a vacant        as regards the promotion procedure carried out by the
post, with separate rules — it being a question for the                  Commission: the Court of First Instance erred — and contra-
appointing authority whether they enable the most suitable               dicted its own findings of fact — in concluding that, according
person to be found — the Court of First Instance espoused the            to the promotion procedure carried out by the Commission,
view that Article 29 provides for a series of four separate              officials whose names had already appeared on the list of those
stages or phases, each of which must be formally initiated and           most deserving of promotion in the previous year but had not
closed before the appointing authority can move on to the                been promoted would automatically be included on the list of
next. The Court also took the view that, as from the moment              most deserving officials. It is apparent from the facts accepted
when a suitable candidate is discovered during the first stage           by the Court of First Instance itself that the names of such
under Article 29, the institution is no longer entitled to extend        officials do not automatically feature on that list and that they
the range of choice available by considering possibilities under         are not automatically promoted, since the Commission checks
other rules, laid down in Article 29(1)) of the Staff Regulations.       in each individual case to ensure that the officials concerned
In so doing, the judgment under appeal contravenes two of                have not ceased to be ‘meritorious’, that is to say, that they are
the fundamental principles which must be respected in the                still deserving of promotion, which necessarily involves an
case of any appointment of officials to vacancies: (i) the               examination of their comparative merits.
principle laid down in Article 7(1) of the Staff Regulations,
according to which all appointments must be made exclusively
in the interests of the service; (ii) the principle that all choices


title: Case T-525/08: Judgment of the General Court of 13 September 2013 — Poste Italiane v Commission (State aid — Remuneration of funds from postal accounts placed with the Italian Treasury — Decision declaring the aid incompatible with the internal market and ordering its recovery — Concept of State aid — Advantage)

text:
               26.10.2013

               EN

               Official Journal of the European Union

               C 313/16

         Judgment of the General Court of 13 September 2013 — Poste Italiane v Commission
   (Case T-525/08) (1)

   (State aid - Remuneration of funds from postal accounts placed with the Italian Treasury - Decision declaring the aid incompatible with the internal market and ordering its recovery - Concept of State aid - Advantage)
   2013/C 313/29
   Language of the case: Italian

      Parties

      Applicant: Poste Italiane SpA (Rome, Italy) (represented by: A. Fratini, A. Sandulli and F. Filpo, lawyers)

      Defendant: European Commission (represented by: C. Cattabriga and D. Grespan, acting as Agents)

      Re:

   Annulment of Commission Decision 2009/178/EC of 16 July 2008 on the State aid C 42/06 (ex NN 52/06) implemented by Italy to remunerate current accounts held by Poste Italiane with the State Treasury (OJ 2009 L 64, p. 4).

      Operative part of the judgment

   The Court:

               1.

               Annuls Commission Decision 2009/178/EC of 16 July 2008 on the State aid C 42/06 (ex NN 52/06) implemented by Italy to remunerate current accounts held by Poste Italiane with the State Treasury;

               2.

               Orders the European Commission to bear its own costs and to pay those incurred by Poste Italiane.

      (1)  OJ C 44, 21.1.2009.


title: Case F-125/07: Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2009 — Hau v Parliament (Staff case — Officials — Promotion — 2006 promotion exercise — Non-inclusion on the list of promoted officials — Comparative examination of the merits — Relevant threshold — Failure to take into account the fact that the official concerned was included in the reserve)

text:
               30.1.2010

               EN

               Official Journal of the European Union

               C 24/73

         Judgment of the Civil Service Tribunal (Second Chamber) of 29 September 2009 — Hau v Parliament
   (Case F-125/07) (1)

   (Staff case - Officials - Promotion - 2006 promotion exercise - Non-inclusion on the list of promoted officials - Comparative examination of the merits - Relevant threshold - Failure to take into account the fact that the official concerned was included in the reserve)
   2010/C 24/133
   Language of the case: French

      Parties

      Applicant: Armin Hau (Luxembourg, Luxembourg) (represented by: É. Boigelot, lawyer)

      Defendant: European Parliament (represented by: K. Zejdová and S. Seyr, acting as Agents)

      Re:

   First, annulment of the decision of the Appointing Authority to not promote the applicant to grade B*7 for the 2006 promotion exercise and second, an application for the Appointing Authority to produce the documents concerning the comparative examination of the merits for that promotion.

      Operative part of the judgment

   The Tribunal:

               1.

               Annuls the decision of the European Parliament, published on 21 November 2006, to not include Mr Hau on the list of officials promoted from grade B*6 to grade B*7 for the 2006 promotion exercise;

               2.

               Orders the European Parliament to pay the costs.

      (1)  OJ C 79, 29.3.2008, p. 37.


title: Reference for a preliminary ruling by the High Court of Justice, Queen's Bench Division, by order of that Court of 10 October 1996, in the case of the Queen against Medicines Control Agency, Ex parte: Generics (UK) Limited, E. R. Squibb & Sons, Intervener (Case C-368/96)

text:
8 . 2 . 97             I r,N                   Official Journal of the European Communities                                     No C 40 7
on 17 September 1996 by Giorgio Bernardi , represented                    2 . If the reply to Question 1 is in the negative, if, that is,
by Giancarlo Lattanzi, of the Massa-Carrara Bar, with an                       the Court of Justice reserves such competence for
address for service in Luxembourg at 22 Rue Godchaux.                          itself, for reasons relating, for instance, to the uniform
                                                                               application of Community provisions, may the specific
The appellant claims that the Court should :                                   circumstances as formulated by the defendant
                                                                               respondent State as an objection, which constituted
— find and declare the present appeal (') admissible and                       the issue of proof in Judgment No 5943/ 1994 of this
      well-founded,
                                                                               Court, and which were set out succinctly in the
— set aside the judgment appealed against,                                     previous paragraph of this Judgment, or certain of
                                                                               them and if so which, prevent an action founded on
— dispose of the case and allow the claims made therein,                       infringement of Article 25 ( 1 ) of the Second Council
                                                                               Directive 77/91 /EEC (') from succeeding ?
— refer the case back, as appropriate .
                                                                          (') OJ No L26 , 30 . 1 . 1977, p . 1 .
Pleas in law and main arguments adduced in support:
— lack of jurisdiction of the Court of First Instance to
       consider the action on the basis of Article 173 of the
       EC Treaty: In the present case, the action concerns the            Reference for a preliminary ruling by the High Court of
       procedure for appointing the European Ombudsman,                   Justice, Queen's Bench Division, by order of that Court of
       and is therefore a new subject matter, hence the                   10 October 1996, in the case of the Queen against
       application either of Article 43 of the ECSC Treaty                Medicines Control Agency, Ex parte: Generics ( UK )
       ( according to which 'the Court shall have jurisdiction                          Limited, E. R. Squibb & Sons, Intervener
       in any other case provided for by a provision
                                                                                Case C-368/96
       supplementing this Treaty'), or of a general principle
       of jurisdiction 'according to subject matter' ( since the                                       ( 97/C 40/ 15 )
       oath was taken by the European Ombudsman before
       the Court of Justice ),                                            Reference has been made to the Court of Justice of the
— ( In the alternative ) breach of Community law.                         European Communities by an order of the High Court of
                                                                          Justice, Queen 's Bench Division, of 10 October 1996 ,
                                                                          which was received at the Court Registry on 22 November
(') Appeal directed against the judgment published in OJ No
     C 247, 24 . 8 . 1996 , p. 15 .
                                                                          1996 , for a preliminary ruling in the case of the Queen
                                                                          against Medicines Control Agency, Ex parte : Generics
                                                                          ( UK ) Limited, E. R. Squibb & Sons, Intervener, on the
                                                                          following questions:
Reference for a preliminary ruling by the First Chamber of                1 . ( a ) What is meant by 'essentially similar' for the
the Efetio Athinon ( Court of Appeal, Athens ), by a                                   purposes of Article 4.8 ( a ) ( iii ) of Council
judgment of that court of 6 June 1996 in the case of                                   Directive 65/65/EEC (^ of 26 January 1965 on the
Alexandros Kefalas            and Others v.     Greek State     and                    approximation of provisions laid down by law,
Organismos Ikonomikis Anasinkrotisis Epikhirseon AE                                    regulation or administrative action relating to
and Others — Interveners: Athinaiki Khartopiia AE and                                  proprietary medicinal products ( as amended )? In
                                    Others                                             particular, when seeking to establish for that
                                                                                purpose that a medicinal product (product B ) is
                            ( Case C-367/96 )                                          essentially similar to a medicinal product which
                               ( 97/C 40/ 14 )                                         has been authorized within the Community for
                                                                                6/ 10 years in accordance with the Community
Reference has been made to the Court of Justice of the                                 provisions in force ( product A ), by reference to
European Communities by a judgment of the First                                        which physical or other characteristics or
Chamber of the Court of Appeal, Athens, of 6 June 1996 ,                               attributes of the medicinal products in question
                                                                                should this be determined ?
which was received at the Court Registry on 21 November
 1996 , for a preliminary ruling in the case of Alexandros                      ( b) Does the competent authority of a Member State
Kefalas and Others v. Greek State and Organismos                                       have a margin of discretion in determining the
 Ikonomikis Anasinkrotisis Epikhiriseon AE — Interveners :                             criteria in accordance with which the question of
 Athinaiki Khartopiia AE and Others — on the following                                 whether product B is essentially similar to
 questions:                                                                            product A is to be judged, and if so to what
                                                                                extent ?
 1 . Is the national court recognized as having the
        possibility of applying a provision of national law ( in           2 . May product B be authorized in accordance with
        this case Article 281 of the Greek Civil Code ) in order                Article 4.8 ( a ) ( iii ) of Directive 65/65/EEC ( as
        to assess whether a right granted by the Community                      amended ) in respect of:
        provisions at issue is being exercised by the party
        possessing the right in abuse of rights, or are there                    ( a ) all indications for which product A is currently
        other Community law principles, and if so which , to                           authorized in the relevant Member State at the
         be found in legislation or settled case-law, on which                          date of the application made in relation to
        the national court may, if need be, base itself?                               product B; or
 ---pagebreak--- No c 40/8                  ΓΕΝ ]                      Official Journal of the European Communities                                                8 . 2 . 97
    ( b) only those indications for which product A has                          4 . Does it make any difference to the answer to
              been authorized in the EU in accordance with                               Questions 2 and/or 3 whether the original or abridged
              Community provisions in force for 6/10 years; or                           applications for marketing authorizations were made
                                                                                before     16 March            1995 , the date upon which
    ( c ) only :                                                                         Regulation ( EC ) No 541 /95 entered into forece ?
              1 . those indications for which product A has been
                   authorized       in   the   EU in     accordance   with
                   Community provisions in force for 6/ 10 years;                5 . In the light of the answers to Questions 1 —4 above, is
                   and                                                                   Article 4.8 ( a ) ( iii ) invalid as contrary to the principles
                                                                                of protection of innovation and/or non-discrimination
              2 . those indications for which product A has been                         and/or proportionality and/or respect for property ?
                   authorized for a shorter period, and which did
                   not require an application for the grant of a
                   new marketing authorization under the                         (') Official Journal English Special Edition 1995— 1996 , p. 20 .
                   provisions of Annex II of Commission                          ( 2 ) OJ No E 55 , IE 3 . 1995 , p. 7 .
                   Regulation ( EC ) No 541 /95 or ( as the case
                   may be ) would not have required such an
                   application had the said Regulation been in
                   force at the time the indication in question was
                   added       by        variation     to    an    existing
                   authorization ; or
     ( d ) some other category of indications, and if so                         References for a preliminary ruling by the Tribunale di
              which ?                                                            Trento by orders of that Court of 24 October 1996 in the
                                                                                cases of 1 . Ministero delle Finanze against Cotonificio del
                                                                                Trention SpA ( C-371/96 ) and 2 . Ministero delle Finanze
3 . May product B be authorized in accordance with
                                                                                against Merkur Chemical Sri ( C-373/96 )
     Article 4.8           (a)   ( iii ) of Directive 65/65/EEC ( as
     amended) in respect of:                                                                         ( Cases C-371 /96 and C-373/96 )
      ( a ) all dosage forms and/or doses and/or dosage                                                             ( 97/C 40/ 16 )
              schedules for which product A is currently
              authorized in the relevant Member State at the
              date of the application made in relation to
              product B; or                                                       Reference has been made to the Court of Justice of the
                                                                                European Communities by orders of the Tribunale di
      ( b ) only those dosage forms and/or doses and/or                           Trento ( Trento District Court ) of 24 October 1996 ,
              dosage schedules for which product A has been                       received at the Court Registry on 25 November 1996 , for
              authorized       in      the   EU    in    accordance    with       a preliminary ruling in the cases of 1 . Ministero delle
               Community provisions in force for 6/ 1 0 years; or                 Finanze against Cotonificio del Trention SpA ( C-371 /96 )
                                                                                and 2 . Ministero delle Finanze against Merkur Chemical
       ( c) only:                                                                  Sri ( C-373/96 ) on the following question:
               1 . those dosage forms and/or doses and/or dosage
                    schedules for which product A has been
                    authorized in the EU in               accordance with          'Does Community law, as interpreted by the Court of
                    Community provisions in force for 6/10 years;                 Justice in its judgment in Case C-208/90 Emmott v.
                    and                                                            Minister for Social Welfare and the Attorney General
                                                                                ( 1991 ) ('), preclude the Italian State, in an action brought
               2 . those dosage forms and/or doses and/or dosage                   against it by a company for reimbursement of sums paid
                    schedules for which product A has been                         by way of taxes which were prohibited by Article 10 of
                    authorized for a shorter period, and which did                 Council Directive 69/335/EEC (2 ), from pleading a
                    not require an application for the grant of a                  national       time-limit       for   submission  of  reimbursement
                    new marketing authorization under the                          claims where, as is provided in Article 13 ( 2 ) of
                    provisions of Annex II of Commission                           Presidential Decree No 641 /72 of 26 October 1972 , time
                    Regulation ( EC ) No 541 /95 ( 2 ) of 10 March                  begins to run from the date of the undue payment of the
                     1995 concerning the examination of variations                 above sums, rather than from the point in time at which,
                    to the terms of a marketing authorization                      with the subsequent abolition of the tax falling within the
                    granted by a competent authority of a Member                    prohibition of Article 10 of the above Directive, the
                     State or ( as the case may be ) would not have                 Italian State abolished the measure which conflicted with
                    required such an application had the said                       that Directive ?'
                     Regulation been in force at the time the dosage
                     form and/or dose and/or dosage schedule in
                     question was added by variation to an existing                 (') ECR 1-4269 , 1991 .
                     authorization; or                                              (2 ) Official Journal English Special Edition 1969 ( II ) p. 412.
         ( d ) some other category of dosage forms and/or doses
                and/or dosage schedules, and if so which ?


C 163/36              EN                      Official Journal of the European Communities                                   10.6.2000
Removal from the register of Case T-518/97 to T-564/97 (1)                      Removal from the register of Case T-186/99 (1)
                        (2000/C 163/73)                                                           (2000/C 163/76)
                 (Language of the case: Portuguese)
                                                                                (Language of the case: English)
By order of 14 December 1999, the President of the Third
Chamber, of the Court of First Instance of the European                  By order of 21 March 2000, the President of the Second
Communities has ordered the removal from the register of                 Chamber of the Court of First Instance of the European
Case T-518/97 to T-564/97: Fernando Eugénio de Abreu and                 Communities has ordered the removal from the register of
Others v Council of the European Union and Commission of                 Case T-186/99: Saehan Media Ireland Limited v Commission
the European Communities.                                                of the European Communities.
(1) OJ C 166 of 30.5.1998.                                               (1) OJ C 281 of 2.10.1999.
Removal from the register of Case T-565/97 to T-595/97 (1)
                                                                                Removal from the register of Case T-356/99 (1)
                        (2000/C 163/74)
                                                                                (2000/C 163/77)
                 (Language of the case: Portuguese)
By order of 14 December 1999, the President of the Third                                    (Language of the case: English)
Chamber, of the Court of First Instance of the European
Communities has ordered the removal from the register of                 By order of 28 March 2000, the President of the First Chamber
Case T-565/97 to T-595/97: João Luı́s de Sousa de Abreu and             of the Court of First Instance of the European Communities
Others v Council of the European Union and Commission of                 has ordered the removal from the register of Case T-356/99:
the European Communities.                                                Sonia Marion Elder and Robert Dale Elder v Commission of
                                                                         the European Communities.
(1) OJ C 166 of 30.5.1998.
                                                                         (1) OJ C 63 of 4.3.2000.
Removal from the register of Case T-615/97 to T-618/97 (1)
                        (2000/C 163/75)                                          Removal from the register of Case T-1/00 (1)
                   (Language of the case: French)                                                 (2000/C 163/78)
By order of 16 December 1999, the President of the Third
Chamber of the Court of First Instance of the European                                      (Language of the case: German)
Communities has ordered the removal from the register of
Case T-615/97 to T-618/97: Albery Frères and Others v                    By order of 31 March 2000, the President of the First Chamber
Council of the European Union and Commission of the                      of the Court of First Instance of the European Communities
European Communities.                                                    has ordered the removal from the register of Case T-1/00:
                                                                         Gustav Hölzl and Others v Commission of the European
(1) OJ C 94 of 28.3.1998.                                                Communities.
                                                                         (1) OJ C 63 of 4.3.2000.


title: Appeal brought on 30 August 1995 by the Commission of the European Communities against the judgment delivered on 29 June 1995 by the First Chamber (Extended Composition) of the Court of First Instance in Case T-32/91 between Solvay SA and the Commission of the European Communities (Case C-288/95 P)

text:
No C 286/4              EN                  Official Journal of the European Communities                                   28 . 10 . 95
of First Instance in Case T-31 /91 between Solvay SA and the                  such as to affect the interests of the addressee of the
Commission of the European Communities was brought                            decision .
before the Court of Justice of the European Communities on
30 August 1995 by the Commission of the European                       (') OJ No C 208 , 12 . 8 . 1995 , p . 21 .
Communities, represented by J. Curral and B. J. Drijber, of
the Legal Service, with an address for service in Luxembourg
at the office of C. Gomez de la Cruz .
The appellant claims that the Court should :                           Appeal brought on 30 August 1995 by the Commission of
                                                                       the European Communities against the judgment delivered
1 . set aside the Court of First Instance 's judgment in Case          on 29 June 1995 by the First Chamber ( Extended
    T-31 /91 (');                                                      Composition ) of the Court of First Instance in Case T-32/91
                                                                       between Solvay SA and the Commission of the European
                                                                                Communities
2 . dismiss the ground of annulment of the Commission's                                          Case C-288/95 P)
    decision based upon the lack of authentication;                                                 95/C 286/08 )
3 . remit the case to the Court of First Instance for a                An appeal against the judgment delivered on 29 June 1995
    decision on the other grounds of annulment alleged                 by the First Chamber ( Extended Composition ) of the Court
    against the Commission 's decision ;                               of First Instance in Case T-32/91 between Solvay SA and the
                                                                       Commission of the European Communities was brought
                                                                       before the Court of Justice of the European Communities on
4 . order Solvay to pay the costs of the appeal .                      30 August 1995 by the Commission of the European
                                                                       Communities, represented by J. Curral and B. J. Drijber, of
                                                                       the Legal Service, with an address for service in Luxembourg
Pleas in law and main arguments adduced in support:                    at the office of C. Gomez de la Cruz .
— Errors of law and reasoning as regards the admissibility             The appellant claims that the Court should :
    of Solvay's new plea in law, the organization of the
    procedure and the rules of proof and evidence . The                 1 . set aside the Court of First Instance's judgment in Case
    Court of First Instance committed an error of law by                      T-32/91 ( 1 );
    holding that the statements by the Commission to which
    reference is made could amount in themselves to a new              2 . dismiss the ground of annulment of the Commission 's
    matter of fact for the purposes of Article 48 ( 2 ) of its                 decision based upon the lack of authentication;
    Rules of Procedure . The Court committed an error of
                                                                        3.     remit the case to the Court of First Instance for a
    law by holding that there was no limit of time for raising
    a new plea in law under Article 48 ( 2 ) of its Rules of                   decision on the other grounds of annulment alleged
    Procedure . In ordering the Commission to produce the                      against the Commission 's decision;
    text of the decision at issue as authenticated at the time,
    the Court committed an error of law, in that it took a              4 . order Solvay to pay the costs of the appeal .
     mistaken view of its procedure and the rules of proof and
     evidence, and also made a mistake of reasoning in that it          Pleas in law and main arguments adduced in support:
     failed to explain in both the order of 25 October and the
     judgment why it had concluded that it should order the             The pleas in law and main arguments are the same as those
     Commission to produce that text .                                  in Case C-287/95 P ( 2 ).
 — Errors of law and reasoning as regards the purpose of                (') OJ No C 208 , 12 . 8 . 1995 , p. 21 .
     authentication and the consequences of a failure to                ( 2 ) See page 3 of this Official Journal .
     authenticate the decision at the time of its adoption. The
     Court committed an error of law by holding that
     authentication was a formal requirement which had to
     be observed independently of the existence or not of any
     evidence capable of casting doubt on the authenticity of
     the notified text . The Court committed an error of law            Action brought on 30 August 1995 by the Commission of
     and of reasoning by holding that authentication had to                the European Communities against the Italian Republic
     take place before the act was notified to the addressee,                                     ( Case C-290/95 )
     failing which it was void, and that the authentication
                                                                                ( 95/C 286/09 )
     carried out in the present case had been defective . The
     Court committed an error of law and incidentally failed
     to fulfill its obligation to give reasons for its judgment by       An action against the Italian Republic was brought before
     failing to consider whether the alleged defect had been             the Court of Justice of the European Communities on


title: Case T-1/17: Action brought on 2 January 2017 — La Mafia Franchises v EUIPO — Italy (La Mafia SE SIENTA A LA MESA)

text:
               20.2.2017

               EN

               Official Journal of the European Union

               C 53/45

         Action brought on 2 January 2017 — La Mafia Franchises v EUIPO — Italy (La Mafia SE SIENTA A LA MESA)
   (Case T-1/17)
   (2017/C 053/55)
   Language in which the application was lodged: English

      Parties

      Applicant: La Mafia Franchises, SL (Zaragoza, Spain) (represented by I. Sempere Massa, lawyer)

      Defendant: European Union Intellectual Property Office (EUIPO)

      Other party to the proceedings before the Board of Appeal: Republic of Italy

      Details of the proceedings before EUIPO

      Proprietor of the trade mark at issue: Applicant

      Trade mark at issue: EU figurative mark containing the word elements ‘La Mafia SE SIENTA A LA MESA’ — EU trade mark No 5 510 921

      Procedure before EUIPO: Proceedings for a declaration of invalidity

      Contested decision: Decision of the First Board of Appeal of EUIPO of 27 October 2016 in Case R 803/2016-1

      Form of order sought

   The applicant claims that the Court should:

               —

               annul the contested decision;

               —

               declare the contested European Union Trademark No 5 510 921 ‘LA MAFIA SE SIENTA A LA MESA’ valid;

               —

               order EUIPO to pay the costs.

      Pleas in law

               —

               Infringement of Article 52(1)(a) of Regulation No 207/2009;

               —

               Infringement of Article 7(1)(f) of Regulation No 207/2009.